author: Mr. Justice John J. Sullivan

text:
    Neuman Fier, Appellee, v. Chicago Orpheum Company, Appellant.
    Gen. No. 39,599.

      Opinion filed May 3, 1938.
    Winston, Strawn & Shaw, of Chicago, for appellant; G. B. Christensen and Douglas C. Moir, both of Chicago, of counsel.
    Samuel L. Golan and Henry A. Kalcheim, both of Chicago, for appellee; Louis N. Blumenthal and Eli A. Golan, both of Chicago, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This is an action for damages for personal injuries alleged to have been suffered by plaintiff, Neuman Fier, as the result of the negligence of the defendant, Chicago Orpheum Company. After a trial without a jury the court found the defendant guilty and. assessed plaintiff’s damages at $1,500 and judgment was entered upon said finding. This appeal followed.

This suit was commenced September 27, 1933, and plaintiff filed his amended declaration on July 12, 1934, consisting of two counts, the first alleging that defendant operated the Palace theatre in Chicago; that it was its duty to exercise ordinary care for the safety of plaintiff and to keep and maintain the stage, exits and wings of such theatre in a reasonably safe condition so as not to injure performers lawfully and by invitation of the defendant upon such premises; that on June 18, 1933, plaintiff was lawfully upon the stage of this theatre for the purpose of performing with his partner; that defendant, not regarding its duty, negligently and improperly permitted the said stage, or a portion thereof, to become in a dangerous and unsafe condition; that “by means of the premises and the negligence of the defendant, as aforesaid, the plaintiff was then and there caused to and he did fall to and upon the floor and divers objects there with great force and violence”; and that he thereby sustained severe and permanent injuries.

The second count, dismissed at' the close of plaintiff’s evidence, charged specifically that defendant negligently permitted a certain light or lamp with its cords and wires to be and remain in a dangerous and unsafe position on the stage so that in leaving said stage during the course of his act plaintiff came into contact with same and fell upon the floor of the stage.

Fier was employed as an accompanist by Tess Gfardella, whose stage name was Aunt Jemima. The only evidence in the record as to the alleged occurrence was that of plaintiff himself. He testified that as he was leaving the stage of the Palace theatre at about 4:15 p. m., June 18, 1933, after playing three numbers for Aunt Jemima, “I made three steps from the piano, sort of hurried steps, and I stepped on a ball . . . my left foot stepped on a ball and I was thrown to the floor ... I stepped on the ball with my left foot and I fell to the floor on that side, the left side, turning my ankle, and I did not know what I had struck, and as I stood up I saw this ball trickle down to the foot-lights ... it was án inflated ball, it was a red India rubber ball . . . about three inches in diameter. ’ ’ Plaintiff also testified that he did not know how the ball “got on the stage,” that the ball may have been tossed there “from the audience,” that the first time he ever saw the ball was just after the accident, that he had never seen it used in any act, and that he did not know where it came from nor who owned it.

The act in which plaintiff performed was shown four times daily for the week commencing June 16, 1933. After he claims to have fallen plaintiff proceeded to the south wing of the stage and immediately returned for an encore. He performed twice more that day in the act with Aunt Jemima and finished his week, making a total of 18 appearances after the alleged accident.

The stage of the theatre faces east and is 60 to 65 feet wide and 37 feet deep. During the performance in which plaintiff participated, the piano which he played was located in the center of what is known as the apron or front portion of the stage, which tilts downward toward the footlights. Plaintiff made his entrances and exits from the south wing of the apron while Aunt Jemima used the north wing; At the northeast opening off the stage, opposite the apron, an electrician was stationed, one of whose duties was to look out for and to remove any properties, paraphernalia or obstructions which might be on the stage. A like duty was performed by a property man, who was stationed on the south side of the apron of the stage. In addition to directing the orchestra, it was the duty of the musical director, who, during a performance stands in the pit directly in front of the center of the stage facing same, to watch the stage and see that it was kept free from articles or properties not being used in the immediate act. In the event he located an article or object out of place or that did not belong on the stage, he had a system of signalling devices to advice the electrician and property man of the presence of such article or object so that same would be removed. The electrician, property man and musical director testified that they inspected the stage both before and after the act in which plaintiff performed and that there was nothing out of place or that did not belong there. Defendant’s first notice of the alleged accident was by plaintiff’s assertion to one of the property men backstage that he had fallen over a ball belonging to a juggler named Cavanaugh, who appeared on the same bill two acts prior to plaintiff’s act. Two property men immediately thereafter checked Cavanaugh’s trunk and found all twelve of the juggling balls used by him, which were canary yellow in color, properly in place in a bag located in said trunk.

Defendant’s theory, as stated in its brief, is that “it is not an insurer of the safety of actors appearing on its stage; that the plaintiff cannot recover unless he establishes the negligence he alleged; that he completely failed in his proof because, notwithstanding repeated attempts, no showing was made that defendant knew of the presence of any ball upon the stage, or that it was there for such a length of time that defendant should have known of its presence. Defendant’s further theory is that, although plaintiff at some time or place sprained his ankle, he never fell on defendant’s stage.”

Plaintiff’s theory is that he “was an invitee and as such, the defendant, occupying and controlling the theatre, owed the plaintiff the duty to exercise reasonable care to have the stage on which he was to perform in a reasonably safe condition; that the defendant herein failed to exercise ordinary care in the maintenance of its stage and that the injuries suffered by the plaintiff were due to the defendant’s neglect and breach of duty aforesaid.”

The law is clear that it was defendant’s duty to exercise ordinary care to maintain the stage upon which plaintiff was to perform and did perform in a reasonably safe condition. The stage being in defendant’s control between acts, it was its duty to do whatever was necessary to clean it at the conclusion of each act and prepare it for the one to come and to have the stage free from all defects, which by the exercise of reasonable care could have been discovered and guarded against. (Franklin v. Maine Amusement Co., 133 Me. 203, 175 Atl. 305.) Inasmuch as the negligence charged against defendant was a nonfeasance in that it permitted the stage to become in a dangerous and unsafe condition, it must appear not only that the rubber ball was on the stage and that plaintiff was injured by stepping or tripping on it, but also, either that the presence of the ball on the stage was actually known to the defendant through some of its agents or servants or that it was there for such a length of time prior to the alleged injury that defendant, if exercising ordinary diligence, would or should have known of its presence.

It must be conceded that there is no evidence that defendant had actual knowledge of the presence of the rubber ball on the stage. Was there then sufficient evidence or any evidence adduced upon the trial that the rubber ball had been on the stage long enough to charge the defendant with knowledge of its presence in time to remove it? Plaintiff’s act was performed entirely on the apron of the stage. The point where he testified he stepped or tripped on the hall was on the apron of the stage. The undisputed evidence was that the apron or front part of the stage tilted downward toward the footlights. He did not notice the hall until after he fell, when he saw it “trickle” down to the footlights. No other witness saw a hall of any kind on the stage or saw plaintiff fall or even stumble over a ball or anything else. There was no testimony by plaintiff or any other witness as to how long the ball had been on the stage, how it got there, to whom it belonged, or where it came from. Thus, there is no evidence in the record which even remotely suggests notice to the defendant of the presence of a ball on the stage. But plaintiff says on page 25 of his brief that “it is a fair, just and reasonable inference from the testimony of the witnesses . . . that the ball was left on the stage at the conclusion of Cavanaugh’s juggling act and that it remained on the stage for not less than twenty minutes to a half hour” until plaintiff stepped on it. Because of the absolute lack of evidence as to either actual or constructive notice to defendant, plaintiff was compelled to resort to this inference theory, but no such deduction is permissible from the evidence. Cavanaugh’s act, in which he juggled rubber balls, appeared on the program two acts before plaintiff’s act. It was also performed entirely on the apron of the stage. McConnell’s act, which followed Cavanaugh’s act and immediately preceded plaintiff’s act, was a comedy sketch lasting 16 minutes and occupied the entire stage. The difficulty with the inference plaintiff suggests is that it is illogical and that there is no evidence in the record from which it could be fairly or reasonable drawn. Inferences are only deducible from proven or admitted facts. What plaintiff really asks is that the negligence charged be inferred by inferring the essential element thereof that one of the balls used by Cavanaugh was dropped on the stage and permitted to remain there for at least 20 minutes, notwithstanding the undisputed evidence that the alleged ball upon which plaintiff stepped was not a ball belonging to Cavanaugh. The stage was inspected at the conclusion of the Cavanaugh act by at least three of defendant’s employees, whose duty it was to do so, and they testified that there was no rubber ball on same at that time. It was likewise inspected with the same result after the McConnell act. As heretofore said, plaintiff’s act was performed entirely on the apron of the stage. He was moving across such apron when he claims to have stepped on the rubber ball and fallen. It is uncontradicted that the apron of the stage tilted downward toward the footlights. Plaintiff describes the rubber ball as being about the size of a tennis ball and we are unable to comprehend how it was physically possible for such a ball, even though it had been inadvertently left on the inclined apron of the stage, to have done anything except immediately roll down to the trough on the stage side of the footlights.

