author: Mr. Justice Newhall

text:
    C. E. Stead, Appellee, v. D. F. Craine et al., Appellants.

      Opinion filed February 12, 1930.
    June C. Smith, for appellants.
    Wham & Wham, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Marion county overruling appellants’ motion to open a judgment, entered by confession in open court, in favor of appellee against appellants D. F. Craine and John J. Parish, Jr.

On the first day of the January term, 1929, there was presented to the court for consideration a declaration, theretofore filed, alleging the execution of a lease by appellee as lessor and appellants Craine and Parish as lessees, whereby the lessor had leased certain premises to the lessees for a term of five years at a gross rental of $7,500, payable in monthly instalments of $125; that the lessees had authorized any attorney of any court of record to appear for them at any time after default of any payments of rent, as provided by said lease, to confess judgment without process in favor of lessor for any amount which might be due thereon, with costs, and to waive and release all errors and right of appeal. The declaration further alleged compliance by lessor with the terms of the lease and the failure of lessees to make payment of the monthly rentals for the months of February to July, inclusive, of the year 1928, and claimed damages by reason thereof in the amount of $750. With the declaration was filed a cognovit executed by one Kagy as attorney for lessees, waiving service of process, acknowledging the indebtedness as set forth in said declaration and confessing judgment therefor in favor of lessor. Judgment for $750 and costs of suit was rendered by the court in favor of appellee and against lessees; appellants herein. During the said January term of court appellants filed a written motion to open the judgment and for leave to plead to the merits of said cause.

The points raised by the motion are in substance as follows: first, the insufficiency of the warrant of attorney contained in the lease to authorize the entry of said judgment; second, the want of affidavit or evidence showing the amount due the lessor; third, the insufficiency of the declaration and proofs to warrant the court in entering the judgment by confession; and fourth, the existence of a claimed meritorious defense to the claim for rent contained in the declaration.

In support of the motion appellants filed an affidavit charging that there was no breach of the contract on the part of lessees, and a constructive eviction of appellants from the demised premises with a resulting damage to appellants in excess of the amount of the judgment.

The trial court denied the motion of appellants and this appeal is prosecuted seeking to reverse the order of the court.

Appellants’ first contention is that the power of attorney does not authorize the judgment entered by the trial court. The declaration alleged certain definite monthly instalments of rent aggregating $750 to be due under the lease. No other claim was made concerning any other defaults in the lease covenants. Affidavit was filed with the declaration showing due execution of the lease and power of attorney. The confession of judgment executed by defendants’ attorney admitted that the lessees were indebted to the lessor in the sum of $750 and that the lessor had sustained damages to the amount mentioned in the declaration on occasion of the nonperformance of the several promises and undertakings in said declaration mentioned.

It is urged that the cognovit is not by its terms directed to the rent due and, for aught that appears of record, the judgment entered may have been for other defaults in the covenants of the lease. The right to confess judgment under power of attorney in a lease for fixed accruing monthly rentals was passed upon by the Supreme Court in Fortune v. Bartolomei, 164 Ill. 51, and it was there held the same rule would apply as in the entering of judgment on a note authorizing confession of judgment; that when application is made for judgment in open court the lease would be examined, the credits deducted and a judgment entered for the balance due for fixed rents; and that the court was without power to enter judgment for defaults in leases where the damages were uncertain and unliquidated.

Appellants do not question but what a judgment may be entered, under a lease containing proper'power of attorney to confess judgment, but insist, because the record does not show any credits indorsed on the lease, that the court had no power to hear other evidence touching payments made by the lessees and the judgment, if authorized at all, should have been entered for the entire rent fixed by the lease. The averments of the declaration as to the specific months for which the rent was unpaid, together with the confession admitting the amount due as alleged in the declaration, with due proof of the execution of the lease, was sufficient to give the court jurisdiction of the parties and subject matter. Bush v. Hanson, 70 Ill. 480.

