author: Mr. Justice McSurely

text:
    Rose Komorowski, Plaintiff in Error, v. The Boston Store of Chicago, Defendant in Error.
    Gen. No. 34,795.

      Opinion filed October 19, 1931.
    Rehearing denied November 2, 1931.
    Corinne L. Rice and Simpson & Baker, for plaintiff in error.
    Moses, Kennedy, Stein & Baohrach, for defendant in error; Hamilton Moses, Albert Langeluttig and Arthur Magid, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff by this writ of error asks the reversal of a judgment entered upon the verdict of a jury finding defendant not guilty in an action brought by her to recover damages for an alleged false arrest and imprisonment.

The occurrence of which she complains took place September 23,1920, and the suit has been in the courts much of the time since then. Upon a prior trial the court directed a verdict for the defendant. In this court we reversed the judgment, holding that the case should have been submitted to the jury, and remanded the cause for a new trial. Schramko v. Boston Store, 243 Ill. App. 251. (Plaintiff has since married and the present suit is under her married name.) Upon the last trial the jury found the defendant not guilty. Plaintiff took the case to the Supreme Court upon the theory that the validity of a city ordinance was involved. That court, however, held to the contrary and the cause was transferred to this court. 341 Ill. 126.

As we are of the opinion that there must be another trial we do not narrate the testimony at length. The evidence for the most part is the same as it was when the case was before us the first time.

Plaintiff testified that she went to the jewelry connter of the defendant store and was waited upon by a sales clerk. She bought a bracelet, paying $1.19 for it, and the sales clerk helped to place it upon her wrist. She received a sales slip but inadvertently placed it on the counter and walked away without it; after she had gone a little distance she was approached by Charles E. Sullivan, who accused her of having stolen some jewelry, and against her protest she was taken by him to the sixth floor to the office of Mr. Mangold, the superintendent of defendant. There she was accused of stealing the bracelet. Mangold and Sullivan testified that she admitted this. Plaintiff testified that under coercion she signed a confession without reading it; that Mangold told her that if she would sign it she would not have to go to jail. Both he and Sullivan signed the confession as witnesses. Sullivan then led plaintiff out of the store and told her never to come in again or she would be arrested.

The status of Charles E. Sullivan was in controversy in both trials. He testified that he was employed by the McGuire & White Detective Agency, which paid him his wages, and was assigned to his work by Thomas McGuire, president and general manager of the detective agency; that on the date in question he was performing services or duties as store detective for this agency and was working for no other institution. He was also a special patrolman appointed by the superintendent of police of the City of Chicago by virtue of a city ordinance which gives the Superintendent of Police “on the application of any person or persons showing the necessity therefor, to appoint and swear in any additional number of special patrolmen to do special duty at any fixed place within the city, at the charge and expense of the person or persons by whom the application is made.” (Section 1921, Chicago Code.) The ordinance also provides that the person so appointed as special patrolman shall be subject to the rules and regulations governing the police force of the city and to such special rules and regulations as the general superintendent may make concerning such-police patrolmen; that they shall possess all the powers, privileges and duties “of regular police patrolmen, at the places for which they are respectively appointed, and may be removed or discharged from service at any time by the general superintendent, without assigning any cause therefor.” (Section 1922, Chicago Code.)

Sullivan was not a regular police officer employed by the City of Chicago, but was a special patrolman appointed by the superintendent of police at the request of and employed by the McGuire & White Detective Agency. A regular city policeman is appointed from an eligible list under civil service rules, receives his compensation from the city and may be discharged only under civil service regulations. Persons - appointed as special patrolmen for special services are not in the regular police service of the city. City of Chicago v. Edwards, 58 Ill. 252. Although Sullivan was not a regular police officer of the City of Chicago, yet at defendant’s request a number of instructions were given predicated upon the assumption that he was such a police officer. A typical instruction is defendant’s given instruction number 3, where the jury was told that if it believed that Sullivan in making the arrest “was acting solely in the performance óf his duties as a police officer of the City of Chicago,” there could be no liability against defendant. Instruction number 4 also refers to Sullivan as “engaged in the performance of his duties as a police officer of the City of Chicago.” The same thing occurs in instructions numbers 5, 10, 13, 20, 22, 44, 47, 48, 49 and 50. Such instructions were prejudicial in assuming that Sullivan was a regular police officer of the City of Chicago. He properly should be described as a special patrolman employed by the McGuire & White Detective Agency as a store detective, and instructions if any as to his status should so describe him. While technically the powers and duties of such a special patrolman are the same as those of a regular police officer, yet an arrest by a regular police officer would have a different aspect from the acts in this respect of an employee of the defendant or of the detective agency working for defendant. In the former case he is in the service of the public generally; in the latter case he is primarily responsible not to the public but to his employer. His continued employment depends upon giving satisfactory service to his employer. The instructions criticized not only ignored this difference, but in effect asserted that no such difference existed.

In this connection it should be mentioned that 39 instructions were given to the jury at defendant’s request. To note all the criticism which might be made against many of these instructions would unduly lengthen this opinion. Many of them were highly technical in verbiage and not calculated to be of any assistance whatever to the jury. The practice of giving an excessive number of instructions has been repeatedly condemned. Daubach v. Drake Hotel Co., 243 Ill. App. 298. We heartily agree with the vigorous language in Adams v. Smith, 58 Ill. 417, condemning this practice.

Defendant introduced in evidence a written contract between itself and the McGuire & White Detective Agency, dated September 3,1907, and running for two years. There was evidence that by an oral agreement this contract was continued until 1923, when a new agreement was drawn. This would cover the time of the alleged false arrest. This distinguishes this record from the prior record, where there was no evidence as to what the contract was at this time.

Defendant claims that by reason of this contract it is established that Sullivan was not its servant, but the servant of McGuire & White. If a contract is in writing, complete in itself and unambiguous in its terms, its construction is for the court and not for the jury. Hartley v. Red Ball Transit Co., 344 Ill. 534; Rosenbaum Bros. v. Devine, 271 Ill. 354; Pioneer Fireproof Const. Co. v. Hansen, 176 Ill. 100.

The instant contract recites, in substance, that the first party (the defendant) is conducting a department store in the City of Chicago and is desirous of employing the second party (McGuire & White Detective Agency) as a detective agency for the purpose of protecting its store, premises, stock of merchandise, and other property, from shoplifters and other thieves and offenders; that the second party shall"perform these services by employing two detectives at the store who shall act as detectives from eight o’clock in the morning until six o’clock in the evening of each working day, said detectives devoting all their time and attention to protecting the store from shoplifters and thieves. The first party agrees to pay McGuire & White $10 a day for each working day. It was further agreed that the detectives employed by McGuire & White shall not “be subject to the order, direction, control or superintendence of said first party, or any of the officers, agents or employees of said first party, in the rendition of said service, but said second party (McGuire & White) shall have the sole and exclusive right to direct, order, control and superintend the conduct and action of said persons so employed by it in the rendition of said service; and the first party does hereby give to the said second party exclusive control and superintendence of all the details of said work and service, with full discretion to act as, in its judgment, it sees fit and proper in connection with all matters arising out of or relating to said work and service; and the said first party does hereby covenant and agree that it will not in any manner whatsoever interfere with the complete control, direction and supervision by said second party of said service and of the acts and conduct of its employees so used by it in connection with the performance thereof.” It was further agreed that the second party should have the exclusive right to select and determine the two persons who should render such services as detectives and that they should not be subject to discharge or removal by said first party or any of its officers or agents, and that in the performance of the services the two detectives should not arrest, detain or restrain any person ‘ ‘ except upon his own judgment or the judgment of an officer, agent or employee of said second party. ’ ’ The second party also covenanted to hold harmless the first party against any loss or damage that may be sustained or recovered against the first party by reason of any of the acts of agents of the second party.

Standing alone, this contract establishes the employment of Sullivan by the McGuire & White Detective Agency and not by the defendant, and hence in the absence of other circumstances defendant could not be called upon to respond in damages under the doctrine of respondeat superior. Livingston v. Boston Store, 221 Ill. App. 643; Niles v. Marshall Field & Co., 218 Ill. App. 142, and cases there cited.

However, a third party is not bound by such a contract, and extrinsic facts and circumstances may be put in evidence tending to show the construction which the parties themselves have placed upon the contract, and if such facts are controverted the whole question as to what the contract was should be submitted to the jury under proper instructions. Turner v. Osgood Art Colortype Co., 223 Ill. 629; Hartley v. Red Ball Transit Co., 344 Ill. 534. As we said under a similar point in Hartley v. Red Ball Transit Co., 259 Ill. App. 229:

“We are not holding that the written contract is conclusive. Any act or conduct on the part of a defendant inconsistent with the defense presented is generally admissible in evidence and is proper to be considered by a jury. Even though such evidence may have but a slight bearing upon the issue, it is not thereby rendered incompetent, but only its weight is affected. ’ ’

There was testimony, some -of which was controverted, as to the conduct of Mangold, defendant’s superintendent, which was competent as touching upon the question of whether or not defendant through him exercised any control over or took part in the incident. Among other items of evidence was that he had on his desk a pad of typewritten blanks or forms to be used in securing confessions, and one of these plaintiff signed under duress, as she claims; that he told Sullivan to leave the office for a time and then summoned him back to the office and told him to witness plaintiff’s signature and to take plaintiff out of- the store. Defendant is liable for the wrongful acts, if any, of its superintendent, Mangold, and the jury should determine whether he -exercised any control or direction over Sullivan on this occasion.