Plaintiff concedes in his brief that it is the rule “that in cases of this character the evidence must establish either that the defect was actually known to the defendant or that the same existed for a sufficient length of time prior to the injury that the defendant in the exercise of reasonable care would or should have known it” but strenuously insists that this rule is qualified and its force dispelled by the legal principles enunciated in Moore v. American Stores Co., 169 Md. 541, 182 Atl. 436, where the court said at pp. 438-440:

“Applying these principles, which appear to be quite well settled and generally accepted, to the facts of this case, it cannot be said as a matter of law that the evidence permitted no rational inference that appellant’s fall was caused by the appellee’s negligence. That evidence is quite clear that the floor on which appellant slipped and fell was dark, and that its condition was not apparent to one using the facilities of the store in an ordinary way. That part of it on which appellant fell was adjacent to the meat counter, and was greasy and slippery, so slippery that defendant’s feet went from under her, she slid or skidded on it, and the heels of her shoes left distinct skidmarks lighter in color than the rest of the floor. It cannot be assumed that, if appellee knowingly permitted its floor to be in a greasy and unsafe condition, it had fully discharged its duty to exercise ordinary care for the protection of persons whom it had invited to its store. Appellee’s reply to that conclusion is (1) the fact that the floor was greasy is no evidence of negligence, and (2) that the fact that the floor was ‘greasy looking’ merely created the inference that at some indefinite time in the past it had been oiled. The answer to the second criticism is that there was no evidence of any kind that the floor had ever been oiled. It may have been oiled, waxed, painted, greased, of dark wood or merely dirty, so that no inference that it had been oiled is compelled by the fact that it was dark or by evidence that it was greasy. The other criticism, that the fact that the floor was greasy ‘does not prove negligence, ’ is true only to this extent, that while in itself it may- or may not have proved negligence, it was certainly evidence of negligence, and, if shown to have existed under circumstances charging the appellee with notice of the condition, it was proof of negligence.
“The facts of this case are sufficient to impute to the appellee constructive knowledge of the greasy condition of the floor. . . .
“ . . . Any breach of that duty resulting in injury to one lawfully on its premises as an invitee would constitute negligence, if, but only if, it knew, or by the exercise of reasonable care could have discovered, the conditions which created the peril, and had no reason to believe that its invitees would realize the risk involved therein. Restatement of Law of Torts, § 343; 45 C. J. 651, Negligence, § 25 and notes. It is not necessary that there be proof that the inviter had actual knowledge of the conditions creating the peril, it is enough if it appear that it could have discovered them by the exercise of ordinary care, 45 C. J. 653 et seq., so that, if it is shown that the conditions have existed for a time sufficient to permit one under a duty to know of them, to discover them, had he exercised reasonable care, his failure to discover them may in itself be evidence of negligence sufficient to charge him with knowledge of them. Id. What will amount to sufficient time depends upon the circumstances of the particular case, and involves consideration of the nature of the danger, the number of persons likely to be affected by it, the diligence required to discover or prevent it, opportunities and means of knowledge, the foresight which a person of ordinary care and prudence would be expected to exercise under the circumstances, and the forseeable consequences of the conditions.” That case expressly recognizes the rule that such a breach of duty as is charged against defendant here constitutes negligence “only if, it knew, or by the exercise of reasonable care could have discovered the condition that created the peril” and the employment of the qualifying language therein as to matters that should properly be considered in determining what amounts to a sufficient time in which to discover the defect or dangerous condition in order to impute constructive knowledge of same to a party charged with the breach of duty was not intended to impair the force of such rule. The facts in the Moore case are readily distinguishable from the facts in the instant case. The greasy condition of the floor adjacent to the meat counter in the store necessarily existed for sometime before the plaintiff in that case slipped on same and from its very nature should have been discovered by the exercise of reasonable care on the part of the owner or operator of the place of business. An entirely different situation is presented here since there is no evidence of the presence of the red rubber ball on the stage prior to the time plaintiff claims he stepped or tripped on same.

Plaintiff contends that the case of Franklin v. Maine Amusement Co., supra, is squarely in point and that the reasoning of the court and the conclusions reached therein afford ample authority for the affirmance of the judgment in the case at bar. In its opinion in the Franklin case, the court said at pp. 204-206:

“The plaintiff, a vaudeville actor, was injured while carrying on his act on the stage of Keith’s Theatre in Portland, which was controlled and operated by the defendant. The plaintiff’s engagement called for three performances a day for three days and the accident happened during the last performance. The act was billed as ‘ Trifles With Rifles in Class and Speed, ’ and was an exhibition of markmanship carried through with great rapidity. It consisted of shooting a piece of chalk from his assistant’s mouth, shooting out candles, shooting a cape from a woman’s back, and several other feats, which unquestionably required not only a high degree of skill, but a steady nerve and strict attention to the work at hand. In the six minutes, during which the act continued, there were fired approximately a hundred and fifty shots. In one of the features the plaintiff ran from the wings on the left of the stage as the audience faced it, and, as he neared the opposite side, sliding on his feet and leaning backwards on his left hand, he fired at a target in the back of the stage. According to his story, as he was doing this stunt, his feet struck a wet spot on the stage, and he was thrown forward so suddenly that his left leg was broken. His claim is that this dampness was caused by water, which had not been wiped up, spilled on the stage in an earlier act, which went on about two hours and a half before his. It appears that in this act some water was spilled. The defendant contends that the amount was less than a teacupful, and was dropped on the opposite side of the stage from where the plaintiff was injured. The plaintiff claims that the water was left on different parts of the stage and in a much larger amount. It is apparently conceded that the stage between acts was in the control of the defendant, and that it was its duty to do whatever was necessary to clean it at the conclusion of each act and to prepare it for the one to come. The plaintiff testified that on previous occasions the water had been mopped up at the conclusion of the act in question. However that may be, it seems to be unquestioned that on the night of the accident this precaution was not taken. The defendant argues that in a steam-heated theatre the small amount of water left would disappear in two and a half hours. The plaintiff’s own testimony, that of his stepdaughter, who assisted him, and of his chauffeur, is that the stage was damp where he fell. The defendant does not seriously maintain that this particular question was not for the jury. The principal claim is that this dampness was not such a hidden danger as to render the defendant liable, and that the plaintiff was himself negligent in not observing the condition of the stage.
“The plaintiff was not an employee of the defendant. He was an independent contractor, an invitee, Miller & Rose et al. v. Industrial Commission of Wisconsin and Rich, 195 Wis. 468, 218 N. W. 716; Edwards v. Alhambra Theatre Company, 198 Wis. 228, 224 N. W. 104; and as such the defendant owed him the duty to have the stage on which he was to perform free from all hidden defects, which by the exercise of reasonable care could have been discovered and guarded against, Indermaur v. Dames, L. R. 1 C. P. 274; Mayhew v. Sullivan Mining Company, 76 Me. 100; Low v. Grand Trunk Raihvay Company, 72 Me. 313. It must be borne in mind that in speaking of hidden defects we use a relative term. What may be apparent in the daytime may become a pitfall in the darkness or when the light is dim; and, likewise, a condition obvious to one with an opportunity to investigate, may be a trap to kim who is precluded by the nature of his work from making a careful examination. Low v. Grand Trunk Railway Company, supra.
“The case before us is with respect to the defendant’s negligence not unlike Brown v. Rhoades, 126 Me. 186, 137 A. 58, in which the sufficiency of a declaration was challenged by a demurrer. The declaration alleged in substance that the defendant was the operator of an amusement parlor in which there was a steep chute extending from the ceiling to the floor. The plaintiff, a child, who was wearing rubber sneakers, in sliding down this chute attempted to check his speed by bracing his feet. The friction was so great that his momentum was suddenly stopped, and he was thrown and injured. The opinion of the court holds that on the admitted facts different inferences could be drawn as to the duty of the defendant to warn a child of tender years of such a danger, and that the issue should be submitted to a jury for determination. In other words, the risk may have been a hidden one to this child because of his immaturity; in the case before us the plaintiff claims that it was hidden from him because of the conditions under which he was forced to operate.
“Likewise the extent of the plaintiff’s obligation to exercise care for his own safety is measured by the particular circumstances connected with his work. In so far as lie himself had the opportunity to examine approaches, equipment, and the place where his act was to be carried on, he and not the management may be responsible for his failure to guard against a dangerous situation.
“In this case it seems to us that these issues were all for the jury. Was there in fact a damp spot on the floor? Was this the cause of the accident? Was it a risk which the plaintiff assumed as naturally incident to his work, or a condition for which the management was answerable ? Also the jury must decide the issue of his own due care. If his contention is correct that he fell on that part of the state known as the apron, which was concealed from him by the curtain as he prepared for his act, should he have taken precautions before making his slide to see that conditions were safe for him?
“It was the province of the jury to pass on the conflicting testimony in this case, and to draw inferences from such facts as should be proved or admitted. ’ ’ It is insisted that the factual situation in the Franklin case is identical with that presented here, but we fail to perceive any real similarity except as concerns the relationship of the parties to each other, the plaintiff there being a performer and the defendant a theatre owner. It will be noted that in that case there was no issue on the question of notice and the undisputed evidence showed that the defendant knew of the presence of water which had been spilled on the stage in a preceding act. In any event knowledge or notice of the presence of the water would necessarily be imputed to the defendant in that case because the uncontradicted evidence showed that it had been dropped on the stage during the course of an act performed 2% hours previously. There the court merely found inter alia that there was a conflict in the evidence as to the amount of water dropped on the stage, where it was dropped and whether sufficient time had elapsed for it to have evaporated, and reiterated the elementary rule that it was the province of the jury to pass upon those disputed questions of fact.