A warrant of attorney to confess judgment is a familiar common-law security, and the entry of judgment by cognovit thereunder is a proceeding according to the course of the common law, which courts have ever entertained, in the ordinary exercise of their authority as courts of general jurisdiction. The fact that the statute has regulated the mode of procedure, does not convert the proceeding into one of such special statutory character, that the same presumptions do not obtain as in the case of ordinary judgments of superior courts of general jurisdiction. In the absence of a bill of exceptions it will be presumed that the court heard sufficient evidence to justify the judgment that was entered where the court had jurisdiction of the parties and subject matter. Bush v. Hanson, supra. If the court erred in fixing the amount of the judgment, such error would not affect the jurisdiction of the court and was one that was released by the cognovit filed pursuant to the provisions of the power of attorney and cannot be urged on a motion to vacate. Hall v. Hamilton, 74 Ill. 437.

It was not claimed, in the motion to vacate or affidavits filed in support thereof, that the lessees had actually paid the accrued rent for the months specified in the declaration as being in default. The defense sought to be interposed was that there had been a constructive eviction by the landlord with resulting damages to the tenants, which the lessees desired to offset against the rent accruing according to the lease.

Appellants also contend that the court erred in refusing to open the judgment and permit them to make a defense to the claim for rent on the ground that appellee was guilty of a breach of the covenants of the lease. That the acts and conduct of the landlord constituted a constructive eviction of the tenants, for which the landlord should respond in damages and suffer the loss of his rent during such period of eviction.

The affidavit, filed on behalf of appellants, alleged in substance that the lease covered the second floor of the Stead building; that the lessees had also leased from other persons the first and second floor of the Agey building which adjoined the Stead building on the south; that at the time the lease in question was made the only means of ingress and egress was by way of an opening which had been cut through a party wall between the two buildings; that the cutting of said passageway and the installing of a motor for the operation of an elevator was done by appellee and constituted considerations for which appellants entered into said lease; that the passageway was used by appellants for about four and one-half years after the leasing, when, it is alleged, Stead had some difficulty with Agey and permitted Agey to close the passageway so that appellants in the use of the demised property had to use the windows on the west side of the building for taking furniture in and out; the demised .premises being then used for storage purposes in connection with appellants’ place of business in the Agey building, leased by Agey to appellants; that appellants continued to use the demised premises for about a month after the passageway was closed, but, on account of the inaccessibility and inconvenience of using the windows for ingress and egress, they abandoned the premises demised to them by appellee; that on account of the closing of the passageway they suffered damages of more than $1,000, which they offered to offset against the rent due for the time appellants occupied the demised premises.

Affidavits to vacate a judgment, entered by confession, which purport to set forth agreements not contained in the lease are insufficient, for such is merely an attempt to vary the terms of a written agreement by parole evidence. Stafford v. Ward, 204 Ill. App. 532; Western Hardware Mfg. Co. v. Chandler, 211 Ill. App. 513.

Unless the premises are rendered useless to the tenant by the positive act of the landlord, or unless the tenant has been deprived in whole or in part of the possession or enjoyment of his demised premises, actually or constructively, by the landlord, no defense exists to a right to recover rents because of eviction as none exists in law or fact. No positive act was proposed to be proven on the part of the landlord and where there is no duty not complied with and no wrong act committed by the landlord towards the tenants, no eviction occurs. Barrett v. Boddie, 158 Ill. 479. An eviction of a tenant by a wrongdoer or trespasser not acting under authority from the landlord does not affect the continuing liability of the tenant for rent. Blomberg v. Evans, 194 N. C. 113 (53 A. L. R. 686).

The facts averred in the affidavits did not show that the landlord, under the terms of the written lease, was under any legal duty or obligation to maintain a free passageway between the buildings in question and the alleged constructive eviction of appellants was chargeable to a stranger to the contract, for whose acts appellee was not responsible. There were further alleged facts in the affidavits, based on information and belief, to the effect that after appellants abandoned the premises appellee leased the same to other parties and collected rent therefor. A judgment by confession will not be opened merely for the purpose of allowing a defendant to maintain a cross-action. Koehler v. Glaum, 169 Ill. App. 537.