The rule is that a private corporation is not responsible for the acts of a special police officer or detective when the acts complained of are performed in carrying out his duties as a police officer, but where his movements are actively directed by the corporation who, directly or indirectly, pays for his services, he may in so doing represent the corporation and not the public, in which case the corporation may become liable for his acts. Zygmuntowicz v. American Steel & Wire Co. of New Jersey, 240 Mass. 421.

Complaint is made of the rulings on the admissibility of evidence. It was proper for plaintiff to testify as to the truthfulness or untruthfulness of the alleged confession, and she should have been permitted to relate the circumstances under which she signed it.

The court’s remark with reference to this alleged confession, “That is your exhibit. You are bound by your own evidence. You can’t impeach your own exhibit,” directed towards plaintiff’s counsel, was prejudicial in its nature as tending to cause the jury to believe that the statement in the alleged confession was true.

The memorandum given by the saleswoman to plaintiff, which she sought to introduce in evidence, should have been admitted.

Other alleged errors may not occur again on the next trial.

Defendant has made certain assignments of cross-errors but they were, in substance, presented upon the former hearing by us and what we said in our first opinion disposes of them. Other assignments of cross-error do not seem to be argued in defendant’s brief.

For the reasons above indicated the judgment is reversed and the cause remanded.

Reversed, and remanded.

O’Oohhor, P. J., and Hatchett, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Tony Willis, Defendant in Error, v. Joseph W. Doratis et al. Pullman Trust & Savings Bank, Plaintiff in Error.
    Gen. No. 34,847.

      Opinion filed October 19, 1931.
    Eugene P. Kealy, for plaintiff in error.
    L. A. Sherwin, for defendant in error.
   Mr. Justice McSurely

delivered the opinion-of the court.

The Pullman Trust & Savings Bank by this writ of error seeks the reversal of an order which set aside a prior judgment adverse to plaintiff, Tony Willis, and also the reversal of a judgment against defendants for $125 entered upon the finding of the court upon trial after judgment against the plaintiff had been set aside.

In this court the bank has committed a number of irregularities which would justify us either in striking its brief or in dismissing the writ. Its brief and abstract do not give the title of the case correctly, but have transposed the position of the parties. Although the judgment ran against Joseph W. Doratis, Anna Doratis and Pullman Trust & Savings Bank, a corporation, the bank alone sued out the writ.of error, but no order of severance as to the other defendants has been obtained. The brief which purports to be filed on behalf of the bank is signed not by plaintiff in error but by the United States Fidelity & Guaranty Company, a corporation, by its attorney, which company is not a party to this suit, so that, strictly speaking, there is no brief filed on behalf of the Pullman Trust & Savings Bank.

However, as the judgment is small, we have disregarded these irregularities and have considered the case upon its merits. There is no bill of exceptions and the matter is presented solely upon the statutory record.

July 24, 1924, Tony Willis brought suit against defendants alleging, in substance, that the Pullman Trust & Savings Bank had issued its cashier’s check to the order of Joseph W. and Anna Doratis for the sum of $125; that plaintiff cashed this check for Doratis and his wife and subsequently presented it to the bank, which refused payment. The case came on for trial in December, 1924, before Judge Borrelli, one of the judges of the municipal court and the same judge who entered the last order and judgment. The record shows that in December, 1924, an order was entered finding the issues against the plaintiff and judgment was entered accordingly. March 29, 1927, plaintiff obtained leave from Judge Borrelli to file his petition asking that this judgment be vacated. The petition, in substance, alleged that at the prior hearing the case was continued with the understanding that plaintiff would be advised when the matter came up again; that he was not so advised and did -not know that the suit had been subsequently dismissed. Judge Borrelli treated the motion as made under section 89 of the Practice Act, Cahill’s St. ch. 110, If 89, and after hearing entered an order vacating the judgment of December 2, 1924, and reinstating the cause. Subsequently, the defendants moved that this order be vacated and set aside, which was done, followed by a counter-motion of the plaintiff to vacate the judgment of Decernber 2, 1924, nunc pro tunc as of December 2, 1924, which motion was sustained and the cause was set for trial. July 1, 1930, the record shows the cause came on for trial in regular course before Judge Borrelli and all the parties were present. Postponements were had and the final trial was held July 7, 1930, at which time all the parties were present and evidence was heard and respective counsel presented arguments to the court, whereupon the court found the issues against defendants and assessed plaintiff’s damages at $125. Defendants moved for a new trial and in arrest of judgment, which motions were overruled. Appeal was prayed and bond filed, which appeal was subsequently dismissed, and this writ was prosecuted.

It is unnecessary to consider the various points made by the attorney of the Pullman Bank, none of which go to the merits of plaintiff’s claim, for by his participation in the final trial of the case he waived all prior irregularities. Judge Borrelli had jurisdiction of the subject matter and, if the defendants wished to question the jurisdiction of the court when the case was reinstated, they should either not have appeared at all or limited their appearance to an objection to the jurisdiction of the qourt. They did not do so but participated in the trial, thus waiving the question of jurisdiction. Zandstra v. Zandstra, 226 Ill. App. 293, and cases there cited.

While we have animadverted upon the irregularities committed by defendant bank, the brief of the attorney for the plaintiff should also be criticized as containing a mass of recitals of alleged facts which do not appear in the record.

For the reasons indicated the judgment is affirmed.

Affirmed.

O’Connor, P. J., and Hatchett, J., concur.


text:
    The People of the State of Illinois, Appellee, v. Frank Janssen, Appellant.
    Gen. No. 35,128.
    Opinion filed October 19, 1931.
    A. H. Brown and A. J. W. Appell, for appellant; A. J. W. Appell, of counsel.
    John A. Swanson, State’s Attorney, and Herman S. Weinberg, Assistant State’s Attorney, for appellee.

      Kirkland, Fleming, Green & Martin, for petitioner Walter Brandenberg; Joseph M. Taussig, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an appeal by defendant from an order pursuant to a petition filed January 6, 1931, under section 89 of the Practice Act, Cahill’s St. ch. 110, ji 89, which vacated a prior order entered January 13, 1930, also entered pursuant to a motion under section 89 of the. Practice Act, which latter order expunged from the record an adjudication on January 5, 1927, that Frank Janssen was insane.

Both counsel have presented the matter upon'the theory that both motions under section 89 were properly filed and their respective merits are argued in the briefs. However, we are of the opinion that section 89 is not applicable to an inquest to determine whether or not a person is insane and, therefore, the county court should not have entertained either motion.

Section 89 of the Practice Act provides that the writ of error coram nobis is abolished and that all errors of fact committed in the proceedings of any court of record “and which, by the common law, could have been corrected by said writ” may be corrected upon motion in writing upon reasonable notice, etc. In Chapman v. North American Life Ins. Co., 292 Ill. 179, are stated the facts which at common law would be sufficient to cause a judgment to be reversed by the writ of error coram nobis, namely, that the nominal defendant was dead, an infant without a guardian, a feme covert, “or a person insane at the time of the trial.” This would seem to exclude an inquest of insanity.

At an early period in England the custody and control of lunatics was vested in the king, who had anthority to initiate an inquest as to the sanity of the subject. Later this authority was delegated to the lord chancellor as representative of the crown, which authority was not exercised by the chancellor by virtue of his general powers as a chancellor but was of a very limited nature conferred by special grant. Here, the State in its character as parens patriae exercises the same power over the persons of lunatics as was formerly exercised by the king through the lord chancellor. Dodge v. Cole, 97 Ill. 338.

Our statute, chapter 85, entitled “Lunatics,” is drawn upon the theory that the proceedings thereunder are of a special nature. It provides that when any person is supposed to be insane, any reputable citizen of the county in which the patient resides or is found may file with the clerk of the county court a statement in writing setting forth that the person named is insane or unsafe to be at large or suffering under mental derangement, and that the welfare of himself and others requires his restraint or commitment to some hospital or asylum for insane. This statement must be accompanied by the names of witnesses, one of whom at least must be a physician having personal knowledge of the case. Other details of procedure are prescribed, clearly indicating that the proceeding is not one at common law but partakes of the nature of a special chancery proceeding, following the practice as it was in England. The statute also provides that appeals shall be allowed to the circuit court from any order made or rendered under the act. Authority to discharge patients is vested in the department of public welfare under certain stated conditions. Also the act provides that any person confined as insane shall be entitled to the benefits of the writ of habeas corpus, and if the court entertaining the writ shall find that the person has been restored to reason it shall so adjudge.-

The writ of error coram nobis was confined to proceedings at law. It is a common law writ and chancery courts had no jurisdiction to issue the same; this for the reason that in chancery the court may at any time, either by motion or by a nunc pro tunc order or by a motion in the nature of a bill of review, correct the record or make the decree or judgment speak the truth. Bradford v. White, 130 Ark. 532; 1918 L. R. A., p. 1177; 34 C. J., p. 393.

If Janssen desired to question the insanity proceedings held in January, 1927, he could have done so by appeal or writ of error, but a motion under section 89 of the Practice Act has no place in a proceeding of this kind. The county court, therefore, should not have entertained the motion made in January, 1930. For the same reason, the court should not have entertained the second motion in January, 1931, under section 89. However, as the order of the court on the second motion vacated the prior order which expunged the adjudication of insanity, the record in the insanity proceedings now stands as it was originally and as it should be, and we shall not disturb it.