As already shown the only issue in the instant case is the question of notice to defendant of the presence of the ball on the stage and no issue of fact arises on that question since there is no evidence in the record that the defendant had any actual knowledge that the ball was on the stage prior to plaintiff’s claimed injury or that it was there for such a length of time that defendant could or should by the exercise of ordinary care have known of its presence. Neither were there any facts proved or admitted from which it could be fairly and reasonably inferred that defendant knew or should have known that there was a rubber ball on the stage. The burden was upon plaintiff to prove the notice and negligence alleged and he utterly failed to make such proof.

That the trial judge was confused as to the principles of law applicable to the issues presented is indicated by the following observations made by him in passing upon defendant’s motion for a finding in its favor at the close of plaintiff’s evidence: “I don’t think this is the class of case which would require notice. It is the class of cases where the defendant has to use ordinary care to keep the stage in a safe condition. Isn’t this a case of res ipsa loquiturf” If the court predicated its judgment upon the views thus expressed it would be clearly erroneous.

While it is true that plaintiff dismissed as to the second count of his complaint which contained the only specific charge as to the cause of his injuries, we think it appropriate nevertheless to call attention to same. That count which alleged specifically that plaintiff was injured by tripping over wires or cords connected with a light or lamp on the stage or in the wing thereof is significant only in that it sets forth the theory entertained by plaintiff and his counsel as to the cause of the accident at the time the complaint was filed.

In a case of this character it was as essential to prove actual or constructive notice to defendant of the alleged unsafe condition of the stage by reason of the presence of the rubber ball thereon as it was to prove plaintiff’s injury by reason of such purported unsafe condition. Since there is no evidence in this record that tends to show that defendant had knowledge or notice of the claimed unsafe condition of the stage, plaintiff failed to prove the negligence charged against defendant and the latter’s motion for a finding in its behalf should have been sustained.

The judgment of the circuit court is therefore reversed.

Judgment reversed.

Friend, P. J., and Scanlan, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Reconstruction Finance Corporation, Appellant, v. Albert Pines et al., Trading as J. Pines and Sons, Appellees.
    Gen. No. 39,824.

      Opinion filed May 3, 1938.
    Lee Walker, M. O. Hoel, Harold S. Walters and John H. Hardin, all of Chicago, for appellant.
    Benjamin B. Chodash, of Chicago, for appellees.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

This is an action brought by plaintiff, Reconstruction Finance Corporation, against Albert Pines, Eugene J. Pines and Samuel Pines, individually and as copartners doing business as J. Pines and Sons, for a balance of $1,100 due on a negotiable promissory note for $5,000 executed by defendants. Plaintiff, after its motion to strike defendants’ answer had been denied, filed a reply to said answer. The trial court sustained defendants’ motion to strike plaintiff’s complaint and reply and entered judgment against plaintiff for costs. This appeal followed.

Plaintiff’s verified complaint alleged the execution and delivery by defendants to the United American Trust & Savings Bank on May 23, 1932, of the note which is the subject matter of this action, the default of the defendants in the payment of same, the amount due on the note and that plaintiff is the legal holder thereof.

Defendants’ answer admitted the execution of the note and that plaintiff is the legal holder thereof, but denied their default in the payment of same and that anything was due plaintiff thereon. The answer then alleged that September 25, 1933, the business owned by the defendants under the partnership name, J. Pines and Sons, was incorporated under the same name, the corporation assuming all the assets and liabilities of the copartnership, including the indebtedness evidenced by the note in question; that the corporation continued to make payments on the note to the payee named therein, the United American Trust & Savings Bank, which accepted such payments; that plaintiff confessed judgment on the note against J. Pines and Sons, a corporation, in the circuit court of Cook county; that the corporation filed a petition for reorganization under section 77-B of the Bankruptcy Act, listing plaintiff as a creditor for $1,100, the amount for which it had confessed judgment on the note against the corporation; and that plaintiff filed its claim and acceptance of the offer of settlement made in the reorganization proceeding.

Plaintiff’s motion to strike defendants’ answer averred in substance that the answer did not allege that plaintiff agreed or consented to the assumption of payment of the note by the corporation and that it did not allege that plaintiff agreed to accept the liability of the corporation in lieu of that of the partnership, the original maker of the note; that neither by securing the judgment on the note against the corporation nor by filing a claim against it in the reorganization proceeding under section 77-B of the Bankruptcy Act did plaintiff waive or release the liability of the original signers of the note; that acceptance of payments on the note from the corporation by the United American Trust & Savings Bank did not release the original signers of the note, the answer having failed to allege that the bank agreed to release the liability of the defendants on said note; and that the answer was not sworn to as required by the statute.

After its motion to strike defendants’ answer had been overruled, plaintiff filed its reply thereto, which, after denying in effect that it filed its acceptance of the plan of settlement offered in the proceeding for the reorganization of the corporation under section 77-B of the Bankruptcy Act, and that neither it nor any previous holder of the note agreed to accept the liability of the corporation on the note in lieu of that of the copartnership, alleged that at no time during the period when payments were being made on said note did plaintiff or any prior holders thereof know of the formation of the corporation or of the assumption of the liability on the note by it.

In their motion to strike plaintiff’s complaint and reply and to dismiss this action defendants alleged that “said complaint and reply to the answer of the defendants fails to state a cause of action, in that the claim of the plaintiff, as alleged in the complaint and replication, indicates that there has been a waiver in election to proceed against J. Pines and Sons, a corporation, and further indicates that there has been a merger of any claim that plaintiff might have against defendants in the judgment previously entered against J. Pines and Sons, a corporation.” As heretofore stated this motion to strike plaintiff’s complaint and reply to defendants’ answer and to dismiss the cause was sustained.

Plaintiff contends that “the defendants — the partnership and its individual members — are not released from, their liability merely by virtue of the assumption of the debt by the corporation and the entry of judgment against it, but that to release the defendants there must have been an agreement entered into by plaintiff, the defendants, and the corporation releasing the defendants from liability and substituting the corporation as plaintiff’s debtor.”

The theory of the defendants as stated in their brief is that “by confessing judgment upon the promissory note against J. Pines and Sons ... a corporation, in a prior suit, as maker, the note was merged in the judgment and plaintiff elected and is now estopped from recovery upon the same note in the present action as against Albert Pines, Eugene J. Pines and Samuel Pines, individually and as copartners doing business as J. Pines and Sons, as makers.”

The principal contentions urged by defendants to sustain the judgment in the instant case were made and determined in Walker v. Wood, 170 Ill. 463. Plaintiff therein was a creditor of the defendant copartnership. The latter had conveyed its assets to a corporation which assumed the liabilities of the partnership. Plaintiff was informed by the corporation that it had assumed the partnership debts and had received payments from such corporation, which it applied on the obligation of the partnership to it. Thereafter the corporation became insolvent. Plaintiff filed its claim on the partnership debt with the receiver who had been appointed for the corporation, which claim was allowed and dividends paid thereon by said receiver. An action was then brought by the plaintiff against the members of the copartnership for the unpaid balance of its claim and it recovered judgment for same. In that case the court said at pp. 466, 467:

“The court sustained demurrers to the several amended pleas of the defendants, setting up the facts, hereinbefore stated, of the agreement by the corporation with the firm to pay the outstanding indebtedness, the notice to the plaintiffs of the assumption of such obligation, and the proof of the claim by plaintiffs against the corporation before the receiver, and the court also modified propositions of law submitted by the defendants that such facts released and discharged the defendants. By the modification the court held that such facts were all proper to be considered upon the question of fact whether the plaintiffs did release and discharge the defendants and accept the corporation as their debtor, but that they were not necessarily conclusive as a matter of law. We regard the modification as correct. The assumption of outstanding liabilities by the corporation was a matter of agreement between it and the defendants, which could not affect the rights of the plaintiffs unless they assented to it in some way which amounted to an agreement to accept the corporation as alone liable for the indebtedness. It is essential to a novation that all the parties to the contract for which the new one is substituted consent to it. (16 Am. & Eng. Ency. of Law, 867; Hayward v. Burke, 151 Ill. 121.) The assent or agreement may be either express or implied, but neither knowledge of the arrangement between the corporation and the firm, nor the partial payment of the debt, nor a demand for the payment, like the filing of the claim against the corporation, nor all combined, necessarily establishes such assent or agreement as a legal conclusion. (16 Am. & Eng. Ency. of Law, 904; Rayburn v. Day, 27 Ill. 46; Goodenow v. Jones, 75 id. 48; Hayward v. Burke, supra.) All the facts and circumstances of the case are proper to be submitted to the jury for the purpose of determining whether the creditor has impliedly assented to the discharge of the old firm. (Parsons on Partnership, 426.) This is what the court held by the propositions as modified.”