We are of the opinion that the trial court did not err in overruling appellants’ motion to vacate or open the judgment entered by confession. Accordingly the judgment order of the circuit court of Marion county is affirmed.

Judgment order affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Jackson Cook, Appellee, v. City of Du Quoin, Appellant.

      Opinion filed February 12, 1930.
    M. C. Cook and L. A. Crahstoh, for appellant.
    Max E. Hansoh and W. 0. Edwards, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

This is an appeal from a decree enjoining appellant from polluting a natural watercourse on appellee’s property and assessing damages in favor of appellee in the sum of $1,200.

The amended bill avers that appellee is the owner of a farm with improvements thereon used as a residence by appellee and his family; that appellant is a city of 10,000 inhabitants and had constructed a sewer system, the main outlet of which is into Eeese Creek on the outskirts of the city; that Reese Creek is a natural watercourse, flowing through appellee’s premises and at the time appellee acquired his farm, was suitable for watering stock; that as a result of the emptying of said sewage into Reese Creek, said watercourse has become contaminated and polluted so that it can be no longer used by appellee; that noxious odors are continually emitted from said stream which flows within a few yards of appellee’s dwelling and as a result appellee has been deprived of the comforts and enjoyment of his home; that his health and that of his family are greatly endangered and as a result of such condition, which had existed for more than five years prior to the filing of the bill, appellee has suffered damages.

The bill charged the Du Quoin Packing Company, a defendant in the court below, with contributing to the contamination of said stream, but the jury and the court found the Packing Company not guilty of such nuisance.

The answer of appellant denied the material allegations of the bill and alleged that if the water in the creek had become polluted, as charged in the said bill, the same was occasioned by other towns and villages in discharging sewage into said creek.

At the request of the defendants the court impaneled a jury to determine the facts. The jury returned a verdict finding appellant guilty of creating and maintaining a continuing nuisance as charged in the bill and assessed appellee’s damages at $1,750, and finding the Du Quoin Packing Company not guilty.

The evidence shows that appellee moved upon the premises in question about the year 1920 and occupied the same with his family as a home; that the creek is about 40 yards from his house and three miles upstream was located the packing plant of the Du Quoin Packing Company; that the City of Du Quoin has about 10,000 inhabitants and some time prior to 1920 had constructed a sewer system, with a septic tank located above the packing plant and discharged the sewage through a tile sewer into a ditch leading to Reese Creek.

For some years after appellee moved onto his premises he used the water in the creek for watering stock, but for five years prior to the filing of the bill he had been unable to use it for that purpose; that by reason of the stream being used for a sewage outlet, the stream had become contaminated and noxious odors arose therefrom, particularly in the summertime. At times the family had to leave the home, being- unable to sleep, and the odors were such as to render the members of the family sick; that the water in the stream was filled with sediment, sewage, and other deleterious elements which killed the fish in the stream and rendered the water unfit for farm uses.

Seventeen persons, who lived in the immediate neighborhood of the creek in question, were called as witnesses and substantiated the allegations of appellee’s bill.

From a review of the evidence in the record we are of the opinion that the chancellor was amply justified in reaching the conclusion that appellant was guilty of creating and maintaining a nuisance by the pollution of the natural stream which flowed across appellee’s farm, and that the law and evidence justified the court in directing appellant to abate the nuisance.

It is the right of every owner of land over which a. stream of water flows, to have it flow in its natural state and with its quality unaffected. It is a part of the freehold, of which the owner cannot be disseized except by due process of law, and the pollution of a stream constitutes the taking of property, which may not be done without compensation. City of Kewanee v. Otley, 204 Ill. 402.

Appellant did not attempt to offer any evidence which would refute that of appellee, but the only offered proof on behalf of appellant, refused to be heard by the chancellor, was that other sources than that chargeable to appellant may have been responsible for contributing to the pollution of Reese Creek, a natural watercourse. Though other wrongful acts than that of the defendant city may have been responsible for the collection of this objectionable sewage, such fact furnishes no defense to the defendant city, if it in fact contributed to the nuisance complained of and participated in the pollution of the water that caused injury to appellee. City of Kewanee v. Otley, supra.