A further consideration is this: Assuming that both motions were properly before the court, Walter Brandenberg, who signed the statement in writing that Janssen was insane or suffering under a mental derangement, as provided by Cahill’s St. eh. 85, fí 3, should have been notified of the first motion which sought to expunge the finding that Janssen was insane. No such notice was given. A lunacy proceeding is an inquisition by public authorities on behalf of the public, and no one is wholly a stranger to the proceedings. In Joost v. Racher, 148 Ill. App. 548, it was held that it was volitional whether the party who signed the original petition in an inquest should appear or not in subsequent proceedings; that if such person is interested in any way, there is no good reason why he should not appear.

The record shows the special interest of Branden-berg. After Janssen had been adjudged insane he was committed to an asylum for the insane, and after a few months he was released on a writ of habeas corpus presented to his Honor -Judge Jesse Holdom, sitting in the superior court, and it was ordered that Janssen “be and hereby is restored to all the rights and privileges of a sane person.” Thereafter Janssen brought a suit at law against Brandenberg to recover damages on account of Brandenberg’s part in the insanity proceedings. Brandenberg filed a plea in that case setting up as a defense the adjudication of insanity. Thereupon the first motion to expunge th£ order finding Janssen insane was presented, counsel stating that the motion was for the purpose of voiding the special plea filed in the case against Brandenberg. The petition of Janssen purported to set forth errors in the record of the insanity proceedings. Without particularizing, it should be noted that the petition did not set forth the true state of the record. If Brandenberg had been notified of this motion he could have appeared and contested it. As he had no notice and did not appear, an appeal by him from the order entered would have been of no avail, as the petition on its face justified the order. It would seem clear, therefore, that Branden-berg, provided the second motion under section 89 was proper, had the right to contest it. He was vitally interested in maintaining the status quo of the record in the insanity proceedings, so as to justify his special plea in the damage suit against him.

However, we are of the opinion, as first above stated, that neither motion should have been entertained by the county court. As reversing the last order and remanding the cause would serve only to confuse the record and as we have said the record of the insanity proceedings now stands as it was originally, we shall enter in this court an order of affirmance without intending thereby to be understood as giving onr approval to the filing of the two motions under section 89 in a proceeding of this sort.

Affirmed.

O’Connor, P. J., and Hatchett, J., concur.


text:
    Denney & Company, Appellant, v. Southern Pacific Company, Appellee.
    Gen. No. 35,170.
    Opinion filed October 19, 1931.
    Rehearing denied and opinion slightly modified November 2, 1931.
    O’Connell, McGlinn & 0’Gallagher, for appellant; Joseph M. Connery, Harry C. Barnes, J. V. Be Laney, Leo N. HoGlinn and Hieran P. O’Gallagher, of counsel.
    John A. Sheean, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff appeals from an adverse judgment entered upon a hearing of its suit by the court, claiming $495.10 as damages sustained by it on certain goods delivered to defendant for transportation in interstate commerce. The shipment moved under a bill of lading which provided that suit must be instituted not later than two years and one day from the date the claims are declined. Suit was commenced within this period, but when the case.was called for trial on December 5, 1929, plaintiff did not appear and the suit was dismissed for want of prosecution. In the meantime the period of limitations fixed by the bill of lading had expired. Plaintiff then sought to avail itself of the rights given by section 2 of the amendment to the Illinois Statute on Limitations, Cahill’s St. ch. 83, H 26. This gives the right to a plaintiff, under certain circumstances, one of which is a non-suit suffered by him, to commence a new suit within one year after the judgment against him. Plaintiff, pursuant to this statute, commenced a new suit on December 4, 1930, which was within one year from the date its suit was dismissed but was after the expiration of the two years and one-day limitation in the bill of lading.

The trial court sustained defendant’s motion to strike the statement of claim and has certified to this court certain facts and a question of law. Both counsel have treated this as a correct statement of the record.

The question presented is whether, as defendant argues, the limitation period contained in the bill of lading is the final and only period within which plaintiff could bring suit, or whether plaintiff, having-brought suit within this period which subsequently has been dismissed, is entitled after the bill of lading-period of limitations has expired to avail itself of the additional one year within which to bring suit under section 2 of the amendment to the Illinois Limitations Act, Cahill’s St. ch. 83, 1f 26. Persuasive arguments may be made in favor of either construction, but we are of the opinion that the better reásoning favors the construction contended for by defendant and that the trial court correctly sustained its motion to strike the statement of claim.

In Adams Express Co. v. Croninger, 226 U. S. 491, the court said with reference to the control by Congress of interstate traffic, that this control “supersedes all the regulations and policies of a particular State upon the same subject. ... It embraces the subject of the liability of the carrier under a bill of lading which he must issue and limits his power to exempt himself by rule, regulation or contract. Almost every detail of the subject is covered so completely that there can be no rational doubt but that Congress intended to take possession of the subject and supersede all state regulation with reference to it. Only the silence of Congress authorized the exercise of the police power of the state upon the subject of such contracts. But when Congress acted in such a way as to manifest a purpose to exercise its conceded authority, the regulating power of the State ceased to exist. (Citing cases.)

“To hold that the liability therein declared may be increased or diminished by local regulation or local views of public policy will either make the provision less than supreme or indicate that Congress has not shown a purpose to take possession of the subject. The first would be unthinkable and the latter would be to revert to the uncertainties and diversities of rulings which led to the amendment. The duty to issue a bill of lading and the liability thereby assumed are covered in full, and though there is no reference to the effect upon state regulation, it is evident that Congress intended to adopt a uniform rule and relieve such contracts from the diverse regulation to which they had been theretofore subject.”

In Missouri, Kansas & Texas Ry. Co. v. Harriman Bros., 227 U. S. 657, the limitation as to the time to commence suit contained in the bill of lading was sustained, the court saying that the reasonableness of the period of limitations is a federal question and “is withdrawn from the field of State law or legislation.”

We are of the opinion that Congress has assumed exclusive control of the subject of shipments under interstate commerce and that the conditions named in the bill of lading are binding and exclusive of any State regulation. The very purpose of the federal legislation is to make the provisions regulating interstate commerce uniform without regard to local legislation upon the subject. To permit a shipper to bring suit under section 2 of the Illinois Limitations Act, Cahill’s St. ch. 83, H 26, after the period in the bill of lading had expired, would violate this rule of uniformity. The federal law makes no provision for the commencing of a new suit after the period of limitations contained in the bill of lading has expired.

The ruling of the trial court is proper and its judgment is affirmed.

Affirmed.

O’Cohnor, P. J., and Hatchett, J., concur.


author: Mr. Justice Matchett

text:
    Cornelius Mackey et al., Appellees, v. William Sherman et al., Appellees. Appeal of Traders Investment Company, Appellant.
    Gen. No. 35,080.

      Opinion filed October 19, 1931.
    Joseph F. Grossman, for appellant'.
    Ellis & Hackett, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.

This is an appeal from a decree entered upon defendant’s cross-bill by which the Traders Investment Co., as assignee of the contractor, sought to establish a mechanic’s lien against certain premises known as 5012 South Michigan avenue in the City of Chicago. The cause was heard upon exceptions to the report of the master to whom the cause had been referred. All the exceptions but one were overruled, the report of the master was otherwise confirmed and the cross-bill dismissed for want of equity.

The facts are not in dispute. On March 12, 1928, defendants to the original bill, William Sherman and Lillie Sherman, were in possession of the premises in question under a written agreement made March 15, 1927, with the original complainants, Cornelius Mackey and Mary Louise Mackey. The premises were improved by a brick and stone residence. On March 12, 1928, without the knowledge, consent or approval of the Mackeys, the Shermans made an agreement with the Craft Construction Co., assignor of the Traders Investment Co., cross complainant, to make certain repairs in the basement of the premises for a consideration of $1,375.48. The Construction Co. completed its work and furnished extra labor and material to the amount of $75.88 at the request of the Shermans. The last work done and delivery made was on March 23, 1928. On that date the claim was assigned to the cross complainant. There is a balance due of $1,280.86, with interest from July 23,1928.

The agreement for the purchase of the premises was not fulfilled by the Shermans, and the Mackeys, as original complainants, filed their bill praying for a specific performance of the agreement. The cause was put at issue and referred to the master, who reported in favor of complainants, and a decree in their favor was entered on January 14, 1929.

The decree found due to the Mackeys from the Slier-, mans the principal amount of $14,615, with $401.88 as interest, and other items for taxes, etc., making a total sum due of $15,778.42, which the decree directed the Shermans to pay within 30 days. The decree directed that the Shermans pay the mechanic’s lien claim of cross complainant, and the lien was found to be a cloud upon the title to the property. The decree also provided that the contract or agreement should be can-celled and the lien removed as a clond; that if the Shermans complied with these provisions of the decree, then the Maekeys should execute and deliver a deed of conveyance; that otherwise the Shermans should surrender possession of the premises within a time fixed by the court.

By agreement of the parties their rights under the cross-bill were reserved for adjudication upon further report of the master.