It clearly appears that plaintiff’s complaint, heretofore set forth, states a good cause of action. Did defendants’ answer present a good defense thereto and the specific nature of such defense as provided by section 40 of the Civil Practice Act (Ill. Rev. Stat. 1937, ch. 110, ¶ 164 [Jones Ill. Stats. Ann. 104.040]) ? The answer, after admitting the execution of the note by defendants and that plaintiff is the legal holder thereof, denied in general terms the default of defendants in payment of the note and that anything was due thereon. This denial of liability was merely a legal conclusion and insufficient as a statement of defense under subsec. 1, sec. 40 of the Civil Practice Act, which provides: “General issues shall not be employed and every answer and subsequent pleading shall contain an explicit admission or denial of each allegation of the pleading to which it relates.” The answer then proceeds to allege specifically the incorporation of the business theretofore conducted by the partnership, the assumption of the assets and liabilities of the partnership by the corporation, payments made on the note by the corporation to the payee named therein and the acceptance of same, confession of judgment by plaintiff against the corporation for the balance due on the note and the filing of plaintiff’s claim on its judgment in the proceeding for the reorganization of the corporation. Since there is no averment in the answer that plaintiff, defendants and the corporation agreed to the release of defendants’ liability on the note and the substitution of the corporation as plaintiff’s sole debtor, it must be assumed that the foregoing facts were set forth in defendants’ answer as tending to establish plaintiff’s implied assent or agreement to accept the liability of the corporation on the note in lieu of that of the partnership. As heretofore shown, the Supreme Court in considering an almost identical situation, under practically the same circumstances, in Walker v. Wood, supra, held “that such facts were all proper to be considered upon the question of fact whether the plaintiff did release and discharge the defendants and accept the corporation as their debtor, but that they were not necessarily conclusive as a matter of law.” Thus, the facts alleged in defendants’ answer in and of themselves do not bar plaintiff’s claim, but may only be considered on the question of fact whether by implied assent or agreement defendants were released and discharged by plaintiff from liability on the note involved herein. In our opinion plaintiff’s motion to strike defendants’ answer should have been sustained because of the insufficiency of such answer. The trial court having erred in failing to strike defendants’ answer was presented with another opportunity to rectify its mistake. Defendants’ motion to strike plaintiff’s reply should have been carried back to the first defective pleading, which was defendants ’ answer, and the latter should have been ordered stricken.

In their motion to strike plaintiff’s reply to their answer, as well as its complaint, defendants for the first time invoked the legal principles of merger and election of remedies, neither of which has any applicability to the issues presented by the facts in this case. It is urged that plaintiff is barred from recovery because its claim on the note was merged in the judgment by confession it procured on such note against the corporation and because it waived its claim against defendants, the original makers of the note, by electing to proceed against the corporation. We repeat that the doctrine of merger is inapplicable to the facts in this case. Of course, plaintiff’s claim against the corporation is merged in the judgment rendered against it. However, plaintiff’s claim on the note against defendants is distinct and separate from its claim against the corporation and is not in anywise affected by the judgment against the corporation, except as such judgment may be effective as evidence tending to show an implied agreement by plaintiff to accept the corporation as its debtor in lieu of the partnership. We deem it wholly unnecessary to either discuss at length or cite authorities to refute defendants’ proposition that plaintiff was compelled to an election of remedies and that having secured the judgment against the corporation it relinquished its right to proceed thereafter against the partnership and its members as the makers of the note. Defendants’ position in this regard is untenable. Unless by a novation plaintiff relinquished its claim against defendants by express or implied assent or agreement, it had the undoubted right under the law to proceed against the corporation by reason of the latter’s assumption of the partnership assets and liabilities, and then against the members of the copartnership on their liability as makers of the note until its claim was satisfied.

We have considered the other points urged but deem further discussion unnecessary in the view we take of this cause.

The order of the circuit court sustaining defendants ’ motion to strike plaintiff’s complaint and its reply to defendants’ answer and to dismiss this action was erroneously and improvidently entered. Plaintiff’s motion to strike defendants’ answer should have been sustained. Therefore the order sustaining defendants’ motion to strike plaintiff’s complaint and reply to defendants’ answer and to dismiss the proceeding is reversed and the cause is remanded with directions that defendants’ answer be stricken and that plaintiff be permitted to withdraw its reply thereto, that defendants be granted leave to file an amended answer, if they see fit to do so, and that such other proceedings be had as are not inconsistent with the views expressed herein.

Reversed and remanded with directions.

Friend, P. J., and Scanlan, J., concur.


author: Mr. Justice Huffman

text:
    Neva P. Fate, Appellant, v. Marian Louise Fate and Wilbur George Fate, Appellees.
    Gen. No. 9,269.
    Opinion filed April 28, 1938.
    Herget & Hoffman, of Peoria, for appellant; Roscos Herget, of counsel.
    Hugh E. Wilson, of Peoria, guardian ad litem for appellees Marian Louise Fate and Wilbur George Fate.
    Miller, Elliott & Westervelt, of Peoria, for appellees Mayme Fate, Grace Fate and Lena Fate.
   Mr. Justice Huffman

delivered the opinion of the court.

This suit arose from a proceeding brought by the trustees of a trust under the will of John B. Fate, deceased, asking among other things for a construction of the third paragraph of said will. The testator and appellant, prior to their marriage, entered into an antenuptial agreement wherein among other things it was provided that in case appellant survived the testator she should receive the sum of $50 per month during her lifetime. The antenuptial agreement was made in April, 1912. Subsequently the parties were married. In December, 1919, the testator executed his will, wherein by said paragraph three he provided as follows:

‘ ‘ During the life of my wife, the net income from my estate, except as otherwise herein disposed of, shall be distributed at least once in each calendar year as follows: My trustee shall pay to my wife the sum of Two Hundred Dollars ($200.00) a month, which shall include the Fifty Dollars a month agreed to be paid to her in prenuptial agreements heretofore executed by us. Out of the remainder of the net income, there shall then be paid to my nephew and nieces, namely, Mayme Fate, Lena Fate, C. Ivan Fate and Grace Fate, the sum of Fifty Dollars per month each, and, in case of the death of either of them leaving descendants, the descendants shall take of the income the share the parent would have taken if living.
" The balance of the net income shall be divided into two shares, one-half of which shall be paid to my wife and the remaining one-half to said nephew and nieces as above provided.”

The net income from the trust proved insufficient to pay the sum of $200 per month to appellant. However she was paid such income as was realized therefrom, which exceeded the sum of $50 per month. Ho distribution of any of the income was made to the other named annuitants. In 1936, the trustees under the will, filed their petition setting up among other things that the net income of the trust had been insufficient to pay to appellant the sum of $2,400 per year; that no distribution of income had been made to any of the other named annuitants; and that the income from the trust estate was now increasing so that it would exceed the sum of $2,400 per year. The petition then set up that appellant was claiming the arrearages in her payments were cumulative and a charge upon subsequent surplus income, and that she should be paid in full from such surplus income for all arrearages, before any distribution of income was due the other named annuitants.

The trustees asked that the court construe the provisions of the will with reference to the distribution of the net income as provided therein. The court construed the provisions of the third paragraph of the will to be, that it was not the intention of the testator to make any of the payments from the net income cumulative so that a deficiency occurring in any one year would be a charge against future surplus earnings. This finding was in no way effective against appellant as to the $50 monthly payments provided for in the antenuptial agreement.

The widow, Neva P. Fate, prosecutes this appeal from the decree of the court and urges for reversal that part of the decree which found.the arrearages upon her monthly or annual payments, not to be cumulative, and in finding that the only payment of money to her that was cumulative was the sum of $50 per month as provided for in the antenuptial agreement. She urges that under the rule as announced in Chicago Title & Trust Co. v. Morey, 281 Ill. App. 219, the trial court was in error in holding the arrearages not to be a charge upon subsequent surplus income.

Testamentary instruments providing for the periodical payment of money by trustees from a trust fund often present perplexing questions — questions whether such payments are payable out of the income solely, in complete exoneration of the corpus — whether arrearages are cumulative and payable out of subsequent surplus earnings — -and whether such payments are charges upon the corpus for any insufficiency from income to satisfy them in full. In the case of wills, the governing power is the intention of the testator. His is the property given. The beneficiaries are but the objects of his bounty and must submit to that which is provided for them. Therefore we need only concern ourselves with the intention of the testator as expressed directly or as made manifest from a consideration of the will itself. In this respect there are well fixed rules of construction which will be followed.