Where the acts of several persons, although separate and distinct as to time and place, culminate in producing a public nuisance, which injures the person or property of another, they are jointly and severally liable. 20 R. C. L. 397; Fox v. City of Joliet, 150 Ill. App. 491.

At the request of appellant the court impaneled a jury to try the issues as to the existence of the nuisance charged in the bill and for the purpose of determining appellee’s damages, if any, resulting from such nuisance. The jury heard the evidence and returned a verdict finding that appellant was guilty of the nuisance charged in the bill and found appellee’s damages to be the sum of $1,750. The jury further found the Du Quoin Packing Company not guilty. The court in its decree found that the verdict of the jury was supported by the evidence on the question of appellant’s creating and maintaining a nuisance, but found that appellee’s damages resulting from such nuisance were only $1,200. The decree directed that defendant city abate the nuisance within one year from the date of the decree.

Appellant urges that the jury were not properly instructed by the court and that the damages are excessive.

The verdict of a jury in a chancery case, where the issue is not required by the statute to be submitted to a jury, is merely advisory, and it is discretionary with the chancellor to accept or reject the verdict, as he believes, justice requires. Biggerstaff v. Biggerstaff, 180 Ill. 407. The court did not enter a pro forma decree based upon the verdict of the jury, but, instead, made its own independent findings and disregarded the verdict as to the damages found. Accordingly no special importance is to be given to the instructions or the finding of the jury. The only question for review is whether the evidence supports the decree and did the court reject competent evidence. Titcomb v. Vantyle, 84 Ill. 371; Guild v. Hull, 127 Ill. 523.

The bill charges that the acts of appellant in polluting the creek in question occasioned noxious and offensive odors which rendered appellee’s home unfit to occupy for himself and family, dangerous to their health, as well as occasioning great physical discomfort ; that appellee was unable to use his land for pasturage and farming purposes and that he had been unlawfully deprived of the comfort and enjoyment of said premises. The undisputed proof shows that, during the period of five years prior to filing the bill, appellant was guilty of maintaining a continuing nuisance by the polluting of said stream; that appellee suffered the constant annoyances and injuries charged in said bill to have been occasioned to his property and family; that during such period the physical discomforts to himself and family constantly increased by reason of the continued unlawful acts of appellant. No claim was made in the bill, or proofs, as to permanent damage to appellee’s real estate and the jury were instructed that the measure of damages was compensation for physical discomfort and deprivation of the comfortable enjoyment of a home, and it is clearly evident that the chancellor allowed compensation to appellee based upon this theory.

Where the injury is physical discomfort and results in deprivation of the comfortable enjoyment of a home, the measure of damages is not the depreciation in the rental value of the premises but compensation for such physical discomfort and deprivation of the use and comforts of home and is to be determined by the sound judgment, experience and discretion of the court or jury that may be called to determine such question in view of the facts in each particular case. Baltimore & P. R. Co. v. Fifth Baptist Church, 108 U. S. 318; Gempp v. Bassham, 60 Ill. App. 84; Illinois Cent. R. Co. v. Grabill, 50 Ill. 241; Fairbank Co. v. Nicolai, 167 Ill. 242.

Appellant further contends that appellee would not be entitled to recover for consequential damages resulting from a public sewer where the evidence fails to show that the same was not carefully constructed or prudently operated. The mere fact that such sewer, with its septic tank and outlet, was built in the usual and customary manner, does not relieve appellant of its legal duty to prevent injury to appellee’s property resulting from the pollution of said natural watercourse by reason of the same being used as a means for disposal of sewage controlled by appellant. Such sewage disposal methods adopted by appellant were unlawful and it was the city’s duty to have abated them. City of Kewanee v. Otley, supra.

After careful review of the record we are of the opinion that the decree of the court below is supported by the evidence and that the court did not err in its rulings, and that said decree should be affirmed.