The solicitor for cross complainant says that but one point is urged, namely: “Where a contract for the sale of real estate has been entered into, and the vendee has ordered an improvement without the consent or knowledge of the vendor, is the interest of the vendor to any extent subject to the lien of the mechanic?” It is contended in behalf of cross complainant that in equity the vendee is the owner and the vendor an incumbrancer in the nature of a purchase money mortgagee, and that therefore the claimant has a lien against the property, prior and superior to the interest of the vendor to the extent that the property has been enhanced in value by the improvement, as provided in section 16 of the Mechanics’ Liens Act, Cahill’s St. ch. 82, ff 16. Section 1 of that act (see Cahill’s St. ch. 82, ff 1; Smith-Hurd’s Ill. Rev. Stats., chap. 82, sec. 1, p. 1812) provides:

“That any person who shall by any contract or contracts, express or implied, or partly expressed or implied, with the owner of a lot or tract of land, or with one whom such owner has authorized or knowingly permitted to contract for the improvement of, or to improve the same, . . . shall have a lien upon the whole of such lot or tract of land and upon the adjoining or adjacent lots or tracts of land. . . . This lien shall extend to an estate in fee, for life, for years, or any other estate or any right of redemption, or other interest which such owner may have in the lot or tract of land at the time of making such contract or may subsequently acquire therein. . . .”

Section 16 of the same act provides:

“No incumbrance upon land, created before or after the making of the contract under the provisions of this act, shall operate upon the building erected, or materials furnished until a lien in favor of the persons having done work or furnished material shall have been satisfied, and upon questions arising between incumbrancers and lien creditors, all previous incumbrancers shall be preferred to the extent of the value of the land at the time of making of the contract, and the lien creditor shall be preferred to the value of the improvements erected on said premises. . . .”

Cross complainant relies upon the case of Moore v. Smith, 24 Ill. 512, which was reconsidered and, as it says, corrected in 26 Ill. 392. That case first came before the Supreme Court of Illinois at the April term, 1860. It appeared that Smith, the owner in fee of real estate, made a written contract with one Bay to sell the real estate to him at a given price, payments to be made in five years from December 31, 1854, with interest payable annually, and Bay to pay all taxes assessed upon the land and keep the premises insured in Smith’s name. Smith covenanted to make a deed upon the performance of the contract by Bay, and if Bay defaulted he was to be considered the tenant at will of Smith at a rent equal to 20 per cent interest. Payment by Bay was made a condition precedent, and time of the essence of the condition. There was at the time of the contract a building on the premises which was used as a packing establishment. On June 13, 1857, Moore, who had a contract to furnish machinery and fixtures for a distillery, filed a petition for a mechanic’s lien on the premises, and on December 9, 1858, obtained a decree, which so adjudged. There was an order of sale, and in February, 1859, Moore purchased for $500 and a deed was executed to him by the commissioner who made the sale. In May, 1859, one Todd broke into the distillery without the consent of Moore or Smith and took away the distillery fixtures. He shipped the articles to the complainant Ash, who sold them for $610.85. Moore and Smith both claimed the property or the proceeds thereof, Moore under the decree and sale, and Smith under his title as owner of the fee. Ash filed a bill of interpleader to compel them to settle their differences. The trial court decided that Smith was entitled to the proceeds. The court said that the first question was whether upon default in payment by Ray the possession by the purchaser was converted into a tenancy at will without any further act of the parties; that Smith had never in any way recognized the occupants as tenants at will; that it did not appear that Smith or Moore was in possession when Todd entered and removed the fixtures; that' Moore succeeded to all the rights of Ray, Todd and one McMahon in the premises by his purchase; that if the contract of purchase had not been forfeited, he acquired the right to complete the payment and enforce a conveyance; that if it had been forfeited and converted into a tenancy at will, he succeeded to the right to possession of the property, subject to all the terms of the lease. The court held that a mere default in payment did not forfeit the contract and that the contract was mutually binding until a forfeiture should be declared by the vendor; that the vendor had failed to exercise the' right, and that until he did so Moore must be regarded as an assignee of Ray and as a purchaser; that a purchaser let into possession might remove fixtures placed upon the premises by him at any time during the continuance of the contract, and that such a purchaser, failing to make payment so as to lose the benefit of his purchase, was a tenant from year to year or at will and therefore entitled to remove fixtures which he might have attached to the freehold while in possession. Raymond v. White, 7 Cow. 319, 321, was cited. The decree was reversed and the cause remanded. On further proceedings in the trial court Moore had judgment and Smith appealed to the Supreme Court. The cause was heard at the April term in 1861. Smith v. Moore, 26 Ill. 392. The court stated that it had been asked to review the decision announced in 24 Ill. 512, and cheerfully did so; that it had been held on the first appeal that a purchaser of land by an executory contract and let into possession, had the right to remove the improvements placed upon the premises subsequent to the purchase; that having ratified their removal by another, he was entitled to the proceeds for which they were afterwards sold; that it was urged upon argument that such a purchaser occupies to the vendor the relation of a mortgagor and as such had no right to remove either prior or subsequent improvements from the premises, and that whatever was placed upon the land, if permanent in its nature, became a part of the land itself and might not be severed by the purchaser. The court said that the prior decision had been based upon Raymond v. White, 7 Cow. 319, 321, but that upon this hearing the attention of the court was called to numerous cases holding that the relation which the purchaser of land under an executory contract occupied to the seller was that of a mortgagor. (Boone v. Chiles, 10 Pet. 177, 224; Crockford v. Alexander, 15 Ves. 138.) The court further said:

“After a careful examination of these cases,, together with others not referred to, we are satisfied that the rule is well settled, that for some purposes, and to some extent, he may be held to be an equitable mortgagor., But we do not understand these cases as asserting the doctrine that to all purposes, and to the full extent, he is a mortgagor. His relation is in some respects similar, and in others entirely different, and we can only say, that the relation of the parties to each other is that of vendor and vendee, with the rights and obligations which that relation imposes.”

The court said that the then 20th section of the mechanics’ lien law gave a lien to the mechanic or material man upon the improvements and materials superior to that of the prior incumbrancer; that under the latter section the person holding the prior lien must look alone to the property as it was before the mechanic’s or material man’s lien attached, and that the lien claimant must look to the improvement or materials, unless the proceeds of the sale was sufficient to satisfy both, or there was a surplus of either fund, which, if necessary, might be -applied to the satisfaction of the other lien. The decree was therefore affirmed upon the authority of Gaty v. Casey, 15 Ill. 189.

Cross complainant points out that the doctrine of the Smith v. Moore case has become deeply rooted in the Illinois law, and a long line of cases is cited to that effect. Among these are Smith v. Price, 42 Ill. 399 (where the court said that the premises were in fact the property of the plaintiff vendee subject to the lien of the defendant vendor for the unpaid balance of the purchase money), and Lombard v. Chicago Sinai Congregation, 64 Ill. 477 (where the relationship of vendor and vendee was thoroughly discussed). Baldwin v. Pool, 74 Ill. 97; Wright v. Troutman, 81 Ill. 374; Hutchinson v. Crane, 100 Ill. 269; Sutherland v. Goodnow, 108 Ill. 528; Fuller v. Bradley, 160 Ill. 51; Lewis v. Shearer, 189 Ill. 184; Forthman v. Deters, 206 Ill. 159; Rhodes v. Meredith, 260 Ill. 138; Waggoner v. Saether, 267 Ill. 32; Ward v. Williams, 282 Ill. 632; Miedema v. Wormhoudt, 288 Ill. 537; Davidson v. Dingledine, 295 Ill. 367; Voris v. McIner, 339 Ill. 340, are also cited. The law in all these cases is based upon the maxim, of equity which regards that as done which ought to be done.

Cross complainant contends, however, that Hickox v. Greenwood, 94 Ill. 266, is directly contrary to these cases. In that case Hickox, the owner of the fee, contracted to sell to Peat, payment to be made in instalments. Peat paid the first instalment and went into possession and fenced the ground. He then made a contract with Greenwood to build a house on the lot. Greenwood began his work and had it partly completed when Hickox and Peat entered into an agreement that Hickox would advance Peat $230 on a credit of 10 years, and Hickox executed a bond by which he agreed to convey the lot upon the payment of the loan and the purchase price amounting to $430. Upon a bill filed by Greenwood to foreclose his lien, a decree was entered finding that $495.85 was due to him' and that $250.08 was due to Hickox. Peat was ordered to pay both sums, and it was provided that in case of his default in these respects, the premises should be sold and the amounts due Hickox and Greenwood paid pro rata. Hickox appealed. Greenwood relied on section 17 of chapter 82 of the Revised Statutes of 1874, which (substantially like our present statute) provided that no incumbrance created before or after the making of the building contract should operate upon the building until the mechanic’s lien was satisfied, and that in such case the previous incumbrance should be preferred to the amount of the value of the land. The court said that the interest of Hickox was not a mere incumbrance. He was the owner of the fee and must be paid the purchase price before required to surrender the title. The contract was with Peat. The lien of Greenwood was therefore on the interest of Peat, not on the fee held by Hickox; that the legislature in using the term “incumbrance” had in mind the matter which was made subject to the mechanic’s lien. Peat was the owner only in the sense of the statute. As to the $230 loaned by Hickox to Peat after the building contract was made, his lien was subordinate to that of Greenwood. The Smith case is not referred.to in the opinion of the court, but the Hickox case has been repeatedly recognized.