The term annuity is commonly used to denote the periodical payment of money to a certain person, irrespective of whether such payments are, in the legal sense, an annuity proper, a rent charge, or a gift out of the income of a trust fund. There is no contention here that the arrearages are a charge against the corpus of the trust. The question presented is, whether such arrearages are cumulative and payable from subsequent surplus income of the trust. In the determination of this question it is necessary to. take into consideration whether the payments provided for are a charge on income generally, and if the terms of the will permit of an accumulation of surplus income, or if the entire income is disposed of in such manner as to prevent the accumulation of surplus earnings. In this instance, the testator provided by the paragraph of his will in question, as follows: “During the life of my wife, the net income from my estate, except as otherwise herein disposed of, shall be distributed at least once in each calendar year as. follows.” (Here follows the provisions for annuities to the beneficiaries.) Next appears the following provision: “The balance of the net income shall be divided into two shares, one-half of which shall be paid to my wife and the remaining one-hal-fio said nephew and nieces as above provided. ’ ’ - "Prom the foregoing it is apparent that the annuities provided for are in fact but gifts out of the income of the trust fund, and it is equally apparent the testator did not intend that any surplus income should accumulate with which arrearages could be paid.

Where a will after providing for the payment of certain annuities from an income of a trust fund, expressly disposes of all surplus income, such a thing as undisposed surplus income is not possible. Hence the effect of such a provision in a testator’s will prevents any accumulation of surplus income from which arrearages can be paid. Under such circumstances, the testator’s intention that there shall be no such accumulation, is considered manifest. Here the testator, after providing for the payment of the annuities, expressly disposes of all surplus income. Therefore the rule urged by appellant is not applicable under the facts in this case.

Here the trustees have paid to appellant from the income of the trust, the sum of $2,400 per year, or so much thereof as the income amounted to. There has never been any disposition or payment from income to any of the other four named annuitants. The appellant contends there is a balance due her of $12,496.61 for arrearages and that she is entitled to have all income of the estate in excess of $2,400 a year applied upon the satisfaction of these arrearages before the other named beneficiaries shall be entitled to receive any payment under the will. The distinction in the rule applying to this nature of case and such as existed in the Chicago Title & Trust Co. v. Morey, supra, is, that in the one instance the gifts from income are charges generally against the income with the possibility under the terms of the will for surplus income from the trust to accumulate. Under such circumstances, arrearages will be made good from subsequent surplus income unless the testator clearly indicates to the contrary. In the instant case, however, the will by express terms prevents the accumulation of surplus income from which any arrearages can be paid.

Appellant relies upon the above case of Chicago Title & Trust Co. v. Morey, and appellees rely largely upon the Appeal of Brewster, 12 Atl. 470, decided in 1888. That case as well as many others, recognizes the rule to be that where a testator bequeaths gifts from income of a trust fund to named persons, and makes provision for the total distribution of all excess income over that provided for by the annuity provisions, no deficit could be made up from any surplus income in after years, because the specific directions of the will make such a thing as undisposed surplus income an impossibility, and therefore there could be nothing from which such arrearages could be paid.

A collection of cases from various jurisdictions, illustrative of the application of the rules of construction in cases such as the instant one, and such as existed in the Chicago Title & Trust Co. v. Morey, supra, will be found in L. R. A. 1917 E 580, et seq.

The decree of the trial court is affirmed.

Decree affirmed.


text:
    Peru Wheel Company, Appellant, v. Union Coal Company, Appellee.
    Gen. No. 9,272.

      Opinion filed April 28, 1938.
    Rehearing denied May 25, 1938.
    Burnett M. Chiperfield, Claude E. Chiperfield and Robert B. Chiperfield, all of Chicago, for appellant.

      Duncan & O’Conor, of Ottawa, and J. E. Malone, Jr., of La Salle, for appellee; A. J. O’Conor, J. E. Malone, Jr. and George L. Herbolsheimer, Jr., of counsel.
   Mr. Justice Huffman

delivered the opinion of the court.

This was a suit brought by appellant in March, 1937, to restrain appellee from a violation of the terms of a contract. Appellee filed its motion to dismiss the complaint on the grounds that the instrument was lacking in mutuality and terminable at the option of either party. The court sustained the motion. Appellant elected to abide its complaint. This appeal arises from the order of the court dismissing the complaint with judgment against plaintiff for costs.

Prior to February 15,1901, appellant company operated under the name of Peru Plow & Wheel Company, and appellee operated under the name of the LaSalle County Carbon Coal Company. It appears by the complaint that prior to the 1st day of October, 1900, the coal company was operating what is here called the Union Shaft. It had a tramway or elevated track running from this shaft to premises which it owned and where it was dumping the refuse from the above shaft. This tramway crossed a strip of land owned by the wheel company, which lay between the mine and the tract upon which the coal company was dumping the refuse. A dispute arose between the parties over the defendant’s use of the plaintiff’s land as aforesaid. ' The parties submitted their controversy to arbitration. It was stated in the articles of agreement with reference to the above submission that, “Whereas the first party (meaning the coal company) now occupies and desires to continue to occupy a right of way across the premises of the second party (meaning the wheel company), for bridge or tramway as hereinafter described, for the purpose of transporting rock, dirt, and other refuse from the Union Shaft now owned and operated by the said first party, to ground owned by first party on the south side of the right of way of the Chicago, B. & Q. R. R. Co., and the privilege and the use and enjoyment of said right of way by the first party and the free delivery of said screenings to the said second party is to be taken into consideration in the fixing of the price of said screenings delivered as aforesaid. ’ ’

It was further provided that the arbitrator should draft and submit to the parties a contract which in substance should contain a lease of the right of way over which the tramway was constructed, and the price that the wheel company should pay the coal company for coal screenings to be furnished it for manufacturing purposes, at such times and in such quantities as the wheel company might require. Pursuant to the foregoing, the arbitrator made his written findings and submitted to the parties the following written instrument in settlement of their disputes, which they duly executed under date of February 15, 1901, and which is as follows:

“This indenture, made and entered into by and between the Peru Plow & Wheel Company, of Peru, Illinois, party of the first part, and the LaSalle County Carbon Coal Company, of LaSalle, Ulinois, party of the second part, the contracting parties being corporations organized, existing and doing business under and by virtue of the laws of the State of Illinois;
“Witnesseth, That the said party of the first part in consideration of the covenants of the said party of the second part hereinafter set forth does by These Presents lease to the party of the second part the following described real estate for the purposes hereinafter described, to-wit: A right-of-way over and across that portion of the real estate now owned by the party of the first part now occupied by the bridge or tramway built, used and operated by the party of the second part for the purpose of hauling rock, slate, dirt and other refuse from the Union Shaft of the second party to the ground now owned by said second party and lying on the South side of the right-of-way of the Chicago, Burlington & Quincy Railroad Company.
“To have and to hold the same to the said party of the second part from and after the date of this indenture and so long as the said second party, its successors or assigns, shall continue in the operation of the said Union Shaft by the hoisting of coal thereat.
“And the said party of the second part, its successors and assigns, in consideration of the leasing of the premises as above set forth, covenant and agree with the party of the first part, its successors and assigns, that they will keep said bridge or tramway in good and safe condition and repair and maintain the same as to the width of its spans and its height above ground, the same substantially as it is at this date, and shall furnish and deliver to the said party of the first part, its successors and assigns, at any point along said tramway or bridge on the property of the said party of the first part, which said first party shall designate, screenings as the said party of the first part, its successors or assigns shall need the same in their manufacturing business conducted upon the real estate above described, the same to be furnished and delivered as aforesaid at the price hereinafter named and during such time as the said party of the second part, its successors or assigns, shall continue in the operation of the said Union Shaft by the hoisting of coal therefrom, and in such quantities as the said party of the first part, its successors or assigns, may require for the manufacturing business conducted on said property by said party of the first part, its successors or assigns; provided that in the event of a strike of the employees of the said party of the second part, its successors or assigns, the said party of the second part, its successors or assigns, shall be relieved from the obligations of this contract during the continuance of said strike.
“The said party of the first part, its successors and assigns, in consideration of the premises hereby agree to pay monthly in the usual and ordinary custom of business, to the said party of the second part, its successors and assigns, the sum of Fifty-Two Cents (52$) for each and every ton of two thousand pounds of screenings so delivered by the party of the second part, its successors or assigns, as hereinbefore set forth; and also to pay at the same rate for all screenings delivered to it by the said party of the second part since the first day of October, A. D. 1900.
“The party of the second part, its successors and assigns hereby covenant and agree, that at the expiration of this lease they will, within sixty (60) days thereafter, remove said tramway or bridge from the land of the first party or its successors or assigns.
“It is further mutually agreed by the parties hereto and their successors and assigns, that the party of the second part, its successors and assigns, shall have the right to go upon the land of the first party where said tramway or bridge is erected for the purpose of mailing all needful and reasonable repairs and improvements to the said tramway or bridge during the continuance of this lease.
“The covenants and agreements herein contained shall extend to and be binding upon the successors and assigns of the parties hereto.
“In witness whereof, the party of the first part has caused the hands of its President and Secretary, respectively, and the party of the second part has caused the hands of its Vice-President and Secretary, respectively, to be hereunto subscribed and their respective corporate seals to be hereunto affixed; and the said officers do hereby, each for himself, expressly certify that they have full right and lawful authority to execute and deliver this Indenture in duplicate. ’ ’

The parties continued to operate under the foregoing agreement from the making thereof until the present time. On or about June 16,1936, the defendant served notice upon the plaintiff of its intention to wreck and remove the tramway. The plaintiff replied thereto insisting that under the above contract the defendant had no right to wreck and remove the tramway. In answer to this contention on the part of the plaintiff, the defendant replied that it had made other arrangements for the disposition of the refuse from its mine and had no further use for the overhead tramway, stating that it would be unable to furnish any further coal to plaintiff after April 10, 1937. Following this, plaintiff brought its complaint to restrain the defendant from wrecking the tramway and to compel it to deliver to plaintiff such coal screenings as it might, desire for manufacturing purposes.