Affirmed.


text:
    Tibbitts-Hewitt Grocery Company, Appellant, v. Sam Cohen, Trading as White House Market and G. T. Chappee, Appellees.
    Opinion filed February 12, 1930.
    Egbert F.. White and John V. Lee, for appellant.
    Griffiths & Lueders, for certain appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

This was an action of attachment in aid of assumpsit instituted by appellant against Sam Cohen, in which a stock of groceries and fixtures of a retail grocery were attached while in the possession of appellee Gr. T. Chappee, who was made a party defendant in the court below and filed an intervening petition claiming title and right to the possession of all of the goods attached.

On the trial of the case before the court, without a jury, judgment was rendered in favor of appellees, dissolving the attachment and directing the return of the goods attached to appellee Gr. T. Chappee.

Appellant brings what purports to be a record of the case in the trial court for review and contends in its brief that the trial court erred in entering final judgment.

No assignment of errors has been written upon, or attached to the record, las required by the rules of this court. No errors having been assigned on the record, there is and can be no joinder in error and therefore, no issue for this court to try. Paul v. National Accident Society, 249 Ill. App. 302, 303. In the transcript of record filed in this court there appears what purports to be an assignment of errors that was filed in the circuit court of Madison county.

The record filed in this case purports to be a transcript of pleas and proceedings had before the Honorable Henry Gr. Miller, presiding judge of the circuit court of Madison county and the clerk has certified that the record contains a copy of the bill of exceptions and all papers filed and proceedings had in said cause. From an examination of the record it does not appear that there ever was any bill of exceptions signed or certified to by the trial judge and filed with the clerk of the circuit court. This court has no power to review anything contained in a purported bill of exceptions which has not been signed or certified to by the trial judge and where such appears it is the practice of this court to dismiss the appeal. Songer v. Pfeiffer, 199 Ill. App. 190. The only way in which such evidence can be preserved for the consideration of a reviewing court is by bill of exceptions, and in the absence of a proper bill of exceptions this court will not review the evidence on appeal, in an action at law, and will presume that the evidence supports the judgment of the trial court. Where a party litigant desires to preserve anything for review, outside of the common-law record, it must be contained in a proper bill of exceptions. In re Estate of Janett, 199 Ill. App. 13.

From an examination of the judgment order entered by the trial court on May 28, 1929, it appears that the court, after rendering judgment, allowed appeal upon the plaintiff in the court below giving bond, and bill of exceptions was to be filed within 60 days, but nowhere in the record does it appear that there was even a purported bill of exceptions signed or certified by the trial judge and filed with the clerk. In the record there appears to be a transcript of the testimony and the exhibits filed with the clerk of the court below on the 26th of September, 1929, but this testimony, and exhibits, do not purport to be a part of any bill of exceptions that was certified to by the trial judge.

In view of this state of the record the appeal will be dismissed at appellant’s costs.

Appeal dismissed.


text:
    Florence Layton, Appellee, v. Adam Ogonoski, Appellant.

      Opinion filed February 12, 1930.
    Wheeler & Oehmke, for appellant; Wm. C. Dun-ham, of counsel.
    Pope & Driemeyer, for appellee.
   Mr. Justice Newhall

delivered the opinion of the court.

This is an appeal from a judgment rendered against appellant in the city court of Bast St. Louis for personal injuries sustained by appellee in a collision between a car in which appellee was riding and an automobile driven by the appellant’s son.

The collision occurred at the intersection of Missouri Avenue and Eighth Street in the business portion of Bast St. Louis. Missouri Avenue extends, east and west and is about 39 feet wide, and Eighth and Ninth Streets intersect Missouri Avenue, Eighth Street being about 30 feet wide. The Ford coupe in which appellee was riding, being operated by one George Garrison, was driven north on Ninth Street to Missouri Avenue and then west towards Eighth Street. Appellant’s car was driven by his son, east on Missouri Avenue towards Eighth Street. It was a large seven passenger Dorris sedan, weighing about 4,000 pounds. The accident occurred about five o’clock in the afternoon on April 1, 1929.