In Henderson v. Connelly, 123 Ill. 98, the Supreme Court said that it was entirely satisfied with the laws laid down in the Hichox case, but that it was not applicable there, because the contract of sale provided that the vendee should construct a building, on account of which a lien was claimed. In Paulsen v. Manske, 126 Ill. 72, it was held that the vendee was the owner within the meaning of the statute so that he could subject his interest to the Mechanics’ Liens Act; that within the sense of' the statute the vendee was the owner to the extent of the interest he owned, and that the vendor having authorized the erection of the improvement, his interest also was subject to the lien. Hickox v. Greenwood was, however, cited and approved.

In Williams v. Vanderbilt, 145 Ill. 238, a lessee made improvements on demised premises under contract with the lessor. The Supreme Court said, citing the Hichox case, that the party with whom the contract was made was regarded as the owner to the extent of the interest he owned, and that it was that interest which was subjected to the lien and the interest of the landlord was not subject to the lien in the absence of the authorization of the improvements by him. In Granite City Lime & Cement Co. v. Pitzman, 161 Ill. App. 228, it was held that trustees who had contracted to sell lands were not incumbrancers within the meaning of section 16 of the Mechanics’ Liens Act, Cahill’s St. ch. 82, jf 16, but that having knowingly permitted improvements to be made by the vendee prior to his having made payments under the contract, their interest in the land was subject to the lien under section 1 of the act.

Cross defendants also cite Capps v. National Union Fire Ins. Co., 318 Ill. 350, which, however, was an action at law in assumpsit on a fire insurance policy. It was there held that a vendee under an executory contract of sale had neither the legal nor equitable title to the property covered by the contract, and a judgment in his favor was reversed. In National Fire Ins. Co. v. Three States Lumber Co., 217 Ill. 115, it was held that a contract to convey did not make the ownership of the vendor conditional so as to prevent recovery on a fire insurance policy. In Roberts v. Willmering, 220 Ill. App. 620, it was squarely held by the Appellate Court of the second district that an owner who contracted to sell retained both the legal' and equitable title and was not a creditor, incumbrancer or purchaser within the meaning of the Mechanics’ Liens Act.

As a matter of fact cross complainant rests its case on the fundamental maxim of equity that equity looks upon that as done which ought to be done. (Story’s Equity Jurisprudence, 14th Ed. vol. 1, sec. 81.) Or if we adopt a more comprehensive statement (Pomeroy’s Equity Jurisprudence, 4th Ed., vol. 1, sec. 364); “Equity regards and treats that as done which in good conscience ought to be done.” The maxim so defined seems to be regarded as the foundation of all distinctively equitable property rights, equitable assets and interests, both real and personal. As an immediate effect of this principle, contracts to purchase and sell lands made upon a valuable consideration and in other respects complying with the requisites prescribed by equity, as soon as executed and delivered, give to the vendee an equitable estate in the land, subject simply to a lien in favor of the seller as security for the payment of the price, while the vendor becomes equitable owner of the purchase money. (Pomeroy’s Equity Jurisprudence, vol. 1, sec. 372.) This is the doctrine of equitable conversion and is generally accepted and fully recognized by the decisions of the courts of this state upon which the cross complainant relies. While generally true, it by no means follows that the rule is without its exceptions. As stated in Story’s Equity Jurisprudence, 14th Ed., vol. 1, sec. 81:

“There are exceptions to the doctrine where other equitable considerations intervene, or where the intent of the parties leads the other way; but these demonstrate, rather than shake, the potency of the general rule.” (Craig v. Leslie, 16 U. S. 563.)

Unlike the Smith case, upon which cross complainant relies, the record in this case discloses the terms and conditions of the agreement providing for the conveyance of the premises. In the first place, it discloses that the agreement to convey was conditional upon the payment by the Shermans and the performance by them of the covenants mentioned in the contract. The agreement further provided that the Shermans should not and would not suffer or permit any mechanics’ liens to attach against the premises or improvements thereon; that every contract for repairs and improvements should contain an express, full and complete waiver and release of all liens or claims for liens against the premises, and that no contract, either oral or written, should or would be executed by the Shermans for repairs or improvements upon the premises, except that the same should contain sueh express waiver or release of lien by the party furnishing the labor or material, and that these should be promptly delivered to the bank named for the benefit of the Mackeys; that the agreement would not be transferred or assigned without the previous written consent of the Mfackeys; that no right, title or interest, legal or equitable, in the premises should vest in the Shermans until the delivery of a deed or until full and complete payment of the purchase price should have been made; that the contract, should not be filed with the recorder of deeds and if filed should become null and void, cancelled and discharged; that the Shermans should keep the improvements on the premises insured against loss by fire, and that upon failure of the Shermans to perform the covenants, the contract might be forfeited at the option of the Mackeys; that upon the termination of the contract by lapse of time, forfeiture or otherwise, all improvements should belong to and become the property of the Mackeys; that the covenants therein contained should extend to and be obligatory upon the heirs, executors, administrators and assigns of the parties.

If there is a case holding that a court of equity will apply and enforce the doctrine of equitable conversion under a contract in which the intention of the parties is clearly and definitely expressed that it shall not be applied, that case has not been called to our attention. Cross complainant says that defaults of the vendee were waived by payment of subsequent instalments. Stow v. Russell, 36 Ill. 18; Monson v. Bragdon, 159 Ill. 61; and Plummer v. Worthington, 321 Ill. 450, are cited. There is no doubt of that fact. The filing of the bill for specific performance takes away any uncertainty upon that point, but the default to pay the amount found due under the decree is established by uncontradicted evidence and makes further discussion of the point unnecessary. It is urged that the provision of the contract that the vendee would not suffer a mechanic’s lien to attach does not affect the rights of the lien claimant, and Huebner v. Kernajzer, 259 Ill. App. 540, is cited to that point. The opinion of the court states this rule which was correct under the facts there appearing. There was in that case no question of the vendor’s rights as against a lien claimant upon a contract made with the vendee; on the contrary, the rights of the holder of a prior trust deed were considered a matter for which the mechanics’ lien statute specifically provides. Carey-Lombard Lumber Co. v. Jones, 187 Ill. 203, is also cited, but is not applicable. That case holds that a lessor stipulating in a lease for improvements to be made on the premises, subjects his interest in the premises to mechanics’ liens arising out of the improvements.

Cases almost innumerable are cited to the point that the provision that no legal or equitable title or interest should vest in the vendee is repugnant to the essence of the contract and therefore void. Rice v. Webster, 18 Ill. 331, is one of the cases cited. None of them is applicable for reasons which are apparent upon a casual examination. We have considered the numerous authorities cited, desiring to give to this case the fullest consideration. It might have been easily disposed of by the citation of Roberts v. Willmering, 220 Ill. App. 620, holding that the law with reference to the creation of a lien under the mechanics’ lien law is strictly, construed against such right. (Cronin v. Tatge, 281 Ill. 336; Liese v. Hentze, 326 Ill. 633; Crowen v. Meyer, 342 Ill. 46; Schoenberg Mfg. Co. v. Broadway Central Hotel Corp., 259 Ill. App. 40.)

After all the matter resolves itself into a question as to what was the intention of the legislature in the enactment of the Mechanics’ Liens statute. If it had been the intention to subject the rights of vendors to liens of this kind, notwithstanding the contract for improvements was made without their knowledge, acquiescence or authority, the legislature would have said so.

The decree is affirmed.

Affirmed.

O’Connor, P. J., and McSurely, J., concur.


text:
    William Brandenburg Company, Appellee, v. George Spitz, Appellant.
    Gen. No. 35,277.
    Opinion filed October 19, 1931.
    Arthur V. Goebel, for appellant.
    Webber H. Sommers and Walter F. Sommers, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

Plaintiff sued defendant upon a promissory note dated December 12, 1930, for $175, due 60 days after date, with interest at 6 per cent per annum, to the order of defendant, signed “Lakewood Plaza Apt. Hotel by George Spitz, Secretary.”

The statement of claim averred that defendant was personally liable on this note because at the time the note was executed there was no such corporation as the Lakewood Plaza Apartment Hotel licensed to do business in Illinois and there has been none organized since that time. The statement of claim apparently relies on paragraph 149, chapter 32 (the G-eneral Incorporation Act) which provides:

“If any person or persons being, or pretending to be, an officer or agent or board of directors of any corporation, or pretended corporation shall assume to exercise corporate powers or use the name of such corporation or pretended corporation before it has been authorized to do business, under the laws of this State, then they shall be jointly and severally liable in the name of such corporation or pretended corporation, and suits at law may be prosecuted therefor by creditors individually. ’ ’

The affidavit of merits averred that the note was executed in renewal of another note of the Lakewood Plaza Building Corporation of which defendant was secretary; that defendant received no consideration for the note but that defendant apparently inadvertently executed the note in the name of the Lakewood Plaza Apartment Hotel instead of the Lakewood Plaza Building Corporation.

Upon trial the court excluded the evidence tending to show this defense, made a finding for plaintiff and entered judgment thereon. Defendant admitted upon the trial that no such corporation as the Lakewood Plaza Apartment Hotel was in existence when he signed the note and stated when called as a witness by plaintiff that he never had any connection with a corporation of that name and that there was never at any time any such corporation to his knowledge. He said that he saw the note upon the date which it bears; that he signed it at that time and mailed it to plaintiff. By way of defense defendant undertook to show a conversation with a Mr. Peterson, who represented plaintiff before the note sued on was signed, but an objection by plaintiff was sustained by the court because the conversation occurred before the signing of the note. The record indicates that later the court reversed its ruling, but apparently defendant did not continue the examination on this point. Defendant was then asked whether there was another note in the hands of plaintiff on December 12 when the note sued on was executed, but an objection by plaintiff to this question was sustained. An objection to evidence tending to show that after mailing the note sued on to plaintiff, plaintiff returned to defendant another note signed by the Lakewood Plaza Building Corporation, was also sustained. The president of the Lakewood Plaza Building Corporation was called as a witness by defendant, but questions as to whether that corporation had any business dealings with plaintiff and as to whether it ever gave a note to plaintiff were objected to by plaintiff and the objections were sustained.