The only question presented by this appeal is the action of the trial court in granting the motion of the coal company to dismiss the complaint.

The manifold transactions of man are represented by contracts. They are in as varying form as language will permit and as the individual choice of the parties may be. For the foregoing reasons, it is frequently difficult to determine whether under the terms of a particular contract, both parties are bound. A contract in its nature and character and according to the intention of the parties, should involve and impose a reciprocity of obligation and duty. One of the essential equitable rules, to which, however, there are exceptions, is that a contract to be specifically enforceable must be mutually binding upon the parties. In other words, mutuality of remedy as well as mutuality of obligation, is often, though not always, essential. A court of equity as a general rule, will not enforce a specific performance of a contract by mandatory injunction, where the power rests in the plaintiff to nullify the relief granted. Witkowsky v. Affeld, 283 Ill. 557; Morris v. Curtin, 321 Ill. 462; Harris v. Nelson, 331 Ill. 225. It has been said: “Courts of equity never decree a specific performance of contract where the decree would be a vain or imperfect one.” Werden v. Graham, 107 Ill. 169, 179, 180. Where one of the contracting parties has the -right to terminate the contract, mutuality is generally lacking. Joliet Bottling Co. v. Joliet Citizens’ Brewing Co., 254 Ill. 215; Gage v. Village of Wilmette, 315 Ill. 328. Furthermore, the contract should be definite. Higbie v. Rust, 211 Ill. 333; Tryce v. Dittus, 199 Ill. 189; Barker v. Hauberg, 325 Ill. 538; Klein v. Hodgdon, 323 Ill. 440. As a general rule equity will not enforce a contract unless there is mutuality of remedy. Barker v. Hauberg, supra; Africani Home Purchase Loan Ass’n v. Carroll, 267 Ill. 380.

An injunction to prevent the breach of a contract is often the equivalent to a decree for its specific performanee. Dills v. Doebler, 62 Conn. 366, 26 Atl. 398, 20 L. R. A. 432; Muncie Natural Gas Co. v. Muncie, 160 Ind. 97, 60 L. R. A. 822; Joy v. St. Louis, 138 U. S. 1, 34 L. Ed. 843. In this respect it is stated in High on Injunctions, Vol. 2, sec. 1106 (4th ed., ch. 19, on injunctions with reference to contracts), as follows: “While the remedy for past violations of contract is to be sought only in courts of law, the protection of contract rights and the enforcement of specific covenants, are matters which are properly cognizable in courts of equity. The jurisdiction by way of interlocutory injunction to restrain the violation of contracts, is based upon the necessity of protecting the legal right, and is exercised for the prevention of all irreparable mischief. To warrant a court of equity in interfering, the contract itself must be free from doubt, and the injury apprehended from its violation must be of such a character as not to be susceptible of adequate compensation in damages at law. And a doubt as to the correctness of the construction of the contract on which the injunction is asked is sufficient ground for refusing to interfere.” It is further stated by the above authority (sec. 1109), “It has frequently been held that the contract concerning which the injunction is sought, must be of such a character as to be susceptible of specific enforcement by decree.” It has been held to be the rule in this State that a suit to enjoin the violation of a contract is governed by the same rules as a suit to enforce specific performance. Ulrey v. Keith, 237 Ill. 284, 290; Barker v. Hauberg, supra., p. 546; Wurn v. Berkson, 305 Ill. 231, 236. In this connection it was said in Dills v. Doebler, supra, “An injunction to prevent the breach of a contract is a negative specific performance of that contract; and the jurisdiction of equity to grant such an injunction is substantially coincident with its jurisdiction to compel a specific performance by an affirmative decree.”

The remedy by specific performance is not always and in all respects a matter of strict right. It is largely a matter of sound discretion and will be granted or denied as the justice and right of the particular case shall seem to the court to require. Baltimore & O. S. W. R. Co. v. Brubaker, 217 Ill. 462, 469; Sutton v. Miller, 219 Ill. 462, 464; Raginsky v. Lawler, 313 Ill. 441, 447; Africani Home Purchase Loan Ass’n v. Carroll, supra; Thackaberry v. Kibbe, 284 Ill. 199. In matters of this kind the doctrine of general rule is by no means inflexible, and each case presented must be viewed in its own light. The court has no arbitrary discretion to deny relief. Ullsperger v. Meyer, 217 Ill. 262; Anderson v. Anderson, 251 Ill. 415.

It appears here that the coal company was the possessor of a right to the continuing uso of a right of way over plaintiff’s land. It insists that it is not bound to continue in the enjoyment of such right for any definite period of time, and that although it might continue to avail itself of such right, yet it is no more bound to continue in the enjoyment thereof than is the plaintiff bound to purchase coal from the defendant. It is urged by appellee that the appellant seeks to obtain affirmative equitable relief under an instrument, which so far as the relief sought is concerned, it could nullify any decree in its favor, as it is not bound by the instrument to buy any coal from the defendant. Appellee urges that since appellant is not obligated to buy any coal, that it is therefore seeking a mandatory injunction to establish a right which it is in no way obligated to carry out.

An agreement to sell to another such of the seller’s goods, wares and merchandise as the other might from time to time desire to purchase, is lacking in mutuality because it does not bind the buyer to purchase any of the goods of the seller, as such matter is left wholly at the option or pleasure of the buyer. Willard Sutherland & Co. v. United States, 262 U. S. 489, 67 L. Ed. 1086; Atwater & Co. v. United States, 262 U. S. 495, 67 L. Ed. 1089; Cohen v. Clayton Coal Co., 86 Colo. 270, 281 Pac. 111, 74 A. L. R. 467; Schlegel Mfg. Co. v. Peter Cooper’s Glue Factory, 231 N. Y. 459, 132 N. E. 148, 24 A. L. R. 1348 (also annotations in 14 A. L. R. 1303, et seq.).

Under the circumstances, the chancellor was warranted in entering the order dismissing appellant’s complaint for want of equity, and the same is affirmed.

Order and judgment affirmed.


text:
    Dorothy Zuidema, Administratrix of the Estate of Michael Zuidema, Deceased, Appellee, v. Chicago and Northwestern Railway Company, Appellant.
    Gen. No. 9,284.
    Opinion filed April 28, 1938.
    Rehearing denied May 25, 1938.
    McCalmont, Ramsay & Bull, of Morrison, Nelson J. Wilcox, of Chicago, for appellant.
    Wood, McNeal & Gehlbach, of Moline, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

This is a suit by appellee for the alleged wrongful death of her husband. The complaint alleged due care on the part of plaintiff’s intestate and charged negligence on the part of appellant in that no warning by bell or whistle, or otherwise, was given by appellant’s agents, of the approach of the train. Appellant denied all charges of negligence on its part and alleged contributory negligence on the part of the deceased. The jury returned a verdict against appellant for the sum of $6,000. This appeal is prosecuted from the judgment of the court thereon.

The accident out of which this litigation grows occurred out in the country where a public road crosses appellant’s right of way. The road was a dirt road and ran in a north and south direction. Appellant’s tracks ran east and west. Plaintiff’s intestate was traveling-in his automobile upon this road, going north and thus approaching appellant’s tracks from the south. At this time one of appellant’s freight trains was approaching the crossing, going west. The engine and the automobile collided upon the crossing, killing plaintiff’s intestate.

The evidence shows that the accident happened at about three o’clock in the afternoon; that appellant’s train consisted of about seventy cars and was traveling- about 45 miles per hour. The only witness to the accident was the fireman on appellant’s train. He was sitting in the cab of the engine and on the south side thereof, from which direction the deceased was approaching. The road in question led from the deceased’s home, about three miles north of the crossing, south to a road known as the Lincoln Highway. The deceased was accustomed to using this road. As it approaches the tracks, both from the north and south, there is a rise in elevation, as the tracks of appellant at this place are several feet higher than the surrounding country.