Testimony on the part af appellee tended to show that the car in which she was riding was driven northerly on Ninth Street to Missouri Avenue, where it made a boulevard stop, and then traveled west one block to a point about two-thirds across Eighth Street where it collided with the car of appellant while the latter was attempting to turn north on Eighth Street. The cars were jammed together and stopped at the northwesterly corner of the intersection; the car in which appellee was riding which was being driven at a rate of 12 to 15 miles an hour, slowed down when it reached Eighth Street, and when the traffic permitted, Garrison, who was driving the car, started across Eighth Street. Appellant’s car was being driven easterly on the south side of Missouri Avenue, and, when near Eighth Street, the driver attempted to turn north while driving at a fast rate of speed. Without giving any signal appellant’s car turned diagonally across Missouri Avenue and collided with the car in which appellee was riding. Appellee testified she was almost across Eighth Street when she noticed appellant’s car swerve into the car in which she was riding; that the driver of appellant’s car gave no signal and the only thing she saw the driver do was to throw up his hands the minute the impact occurred; that the car in which she was riding was on the right-hand side of the street; that when the cars collided appellee was thrown forward against - the dashboard, severely injuring her knees. Garrison, the driver of the car, corroborated appellee’s version of the accident; further testified that the driver of appellant’s car did not sound his horn or give any signal indicating that he was about to turn north; that the traffic was heavy and as he approached Eighth Street, was watching his opportunity to go across the street and noticed appellant’s car coming east, west of Eighth Street, on the opposite side of the street. The witness, Henneberry, a pedestrian who was on the south side of Missouri Avenue at Eighth Street, substantially corroborated appellee’s version of the accident.

The driver of appellant’s car stated that as he approached Eighth Street he was going 10 or 12 miles an hour, and when near the intersection he looked towards Tenth Street to see if any cars were coining, and signalled that he was going to turn north; that as he approached closer to the intersection he was traveling five miles an hour, looking towards Tenth Street, and, not seeing any car approaching, gave a signal to turn north. As he gave the signal he looked back to see what was coming in the rear and when he immediately looked back to the east he saw a Ford car coming towards him; that he immediately stopped and the Ford ran into him while he was making the turn on the north side of Missouri Avenue; that he first, saw Garrison’s car when it was five or six feet away from him. The witness Schaefer corroborated appellant’s driver as to his version of the accident and testified that appellant’s driver was traveling three or four miles an hour at the time he made the turn; that appellant’s driver did give a signal with his left hand, and the car was traveling three or four miles per hour at the time it collided with the Ford.

The declaration consisted of three counts and the jury found appellant guilty under the first and-third counts of the declaration. The first count charged general negligence and the third count that the injury was wilfully and wantonly inflicted. The jury returned a verdict in favor of appellee in the sum of $3,000, and motion for new trial was made and overruled.

Appellant contends that the trial court erred in refusing to direct a verdict upon the ground that there was a variance between the allegations of the declaration and the proof in the case. The first count of the declaration charges that appellant’s car ran upon and struck the automobile in which appellee was riding. The third count charges that appellant’s car collided with the car in which appellee was riding. Appellant contends that the evidence shows that the Ford car ran into and struck appellant’s car and that under the authority of the case of Buckley v. Mandel Bros., 333 Ill. 368, there is such a fatal variance that the case should be reversed. In the Buckley case the proof showed that the cars which collided in that case were moving in the same general direction. In the case at bar the proof shows that the two cars were moving towards each other just prior to the collision, and the evidence was conflicting as to whether or not appellant’s car was moving at the time of the impact. In view of this conflicting evidence we hold it was a question of fact for the jury to determine and that the trial court did not err in refusing to direct a verdict on the ground of variance.