We think the court erred in these rulings. Defendant had a right to show the facts with reference to the execution of both notes and that the second note was given in consideration of the first. This evidence was material because, if true, it tended to show that the execution of the signature to the second note was inadvertent as averred in the affidavit of merits. The statute upon which plaintiff relies is highly penal in its nature and is not intended to apply to a case where a supposed name of a corporation which does not in fact exist is used by inadvertence.

For the error in excluding the evidence offered, the judgment will be reversed and the cause remanded for another trial.

Reversed and remanded.

O’CorrrroR, P. J., and McSurely, J., concur.


author: Mr. Presiding Justice Hebel

text:
    Hazel Armstrong, Administratrix of the Estate of George J. Armstrong, Deceased, Appellee, v. Chicago & Western Indiana Railroad Company and Chicago & Eastern Illinois Railway Company, Appellants.
    Gen. No. 34,680.

      Opinion filed October 21, 1931.
    Rehearing denied November 2, 1931.
    Edward W. Rawlins, Donald B. Craig, Fred H. Kelly, James W. Craig, Jr. and James Craig Van Meter, for appellants; Kenneth L. Richmond and John F. Connors, of counsel.
    Joseph D. Ryan, for appellee; Frank Johnston, Jr., of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This is an action of trespass on the ease brought by the plaintiff, Hazel Armstrong, administratrix of the estate of George J. Armstrong, deceased, against the defendants, Chicago and Western Indiana Railroad Company, a corporation (hereinafter referred to as C. & W. I. R. R. Co.), and Chicago and Eastern Illinois Railway Company, a corporation (hereinafter referred to as C. & E. I. Ry. Co.), to recover damages under the Federal Employers’ Liability Act, Cahill’s St. ch. 114, If 321 et seq., on account of the death of George J. Armstrong from injuries sustained by him while in the employ of the C. & E. I. By. Co., in what is commonly called the 83rd street yards of the C. & W. I. B. B. Co. at Chicago, Illinois, on the 15th day of August, A. D. 1928.

The case was tried and a verdict of $30,000 was rendered against the defendants. After motions for a new trial and in arrest of judgment were made and overruled, judgment was entered against the defendants for the amount of the verdict. This appeal is by both defendants.

The declaration in this case consists of three counts. The first count, in substance, alleges that on the 15th day of August, 1928, the defendants were in possession and control of and operating as common carriers by railroad various lines of steam railroad in and through the City of Chicago, county of Cook and State of Illinois, and divers other States of the United States, and on said date were engaged in interstate commerce; that at said time plaintiff’s intestate, George J. Armstrong, was employed by and was at work for the C. & E. I. By. Co., one of the defendants, in such interstate commerce as a switchman and conductor, and, in due course of his employment, was engaged in moving divers freight cars in interstate transportation to and through a certain yard and premises known as the 83rd street yard in the City of Chicago, which said yard and premises were then and there owned, operated and controlled by the first above named defendant, C. & W. I. B. B. Co.; that said defendant allowed, permitted and authorized the C. & E. I. By. Co., one of the defendants, to operate cars, engines and trains upon and over the said railroad aforesaid, and by virtue of said right so granted by the C. & W. I. B. B. Co. defendant, to the C. & E. I. By. Co., defendant, the C. & E. I. By. Co. became and was the agent of the C. & W. I. B. B. Co.; that said defendant became liable for the negligent acts of the agents, servants and employees of the C. & E. I. By. Co. under the laws of the State of Illinois and the Federal Employers’ Liability Act; that it was the duty of the defendants to furnish the plaintiff’s intestate with a reasonably safe place to work and to use reasonable care to furnish him in the nighttime while it was dark, a clear track free from dangerous obstructions; that on the said date in the nighttime and while it was dark, plaintiff’s intestate was lawfully engaged with other servants of the said C. & E. I. By. Co., defendant, in switching, moving and propelling said freight cars upon and along a certain lead or running track in said yard; that the said defendants neglected to furnish the plaintiff’s intestate with a reasonably safe place to work, and failed and neglected to keep the running track free from dangerous obstructions, and in the nighttime while it was dark, negligently allowed and permitted certain unloaded freight cars to be in, upon and in close proximity to said lead or running track; that while the plaintiff’s intestate was engaged in the due course of his employment, and while he was standing or stationed upon the end of the car or caboose which was being pushed and propelled, said end car or caboose came into violent contact and collision with the said cars, which were allowed and permitted to be upon and in dangerous proximity to said track, by reason of the negligence of the defendants, and as a direct result plaintiff’s intestate sustained physical injuries which resulted in and caused his death.

The second count is like the first, except that instead of relying upon the alleged duty of both defendants to furnish plaintiff’s intestate a safe place to work, said count alleges: first, that the C. & W. I. R. R. Co. allowed unloaded cars to stand on its tracks, making it unsafe; and second, that the C. & E. I. Ry. Co. failed to furnish a clear track by permitting cars to be on the track; and third, that the C. & E. I. Ry. Co. could have, by the exercise of due care, discovered the cars in time to warn the plaintiff’s intestate.

The third count is like the first, except that instead of relying upon the failure of the defendants to furnish a safe place to work, it alleges that:

“(1) The Chicago & Western Indiana Railroad Company owned and used the yards in question for storage purposes; that cars in the yards if not braked, would roll down hill, fouling the running track; that these facts were not known or appreciated by plaintiff’s intestate; that the yard was unlighted; that the Chicago & Western Indiana permitted cars to stand on tracks without the brakes being set; that by reason of the negligence of the Chicago & Western Indiana the cars rolled down hill and fouled the running track.

(2) The Chicago & Western Indiana permitted and signaled plaintiff’s intestate to use the running track.

(3) The Chicago & Eastern Illinois Railway Company negligently required Armstrong to move cars upon the running track and over an unlighted yard without taking any reasonable precaution to render the track safe.

(4) All of this would have been known to the Chicago & Eastern Illinois Railway Company if it had used reasonable care to furnish a safe place to work.

(5) While riding on the end car, plaintiff’s intestate came into contact with cars or obstructions aforesaid, and received the injuries resulting in his death. ’ ’

After overruling the general and special demurrer filed by the defendants to each and all of the counts of the declaration, the defendants filed the general issue and several special pleas denying ownership and operation, setting up that the accident was caused by the sole negligence of the plaintiff’s intestate and alleging that the plaintiff’s intestate assumed the risk. The defendants did not introduce any evidence at the close of the plaintiff’s case.

The facts offered by the plaintiff are, substantially, that the said George J. Armstrong was a freight conductor, who had been in the employ of the C. & .E. I. By. Co. for about eight years prior to his- fatal injury; for about two years prior to that time he had been working on the same run and had been in charge of the-same crew, making deliveries to the same yard at night just as he was doing on the night in question. Armstrong was 37 years of age and in good health at the time of the accident; had perfect hearing and eyesight; had never had any serious accident or injury; he earned about $200 a month, and left surviving him the plaintiff, his wife, and one minor daughter, both of whom he supported from his earnings; that at about 11:30 p. m. on the 14th day of August, 1928, Armstrong, together with his crew, left Yard Center, which is several- miles south of the place where the accident happened, for the purpose of carrying out several switching operations. The crew consisted of the engineer, ¡9. I. Miller, who testified in the case; the fireman, Evers; the conductor George J. Armstrong; the head brakeman, D. Hornaday, who died prior to the trial, and the rear brakeman, F. Gibbons. When the train left Yard Center it headed approximately north. It consisted of a locomotive' engine, tender, 35 freight cars and one caboose. The engine was Terminal No. 1802, capable of handling 100 cars. The cars in the train averaged about 40 feet in length. Seven cars of the 35 were left at the C. B. I. & P. yards at Oakdale. The engine then moved in a northerly direction, with 28 cars and the caboose on the freight main track No. 4 of the C. & W. I. B. B. Co., known as the Dalton branch. Sixteen cars were designated for delivery to the Belt Bailroad at 89th street, and 12 to the C. & W. I. B. B. Co. at the 83rd street yards. Before the train came into the 83rd street yard, rear brakeman Gibbons dropped off while the train was going north, to line the switches for the Belt yard. The train proceeded north, and then northeast beyond 83rd street, crossing the interlocking plant at 80th street, and proceeded northeast on Belt track No. 2, until the whole cut of the 28 cars and the caboose were north of the switch located immediately south of 80th street and leading down into the running track in the 83rd street yards of the C. & W. I. B. B. Co., so that the whole train could proceed to the south on the running track. After the train cleared the switch, the crew were given signals by the switch tender to push the train back on the running track, and the train backed in a southerly direction down the running track. This running track ran south from 80th street along the west side of the 83rd street yards of the C. & W. I. B. B. Co. under the viaduct where the accident happened, and on down to the Belt yards. There were about 23 storage or delivery tracks in the yards, running north and south. One of the storage tracks was known as No. 8, one as No. 9, one as No. 10, one as No. 11, etc., the highest numbered track being farthest east. A yard lead track extended from the running track near its north end connecting with certain of the storage tracks, including track No. 8. There was a switch where the yard lead connected with the running track and switches at the different places where the storage tracks started off the yard lead. Near the south end of the running track two lead tracks connected the storage tracks with the running track. One of them, which connected with storage track No. 8 joined the running track just under the viaduct where the accident occurred at 87th street. The running track, switch track and yards belonged to the C. & W. I. B. B. Co. and the train was being operated by the C. & E. I. By. Co., and Armstrong and the other members of the train crew were employees of the C. & E. I. By. Co. The train being moved by Armstrong and Ms crew, con-tamed cars Maded with interstate freight, so that at the time of his fatal injury Armstrong was engaged in interstate commerce.