The positive testimony of the engineer and fireman on appellant’s locomotive is, that the engineer started the automatic bell ringing device and started sounding the whistle at the whistling post about 800 feet east of the crossing, and that the bell was sounded continuously and the whistle blown constantly from that time until the accident. The fireman stated that he saw the deceased approaching the crossing from the south at a speed of about 20 to 25 miles per hour. He stated that the deceased did not check the speed of his car and drove the same upon the right of way and upon the track directly in front of the engine. He further states that he saw no other cars. The accident happened at a country crossing where the view was open and reasonably free from any obstructions. The evidence shows that from a point in the road 150 feet south of the track, the view is unobstructed for a distance of over 400 feet, and from a distance of 100 feet south of tbe track, the view is unobstructed for a distance of 488 feet, and from a distance of 75 feet south of the track, the view is unobstructed for a distance of 569 feet. These figures are with reference to the direction from which appellant’s train was approaching..

It has been stated by this court in Moore v. Illinois Power & Light Corp., 286 Ill. App. 445, that it is the duty of a person approaching a place of danger, to do so cautiously and with a proper degree of care for his own safety, having in mind the danger to which he knows he is exposed (p. 445 and cases cited); The above doctrine has been announced in Greenwald v. Baltimore & O. R. Co., 332 Ill. 627, 631, and in Provenzano v. Illinois C. R. Co., 357 Ill. 192, 196, as follows: ‘ ‘ The rule has long been settled in this State that it is the duty of persons about to cross a railroad track to look about them and see if there is danger, and not to go recklessly upon the track, but to take proper precaution to avoid accident. It is generally recognized that railroad crossings are dangerous places, and one crossing the same must approach the track with the amount of care commensurate with the known danger, and when a traveler on a public highway fails to use ordinary precaution while driving over a railroad crossing, the general knowledge and experience of mankind condemns such conduct as negligence.” The most recent pronouncement of this rule, of which we are aware, will be found in Grubb v. Illinois Terminal Co., 366 Ill. 330, 338.

After a careful review of the record, we do not find sufficient evidence going to establish negligence on the part of appellant railroad company. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Wolfe

text:
    City of Lake Forest, Appellant, v. Louis Janowitz and George Preston, Appellees.
    Gen. No. 9,280.

      Opinion filed April 28, 1938.
    Julius S. Neale, of Chicago, and Paul MacGuffin, of Libertyville, for appellant.
    Hall & Hulse, of Waukegan, for appellees; Harry A. Hall and Marshall Meyer, of Waukegan, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

The city of Lake Forest, Illinois, a municipal corporation, started suit against Louis Janowitz and George Preston in the circuit court of Lake county for damage it claimed it sustained when a city car collided with a car owned by Louis Janowitz and driven by his agent and servant, George Preston.

The complaint consists of one count. It alleges that on February 23, 1937, the plaintiff was the owner of an automobile which it was operating through its agents in a southerly direction on what is commonly known as Green Bay road, a public highway in the city of Lake Forest, Lake county, Illinois; that the defendant, Louis Janowitz, was the owner and in possession and control of a motor vehicle used by him in his business which was being operated in a northerly direction along said Green Bay road at and near 1466 North Green Bay road, by George Preston, his employee and servant; that the plaintiff, at all times in question, through its agent, was in the exercise of due care and caution for the safety of its own automobile and people rightfully present; that the defendant, Louis Janowitz, through his agent and servant, George Preston, caused his motor truck to strike, run into, and collide with the automobile of the plaintiff and damaged it.

The complaint then charges that the defendants did one or more of the following acts which caused the plaintiff’s damages: “(a) Carelessly and negligently operated their motor truck at the time and place in question, (b) Negligently failed to sound a horn or give any warning of the approach of the motor truck, (c) Negligently operated and drove the motor truck to the left-hand side of the center of said street in violation of the statute, (d) That while the plaintiff was then and there driving its automobile, through its agent and servant, at the time and place aforesaid, the defendant, through his agent and servant, having ample time and opportunity to bring his motor truck under control and to stop before running into the automobile of said plaintiff, said defendants did wantonly, wilfully and maliciously, and with conscious indifference to the property of the plaintiff and the safety of the plaintiff’s automobile, operated, managed and controlled their motor truck with great force and violence into, upon and collided with the automobile of the plaintiff and, as a direct and proximate result of said wanton, wilful and malicious misconduct of the defendants, the-automobile of the plaintiff was injured and damaged, together with other property of the plaintiff. ’ ’

The city asked damages in the amount of $2,000. The defendants, Louis Janowitz and George Preston, filed an answer denying all negligence and wilful and wanton misconduct on their part. They also filed a counterclaim alleging that their automobile was damaged. The court instructed the jury to find the city of Lake Forest not guilty under the counterclaim. As there is no appeal taken from this action of the trial court, a discussion of the counterclaim is unnecessary.

After the defendants had filed their answer to the original complaint and their counterclaim, the plaintiffs filed a reply and asked leave of court to amend their original complaint by inserting a claim for $48 which it claimed it was compelled to pay to the operators of the city car, under the Workmen’s Compensation Act. To this amendment, the defendants filed their answer denying the material allegations thereof. Evidence was heard and at the conclusion of the evidence the court, at the request of the defendants, instructed the jury to disregard the charge of the plaintiff that the defendants were guilty of wilful and wanton misconduct which caused the accident and damage in question. The case was submitted to the jury on the negligence counts, and they found the issues in favor of the defendants. Motion for a new trial and arrest of judgment were overruled. The court then entered judgment in favor of the defendants, and dismissed the suit at the plaintiff’s costs. It is from this judgment that the case is brought to this court for review.

The evidence discloses that on February 23, 1937, a police squad car of the city of Lake Forest was being driven by one of its policemen, Richard Baldwin, in a southerly direction on Green Bay road in the city of Lake Forest; that a grocery delivery truck belonging to the defendant Louis Janowitz and driven by his employee, George Preston, was being driven in a northerly direction on said road; that said road is 18 feet wide; that the two cars collided at, or near, a private driveway to the premises on the west side of the road; that a coal truck was being driven north and immediately in front of the defendant’s truck; that plaintiff’s squad car was being driven by the policeman and was chasing a speeder who was going south; that the defendant, Preston, turned his car to the left to enter the private drive on the left-hand side of the road; that he pulled out from back of the coal truck and as he was attempting to cross to the west side of the pavement, the police car struck his truck and the police car was badly damaged. There is evidence tending to show that the truck of the defendant was being driven at the rate of between 15 and 20 miles an hour, and that the police squad car was going at a speed estimated by different witnesses from 35 to 45 miles an hour.

The main contention of the appellant is that the court erred in withdrawing from the jury the question of wilful and wanton misconduct on the part of the defendants, and insist that the question was one of fact to be submitted to the jury under proper instruction. In the case of Bremer v. Lake Erie & W. R. Co., 318 Ill. 11, at page 20, our Supreme Court was discussing the question of wilful and wanton misconduct and they use this language; “If there is any evidence in the record fairly tending to show such a gross want of care as indicates a willful disregard of consequences or a willingness to inflict injury, then it is a question to be determined by the jury whether the negligent conduct of the defendant amounted to wantonness or willfulness. (Walldren Express Co. v. Krug, 291 Ill. 472.) What degree of negligence the law considers equivalent to a willful or wanton act is as hard to define as negligence itself, and in the nature of things is so dependent upon the particular circumstances of each case as not to be susceptible of general statement. The gross negligence which will justify the presumption of willfulness or wantonness is such as to imply a disregard of consequences or a willingness to inflict injury. (Lake Shore & Michigan Southern Railway Co. v. Bodemer, supra.) An intentional disregard of a known duty necessary to the safety of the person, and an entire absence of care for the life, the person or the property of others, such as exhibits a conscious indifference to consequences, makes a case of constructive or legal willfulness such as charges the person whose duty it was to exercise care with the consequences of a willful injury. ’ ’

After reviewing all the evidence in this case it is our conclusion that there was sufficient evidence tending to show wilful and wanton conduct on the part of the defendants, and that such question should have been submitted to the jury for their decision.

Instruction 18, given on behalf of the defendants, is relative to a larger number of witnesses testifying on one side, and this does not alone, determine that the preponderance of the evidence is on the side for which the larger number testified. Plaintiff insists that it was error in giving this instruction. We think that the instruction should have contained a statement that the number of witnesses is a proper element to be taken into consideration in deciding where the preponderance of the evidence lies.

Plaintiff’s refused Instruction No. 8 is as follows: “Any driver of a vehicle approaching an intersection with the intent to make a left turn shall do so with caution and with due regard for traffic approaching from the opposite direction and shall not make such left turn until he can do so with safety.” Plaintiff now insists that it was error for the court to refuse to give this instruction. It is not contended that there was an intersection where this accident took place, but a private drive. This instruction is not applicable to the facts in this case.

At the request of the defendant, the court gave the jury seven instructions, all relating to contributory negligence of the plaintiff. This is urged as error, not that the instructions are not in proper form, but by giving seven instructions on the same proposition of law too much emphasis is placed on one question of law and is misleading to the jury. It will be observed that the plaintiff claimed that the driver of defendant’s car was negligent and it was bis negligence that caused the injury in question, and the driver of the city’s car was not guilty of contributory negligence. An examination of these seven instructions discloses that they are similar in substance, and state the same rule of law in different language and by doing, undue emphasis is placed on the question of the contributory negligence of the plaintiff.