Appellant’s next contention is that the trial court erred in refusing to direct a verdict on the third count of the declaration upon the ground that the general verdict on the first count of the declaration, charging negligence, and the third count, charging wilfulness, was bad, in that a general verdict could not be based on these two counts. Appellant’s counsel argue that appellee’s injuries could not have been caused negligently and wilfully at the same time and that a general verdiqt based upon separate counts, one charging negligence and one charging wilful and wanton negligence cannot stand. We do not think there is any merit in counsels’ contention. The verdict in this case found the defendant guilty under the first and third counts of the declaration. In Eldorado Coal & Coke Co. v. Swan, 227 Ill. 586, it was held that a separate finding of guilty on each count of the declaration in a personal injury case has no other effect than a general verdict finding the defendant guilty as charged in the declaration and that it is not necessary, in order to sustain the judgment, that all counts be sustained, and that one good count sustained by the evidence is sufficient.

In tort the plaintiff may prove a part of his charge if the averment is divisible, and proof of a part of the allegations, if sufficient to establish a case, will sustain a judgment. Guianios v. DeCamp Coal Min. Co., 242 Ill. 278. In the foregoing case it was held that where the proof shows that the act was caused by the negligence of a defendant that a recovery could be sustained under a declaration charging wilful negligence, even though the negligence proved was not wanton or wilful.

If issues are made upon all the counts in a suit against a defendant, including one of which malice is the gist, a judgment upon a general verdict is responsive to such issue and prima facie establishes that malice was the gist of the action, and the burden is upon the defendant to show the contrary. Jernberg v. Mix, 199 Ill. 254; Gannon v. Kiel, 251 Ill. App. 389. It is the practice in this State to try personal injury cases under declarations, the separate counts of which charge negligence and wilful and wanton misconduct (Chicago Terminal Transfer R. Co. v. Gruss, 200 Ill. 195) and although the rules of law as applied to the separate counts of such a declaration are not the same, it has never been thought for that reason such counts could not be joined in the same declaration. Marquette Coal Co. v. Dielie, 208 Ill. 116.

Appellant further contends that the evidence does not sustain the charge of wilfulness in the declaration and that the trial court should have directed a verdict under the third or wilful count of the declaration.

Whether the negligent conduct of a defendant which has resulted in injury to another amounted to wantonness is a question of fact to be determined by the jury, if there is any evidence in the record fairly tending to show such a gross want of care as indicates a wilful disregard of consequences or a willingness to inflict injury. An intentional disregard of a known duty necessary to the safety of the person or property of another, and an entire absence of care for the life, person or property of others such as exhibits a conscious indifference to consequences, makes a case of constructive or legal wilfulness such as charges the person whose duty it was to exercise care with the consequences of a wilful injury. Walldren Express & Van Co. v. Krug, 291 Ill. 472. There was evidence from which the jury might have found that the driver of appellant’s car suddenly turned north at Eighth Street, in front of the car in which appellee was riding, without warning or signal indicating his intention to turn, when it was apparent that such a heedless and reckless act would be liable to lead to serious injury to life and property. Appellant’s driver testified that before making the turn he looked and did not see the oncoming car in which appellee was riding. In view of the undisputed fact that the car in which appellee was riding had either arrived at Eighth Street or had proceeded across, when appellant’s driver undertook to cut the corner, the jury might reasonably infer that appellant’s driver was not looking or giving proper attention to traffic coming from the east.

It is peculiarly the province of the jury to determine under all of the circumstances whether appellant’s driver was guilty of such a degree of negligence as could be said to be wilful or wanton. Failure to discover danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care, may ofttimes be considered wilful or wanton negligence. Gannon v. Kiel, 252 Ill. App. 550. The evidence shows that Missouri Avenue and Eighth Street is a very busy street intersection in the heart of the business section of East St. Louis, and for one to drive a large, powerful automobile weighing two tons on any public highway where there is congestion and traffic, especially at street intersections, without being alert and giving attention to other vehicles, is negligence of such a gross degree as to give rise to the inference of at least constructive wilful and wanton negligence. The general use by the public of a highway so as to create a probability of the presence of people and vehicles requires the exercise of a higher degree of care in approaching such place than is required at places less frequently traveled (Heidenreich v. Bremner, 260 Ill. 439) and might make an act which would otherwise be merely negligence so reckless as to indicate a disregard for life or a general disposition to do injury. Neice v. Chicago & Alton R. Co., 254 Ill. 595.