After Armstrong’s train entered the C. & W. I. R. R. Co. yard, it backed south on the running track until the caboose and the 16 cars to be delivered to the Belt road were clear of the yard lead switch which connected with track Nb. 8. Hornaday, the head brakeman, handled the yard lead switch and gave the signals to the engineer when he was backing on the running track. The engine and the 12 remaining cars were then disconnected, pulled north until they cleared the yard lead switch, and the 16 cars and the caboose were left on the running track. The head brakeman threw the yard lead switch, gave the engineer a signal to back up, and the engine and the 12 cars backed down the lead track. Armstrong then threw the switch where track No. 8 joined the yard lead, and signaled the engineer to come on back, and the 12 cars moved back from the lead into track No. 8. As the cars moved backward the head brakeman was hanging on the side of one of the cars near the rear end of the cut with his lantern. When the car which he was on reached the place where Armstrong was standing, he dropped off. After the 12 cars had been backed part way into track No. 8, the train barely moved, and as the train had gone about 8 or 9 car lengths the engineer felt a slight jar upon the engine; that he the engineer got a signal from Armstrong to move backward. Armstrong then was standing about four car lengths south of the switch, which allowed the ■ cars to go back from the lead onto storage track No. 8. He gave the engineer a signal to keep backing, and he continued backing four car lengths and the length of the engine, or until the north end of the engine was about 30' feet south of the switch from the lead into track No. 8. Armstrong then signaled the engineer to stop, and then he gave a signal to the head brakeman to cnt the engine off from the cars, which was done. At the time of this switching operation a number of cars were on track No. 8. Armstrong then signaled the engineer to go ahead. The engine went north on the lead to the running track, then on Armstrong’s signal, backed south on the running track connected with the 16 cars and caboose which had been left standing there. Armstrong walked straight west to the caboose and got on it. He was the only man on this car. Armstrong gave a signal to the engineer from the caboose to back down the running track, and the engine and 16 cars backed down the running track at a speed of 10 or 12 miles an hour. The next thing the engineer knew was that he felt a collision when the caboose was directly under the viaduct, and of his own volition put on the air. No signal was given at any time by Armstrong, and he made no attempt in any way to stop the train. The engineer then left his engine and walked back and found under the viaduct that the cars had come out from the north on track No. 8, and had fouled the running track; that there were about 1% cars which were squarely on the running track, so that as the cars in charge of conductor Armstrong backed down, they backed squarely into the middle of the second car from the south, which came down on track No. 8 and fouled the running track under the viaduct at 86th street. Under the viaduct on the outside of the track, there were two lighted switches, one at the north end and one at the south end. They were lined green, indicating clear for the running track. Four cars and the caboose were derailed, and Armstrong was injured. He never regained consciousness, except for a very few seconds, and was taken to the hospital and died there shortly after the accident.

The weather on the night of the accident was fair— a little haze was lying next to the ground. The yards were not lighted.

There is evidence that the yard is a gravity yard, and also that there was a uniform established practice and custom relative to braking or anchoring cars that were placed on these tracks in the yard in question; that bulletins were posted by the superintendent over his signature about braking cars and having brakes placed upon these cars; and that orders were also issued by the yardmaster relative to the necessity of anchoring and blocking cars upon the switch tracks in this yard.

For th'e purpose of the record the defendants stipulated, in substance, as follows:

. “That, in the train handled by the plaintiff’s intestate on the night in question there were cars which contained interstate freight, that is, cars which had come out of the state and cars which were consigned and intended to go out of the state; that in the train of 12 cars shoved on track 8, there were cars of interstate character; and also that the track upon which the 12 cars were set in that had been referred to as No. 8, and the running track upon which they were moving at the time of the accident were tracks belonging to the defendant, the C. & W. I. R. B. Co., and it owned the tracks and yards.”

It is urged by the defendants that the trial court should have directed a verdict for the defendants in this case for the reason that the evidence failed to show any negligence on the part of either defendant, but that it did show that the fatal injury was caused by Armstrong’s own negligence.

They further contend that in order to establish liability under the Federal Employers’ Liability Act, Cahill’s St. ch. 114, jf 321 et seq., it is necessary for the plaintiff to establish that the C. & E. I. By. Co., Armstrong’s employer, or its servants, were guilty of some negligence as alleged in the declaration, which in whole or in part caused the» fatal injury. The kind or amount of evidence necessary to establish negligence is determined by the common law as construed by the federal courts, and the United States Supreme Court has often announced that mere proof of a defective condition and the happening of an accident is not sufficient to establish negligence, and unless the plaintiff produces evidence from which an inference may reasonably be drawn that the injury suffered was caused by the negligent act of the employer, there can be no recovery, and the case must be withdrawn from the jury. To this contention, the plaintiff replies that she does not contend that the relationship of master and servant between the defendants is created by the common law doctrine of master and servant, but that the relationship arises by reason of the Illinois statutes as construed by the Supreme Court, and that since by statutory construction Armstrong was' the employee, or servant -of both of the defendants at the time he was fatally injured, and since he was actually engaged in interstate commerce at that time, it follows that there is a joint liability of the defendants under the Federal Employers ’ Liability Act, provided that the evidence shows that either of the defendants was guilty of negligence or that both of them were guilty.

The authority of the C. & W. I. E. E. Co. to enter into an agreement with the C. & E. I. Ey. Co. for the use of its tracks and switching facilities in the 83rd street yard was granted under the provision of paragraph 61 of chapter 114 of Cahill’s Ill. Stats, in these words:

“That all railroad companies incorporated or organized under, or which may be incorporated or organized under the authority of the laws of this State, shall have power to make such contracts and arrangements with each other, and with railroad corporations of other States, for leasing or running their roads, or any part thereof; and also to contract for and hold in fee simple or otherwise, lands or buildings in this or other States for depot purposes; and also to purchase and hold such personal property as shall be necessary and convenient for carrying into effect the object of this Act.”

This provision of the statute has been construed by our Supreme Court to the effect that a grant or franchise to operate a railroad imposes a duty in the use and operation of its property as a railroad to do no unnecessary damage to the person or property of others, and when injury results from negligent or unlawful operation, whether by the corporation operating under the franchise, or by another corporation, or by individuals whom the owner authorizes or permits to use its tracks, the owner, as well as the user, will be liable, and the company which is permitted to use said tracks will be regarded as the servants and agents of the owner company.

In the case of Pennsylvania Co. v. Ellett, 132 Ill. 654, in passing upon this rule just referred to, the court uses these words:

“The law has become settled in this State, by an unbroken line of decisions, that the grant of a franchise, giving the right to build, own and operate a railway, carries with it the duty to so use the property and manage and control the railroad as to do no unnecessary damage to the person or property of others; and where injury results from the negligent or unlawful operation of the railroad, whether by the corporation to which the franchise is granted, or by another corporation, or by individuals whom the owner authorizes or permits to use its tracks, the company owning the railway and franchise will be liable. . . . While the company guilty of the negligence, — in this case, the Pennsylvania Company — will be liable for the damages resulting therefrom, the owner of the railroad to whom is granted the control and management of it will also be liable. The public may look for indemnity for injury resulting from the wrongful or unlawful operation of the road, to that corporation to which they have granted the franchise, and thus delegated a portion of the public service; and for this purpose the company whom it permits to use its tracks, and its servants and employee, will be regarded as the servants and agents of the owner company.” This construction , has been applied and sustained by the Supreme Court in the following cases: Chicago and Erie R. Co. v. Meech, 163 Ill. 305; West Chicago Street R. Co. v. Horne, 197 Ill. 250; Chicago and Grand Trunk R. Co. v. Hart, 209 Ill. 414; Chicago & E. I. R. Co. v. Schmitz, 211 Ill. 446.

It has also been held that the lessor and the lessee of a railroad track are not only jointly and severally liable to the general public, but that the rule applies also to the employees of the lessee. Chicago & Grand Trunk R. Co. v. Hart, supra.