It is our conclusion that the trial court erred in taking from the jury the question of wilful and wanton conduct on the part of the defendants and by giving seven instructions relative to contributory negligence.

The judgment of the circuit court of Lake county is hereby reversed and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois ex rel. Grace R. Nicholson, Appellant, v. The Board of Trustees of the Police Pension Fund of the Village of Hinsdale et al., Appellees.
    Gen. No. 9,298.
    Opinion filed April 28, 1938.
    Rehearing denied May 25, 1938.
    James W. Breen, of Chicago, for appellant.
    Malcolm Mecartney, of Chicago, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

Grace R. Nicholson, the widow of John W. Nicholson, filed a petition in the circuit court of Du Page county for a writ of mandamus against the Board of Trustees of the Police Pension Fund of the Village of Hinsdale. The petition alleges that in 1892 John W. Nicholson, the husband of the plaintiff, joined the police force of the village of Hinsdale and remained a member thereof until May, 1908; that in May, 1909, the said John W. Nicholson again became a member of said police force and continuously remained a member thereof until January 5, 1926; that on said date he was acting as chief of police of the village of Hinsdale; that the said John W. Nicholson resigned from such police force on January 5, 1926; that on September 20, 1927, said Nicholson was appointed street commissioner by the president of the board of trustees of the village of Hinsdale.

The petition further alleges that by virtue of the provisions of the ordinances of the village of Hinsdale, in full force and effect at the time said Nicholson was appointed street commissioner, he was by said ordinances made a regular policeman and that as street commissioner, was authorized and directed by said ordinances to have, and to exercise within the village of Hinsdale, the powers of a regular policeman.

The petition further alleges that the ordinance passed by the village of Hinsdale establishing an executive department to be known as the department of police for the village of Hinsdale, provided that said police department shall consist of a chief of police and such other number of officers and policemen as the board of trustees shall from time to time prescribe. The petition contains copies of paragraphs of the ordinance pertinent to the issues involved in this ease. The petition also alleges that John W. Nicholson died on March 29, 1931, and all of the said ordinances were in full force and effect at that time.

The defendant filed its answer to the petition and sets forth copies of numerous other ordinances of the village of Hinsdale. It also avers that John W. Nicholson, in addition to being street commissioner for said Village, was also appointed sewer inspector, sealer of weights and measures, and health officer, and was acting in these capacities at the time of his death, March 29, 1931, and that for such services he was paid a salary of from $225 to $245 per month, but was paid nothing as a member of the regularly constituted police force of said Village. It denies that, under the ordinances of said Village, the street commissioner, by virtue of the provision of said ordinance, was a regular policeman of the Village, or that John W. Nicholson, after January 1, 1926, was ever a member of the regularly constituted police force of the village of Hinsdale, and denies that the petitioner is entitled to the relief as prayed for.

The village of Hinsdale alleges that the cause of action upon which this suit is predicated has been fully and finally adjudicated by courts of competent jurisdiction in a former proceeding and is, therefore, barred on the principles of res adjudicaba. The answer then sets forth the facts and circumstances of the former case in which the petitioner sued for a writ of mandamus to compel the village of Hinsdale to grant her a pension. That case was brought to this court on appeal and is reported in 281 Ill. App. 394.

To this answer, Grace R. Nicholson filed a reply which expressly denies that the rules of res adjudicaba are applicable, and also denies pertinent facts as set forth in the answer. The case was submitted to the court for a hearing, who found that the petitioner was not entitled to the relief prayed for and dismissed the suit. It is from this order that the appeal is prosecuted.

It is insisted by the appellant that at the time of his death, John W. Nicholson was a regular member of the police force of the village of Hinsdale and that under the statute of the State of Illinois his widow was entitled to a pension. She bases her right to the pension on the grounds that her husband was street commissioner of said Village at the time of his death and that the ordinances of said Village give such street commissioner police powers, and therefore he was a regular policeman of said Village. She bases her claim on the wording of the ordinance creating the police force of said Village and subsequent ordinances defining the powers of policemen, especially the language of the ordinance in which it says, “There is hereby established an executive department of the Village of Hinsdale which shall be known as the department of police, which shall consist of a chief of police and such number of other officers and policemen as the board of trustees shall, from time to time, prescribe. ’ ’ The appellant insists that the wording “other officers” means other officers of equal rank, as chief of police, and that the wording of this ordinance is broad enough to include the street commissioner of said city.

It is not disputed that John W. Nicholson, in his lifetime, had served in the police department for more than 25 years, prior to the time he resigned in 1926, or that he served as street commissioner for several years and was serving as such at the time of his death in 1931, or that he received a salary for street commissioner and the other positions he held, but did not receive any salary as a member of the police force. There is a question as to whether John W. Nicholson did perform any duties of a policeman after his resignation as chief of police.

We cannot agree with the theory of the appellant that the words “other officers” as used in this ordinance refer to officers other than policemen, but we think this language applies solely to other officers in the police force besides the chief of police. The'burden of proof is upon the petitioner to show that she has a right to this writ. It is our conclusion that the petitioner failed to show that her deceased husband, John W. Nicholson, was a regular member of the police force while he was serving as such street commissioner and that the trial court properly held that he had not been such member of the police force since January 5, 1926.

There is a further reason why this suit cannot be maintained. The answer of the village of Hinsdale alleges the defense of res adjudicaba, that is, that the same question was presented to the circuit court at a former hearing, in which Grace R. Nicholson filed a suit for a writ of mandamus against the Board of Trustees of the Police Pension Fund of the Village of Hinsdale to compel them to grant her a pension because her husband had been a member of the police force of the village of Hinsdale for more than 25 years prior to January 5, 1926. This suit was filed several months after the death of John W. Nicholson. The trial court in that suit found that John W. Nicholson had been a member of the police force for the statutory period and that the petitioner was entitled to a pension and ordered the said board of trustees to pay Mrs. Nicholson $800 annually. The case was appealed to this court and was reversed because the proof did not show that the village of Hinsdale in 1926 had a population of 5,000 or more. Therefore, the Police Pension Act was not applicable to the village of Hinsdale.

Both parties to this litigation have cited numerous cases, both for and against the proposition that the former suit settled the rights of the petitioner and the defendants and is a bar to this suit.

In the early case of Rogers v. Higgins, 57 Ill. 244, the Supreme Court, in discussing the rules applicable to such cases, uses this language, “A party cannot have a cause of action adjudicated upon piecemeal, in this way. When the complainant before presented his cause of action before the court, he should have brought forward and urged all the reasons which then existed, for the support of it. The controversy cannot be reopened to hear an additional reason, which before existed, and was within the knowledge of the party, in support of the same cause of action. No one should be twice vexed for the same cause of action. This principle of res adjudicaba, embraces not only what actually was determined in the former case, but also extends to any other matter properly involved, and which might have been raised and determined in it. The appellant has had his day in court as respects this cause of action, an alleged equity growing out of the execution of said contract and deed. That must suffice. He cannot be heard again in respect to that.”

A case frequently cited on this subject is Bacon v. Reichelt, 272 Ill. 90, in which it is said: “It was the duty of the appellant to set up in the proceeding his interest in the premises, and the decree in that case is conclusive upon him, not only as to the issues which were actually made and determined in the case, but also as to every matter which was properly involved and which might have been raised and determined. A prior adjudication between the same parties is conclusive upon them, not only as the matters actually determined, but as to every other thing within the knowledge of the parties which might have been set up in a ground for relief or defense.”

In the case of Schmidt v. Modern Woodmen of America, 261 Ill. App. 276, we find this language: “From the bill and answer in the case at bar, the decree in the Jenkins case and the opinion of the Supreme Court affirming the same, it clearly appears that one of the causes of action relied upon in the Jenkins case was the alleged invalidity of amended by-law 42. The cause of action set out in the present bill is the alleged invalidity of the same by-law. Appellees cannot make it a new or different cause of action by averring that the by-law is invalid and void for other known reasons which could have been but were not presented to the court in the Jenkins case. A single cause of action cannot be litigated piecemeal. When a cause of action has been finally adjudicated that ends the controversy.” Many other cases, both of our Appellate and Supreme Court, have followed these decisions.

We have examined the eases cited by the appellants, but find none that announce a different rule from the ones from which we have quoted. In the former case in which Mrs. Nicholson filed a petition for a writ of ■ mandamus, she asked that the Board of Trustees of the Village of Hinsdale be compelled to grant her a pension because her husband had been a member of the regular police force of the village of Hinsdale. This action was filed after the death of the husband. She had knowledge of all the facts that are presented in this petition at the time the former petition was filed. The parties to the suits are identical. The relief sought, and the subject matter, are based upon the same cause of action in each suit.

It is our conclusion that the plea of res adjudicata is sustained and is a bar to the present action.

The judgment of the circuit court of Du Page county in hereby affirmed.

Judgment affirmed.