The question to be considered is: Are the defendants liable under the Federal Employers’ Liability Act, and did the plaintiff establish the guilt of the C. & E. I. Ry. Co. for the negligence of its servants as alleged in the declaration, which in whole or in part caused the fatal injury to the plaintiff’s intestate f

The facts show that the switch tender employed by the C. & W. I. B. B. Co. controlled operation by signals, and that the C. & E. I. By. Co. train was directed and permitted to enter the yards of the C. & W. I. B. B. Co. and to use the switching facilities where the accident occurred. The C. & E. I. By. Co. voluntarily placed its engine and cars at the place and under the control and direction of the C. & W. I. B. B. Co., and for the time being, and for the purpose of switching, the switch tender of this road became the employee of the C. & E. I. By. Co. Therefore, under the rule of the Supreme Court, he became the employee of these defendants. This conclusion is fully sustained in the case of Wabash, St. Louis and Pac. Ry, Co. v. Peyton, 106 Ill. 534, wherein the court says:

“Again, this company was held to care for the safety of all persons whilst exercising its franchises, whether on its road or the road of another. This was the duty imposed by law when it received its franchises, and the duty inheres. whenever the company exercises them. This is a duty that attaches at all times, and at all places where the company operates its road. It was, then, the duty of appellant, by its servants, to see and know that the track was in good and safe condition, — not only to the passengers, but to those rightfully near to and liable to be injured by its being operated when in an unsafe condition. By slight attention this danger could have been seen and avoided. Appellant, by the contract, for the purpose of running into and out of the depot, made this portion of the track its own, and must be responsible for all injuries resulting from negligence in keeping or permitting it to be in an unsafe condition. Had this part of the road being used by appellant in fact belonged to it, and been operated by its servants, no one, we apprehend, would claim appellant would not be liable. Then, when it acquired the right to so use the road, and its use to be controlled by the road-master, and obstructed by him, or those under him, appellant must be equally liable. By the contract appellant yielded, instead of retaining, the necessary control to secure the safety of other persons. Moreover, the servants of appellant in charge of the engine were not prohibited from seeing and removing the obstruction, and it was their duty to have seen and removed it.”

■ This rule was further approved in the case of Hannibal and St. Joseph R. R. Co. v. Martin, 111 Ill. 219, wherein the court uses this language:

‘ ‘ The evidence shows that the train was made up by employees of the Chicago, Burlington and Quincy Railroad Company, and on its tracks, but for the appellant, and although a portion of the cars in the train came from the Chicago, Burlington and Quincy Company, and the balance came from the Wabash, St. Louis and Pacific Railway Company, when united, they constituted appellant’s train; and the use of the cars and tracks, and the labor in making up the train, were all to enable appellant to exercise its functions and perform its duties as a common carrier, and therefore the cars and tracks, and the servants employed in making up the train, so far as the rights of appellee are concerned, are to be regarded as the cars, tracks and servants of appellant. Wabash, St. Louis and Pacific Ry. Co. v. Peyton, 106 Ill. 534.”

From the stipulation of the parties it appears that at the time of the accident, the C. & E. I. Ry. Co. was engaged in interstate commerce, and while so engaged used the switch yards of the C. & W. I. R. R. Co. Under the decisions of Courts of Appeal, the rule is that where the lessee is engaged in interstate commerce at the time of the negligent operation and accident, the lessor likewise will be held to be so engaged at that time, which rule is applicable in the instant case, and was applied in the following cases: Lucas v. The Peoria & Eastern Ry. Co., 171 Ill. App. 1; Arens v. The Baltimore & Ohio Chicago Terminal R. Co., 213 Ill. App. 273; Lloyd v. Southern Ry. Co., 166 N. C. 24; North Carolina R. Co. v. Zachary, 232 U. S. 248.

In considering the contention that the court at the close of the plaintiff’s case erred in not instructing the jury to find the defendants not guilty, this court will consider this motion in the nature of a demurrer to the evidence, and all reasonable inferences arising from the evidence will be taken most strongly in favor of the plaintiff, McCune v. Reynolds, 288 Ill. 188, having in mind that an employer is not held to an absolute responsibility to furnish a safe place to work, but is charged with the duty of exercising reasonable care to that end.

From the fact that the switch tender signaled Armstrong to back his train into the yard, it may be inferred that the yard was reasonably safe for switching operations, especially where the evidence shows that it was the custom and practice to brake or block cars that were placed on storage tracks, which practice was evidenced by the bulletins issued by the superintendent to that effect.

It is also a part of the evidence that when the switching operation takes place in the nighttime, it is directed by the order. of the switch tender in the absence of the yardmaster, or clerk of the yard; that on the night of this fatal accident the yardmaster, or clerk, was not present, and it would be but a reasonable inference to conclude from the evidence that Armstrong was directed to place 12 cars on the track in question. It was rather unusual that the choice of a switch track — one of the 23 tracks used for that purpose — was left to this conductor on the night in question.

The defendants criticise the plaintiff’s suggestion that if the switch track would accommodate only. 62 cars, and that on the night of the accident 58 cars were on this track, by adding the 12 cars from Armstrong’s train and a gap of 4 car lengths between the 56 cars and the 12 cars switched onto the track, it would necessarily follow that 10 cars would be upon the running track, and contend that the plaintiff did not take into consideration the lead track, the length of which is not in evidence, which track connects with the storage track at the south end, and also with the running track under the viaduct where the accident occurred. It was a question for the jury to determine from the facts under the instructions of the court, and having done so, we are unable to say, as a matter of law, that the plaintiff is not entitled to recover from the defendants upon the facts established by the evidence under the pleadings in this case.

It is contended by the defendants that the court erred in allowing the witness C. J. Hochstadter to testify that Armstrong was careful in his habits, and assign as a reason that there were witnesses who saw sufficient of the accident to preclude the introduction of such evidence. The rule is that where there are no eyewitnesses to an accident causing death, it is proper to introduce testimony as to the habits of the deceased, and that he was a careful man, as tending to establish that the deceased, prior to his death, exercised care on the occasion of the accident.

In the present case the engineer testified fully about the accident, and although he did not actually see just what Armstrong was doing at the time he was struck, he did say that Armstrong got on the caboose of the train shortly before the accident and that he did not see him again until after the accident happened. Under the rule above stated, we believe there was no error in admitting this evidence of the witness Hochstadter. Illustrative of the rule that evidence of careful habits, in cases of this kind, is admissible, are the following cases: Chicago and Alton Ry. Co. v. Wilson, 225 Ill. 50; O’Donnell v. The Riter-Conley Mfg. Co., 172 Ill. App. 601; Greene v. Fish Furniture Co., 272 Ill. 148.

Complaint is made that the court erred in allowing the witness Schnaekenberg to express an opinion as to whether the cars on the storage track would have rolled Onto the running track if the brakes had been set on any of the cars. It is a matter of common knowledge that brakes set upon cars or automobiles will impede the free movement of the cars, and a jury is able to judge whether a car will move when braked. The error, if any, was harmless, as the evidence was not in conflict with 'common knowledge, Williams v. Louis, 204 Ill. App. 62, and will not justify a reversal on that ground.

Then again, the defendants complain that the witnesses Hochstadter and Lockwood were allowed to testify that they had received directions from the switch tender at the yards where to deliver cars at night. Plaintiff’s reply to this contention is that the défendants cross-examined the witness Schnackenberg with reference to the duties of the switch tender, and he testified that the switch tender had nothing tó do with the delivery track upon which the cars are set but; Following this, the evidence of the witnesses complained of was introduced. The rule on this question is that if one of the parties opens the way for the testimony objected to, there is no error in the admission of such evidence. Illinois Steel Co. v. Wierzbicky, 206 Ill. 201. Under this rule, the evidence objected to was not incompetent.

We are not convinced that the court erred in refusing to permit the defendants to prove by the witness Samuel I. Miller, engineer of the train crew as to whose duty it was to keep a lookout for obstructions as the train backed down the running track, for the reason that it would leave it to this witness to pass upon the question. Accordingly, the court did not err in its ruling.

We have considered the contention of the defendants that the trial court erred in denying the motion of the defendants to withdraw a juror upon the ground of alleged misconduct of plaintiff’s attornóy in making a remark during the examination of the witness Miller. We have reviewed the evidence and do not find that the remarks were of a prejudicial nature, or that there was any abuse by the court in the exercise of its discretion in denying such motion.

It is earnestly contended that the giving of the second and the fifth instructions for the plaintiff • was erroneous, for the reason that if the deceased was fatally injured because of the negligence of the servants of the C. & W. I. R. B. Co. without any negligence on the part of the C. & E. I. By. Co., he was not employed by the C. & W. I. B. B. Co. in interstate commerce. However, these instructions embody the plaintiff’s theory based upon the pleadings and evidence, and, in our opinion, are not erroneous, but fully justified both by the pleadings and the evidence.

The refusal of the court to give defendants’ tendered instructions numbered 1 and 2, was not error, nor were such instructions justified by the pleadings and the evidence. The point is made by defendants that unless the defendant C. & E. I. By. Co. was guilty of negligence, then before recovery could be had by the C. & W. I. B: B. Co. Armstrong must show that he was not guilty of contributory negligence. The theory of the plaintiff is that Armstrong was engaged in interstate commerce and was an employee of both defendants under the Federal Employers’ Liability Act, and unless the evidence justified such theory, the plaintiff cannot recover. The refused instructions under the pleadings and the evidence in this case are confusing and misleading.

The court did not err in refusing to give defendants ’ tendered instruction 4, which is based upon the theory that assumption of risk does not apply in an action between persons not in the relation of master and servant, but that in such case contributory negligence is a bar to recovery. This theory is not warranted by the evidence in the instant case.

Befused instruction 5, which limits recovery to not more than $10,000 under the State law in case of death caused by injuries, has no application to the facts in this case, where, if liability is established, the amount of damages will be controlled by the Federal Employers’ Liability Act.

Having considered the errors suggested by the defendants in this case, we find no such error as would justify a reversal. The judgment is accordingly affirmed.

judgment affirmed.

Friend and Wilson, JJ., concur.