In Mantonya v. Wilbur Lumber Co., 251 Ill. App. 364, it was held that it was a proper question for a jury to say whether or not a truck driver was guilty of wilful and wanton misconduct in driving on to a State paved highway directly in the path of an approaching car, which by statute had the right of way.

It is also contended by counsel for appellant that the appellee was bound to prove affirmatively that she was in the exercise of due care for her own safety. If, as we hold, appellant was guilty of wilful or wanton negligence, then appellee is not precluded from recovering damages by reason of her contributory negligence.

The proof tends to show that the driver of the car in which appellee was riding, was exercising due care at and prior to the accident, and it is contended by counsel for appellant that it was the duty of appellee to be on the alert and warn the driver of the car of the position of appellant’s car when it was proceeding to make its turn northward. The evidence does not disclose that she had any opportunity to warn the driver of this situation, or that it was practical for her to do anything which would probably avoid the collision. The care or want of care on the part of appellee was for the jury to determine under all of the surrounding conditions that existed at and prior to the injury and we cannot say, even though it were necessary to determine that question, that appellee was guilty of contributory negligence.

Appellant’s final contention is that the verdict is excessive. The proof on the part of appellee tends to show that the knees and limbs of appellee were lacerated and quite severely injured and, at the time of the trial about two months after the accident, appellee had not fully recovered from such injuries. There was no proof to show that there were any injuries that were permanent and after due consideration of all of the evidence in the record we are of the opinion that the appellee should be required to file a remittitur in the sum of $1,000 within 30 days, and that in default of so doing the cause should be reversed and remanded for a new trial; that in the event of appellee’s filing remittitur within 30 days in the sum of $1,000 the said judgment be affirmed in the amount of $2,000, one-third of the costs in this court to be assessed against appellee, with remaining two-thirds assessed against appellant.

Affirmed on condition that appellee file remittitur of $1,000.


text:
    St. Clair National Bank of Belleville, Administrator of the Estate of John Kuehn, Deceased, Appellant, v. Harley E. Monaghan, Appellee.
    Opinion filed February 12, 1930.
    Rehearing denied March 17, 1930.

      F. J. Tecklenburg, for appellant.
    John W. Freels, for appellee; Ropiequet & Freels, of counsel.
   Mr. Justice Newhall

delivered the opinion of the court.

This is an appeal from a judgment entered on a directed verdict in favor of appellee made at the close of appellant’s evidence in the trial court.

• The declaration charged that appellee carelessly and negligently drove an automobile against another automobile, in which appellant’s intestate was riding, and that as a result of such collision appellant’s intestate was killed, leaving next of kin who suffered loss by reason of the death of the deceased.

Testimony on the part of appellant tended to show that, the deceased, John Kuehn, and one Henry Deppe and William Corpstein were serving on a jury in the city court of Bast St. Louis and had been excused from service in the forenoon, and were proceeding to their respective homes when Deppe asked them to ride with him in his automobile to Belleville. Deppe was driving a Nash touring car and.pursuant to his invitation Corpstein was riding on the front seat on the right-hand side of Deppe, the driver, and Kuehn, the deceased, was in the rear seat of the car. The evidence shows that there were isinglass curtains fastened into the rear doors of the car by means of an iron rod and that these curtains extended from the rear seat to the front seat. The accident in question happened at the intersection of 15th Street, a north and south street, and St. Louis Avenue, an east and west street being about 48 feet between curbs.

St. Louis Avenue was protected by boulevard stop signs and as Deppe, the driver of the car, proceeded north on 15th Street he stopped his car about 10 feet from St. Louis Avenue and looked to the left and right for vehicles that might be approaching on St. Louis Avenue, and at that time no vehicles were in sight. The driver of the car then proceeded northward across St. Louis Avenue and when his car had traveled to near the center of the street he observed appellee’s car, a Ford sedan, about 15 or 20 feet away, approaching Deppe’s ear, along the center of St. Louis Avenue, at a speed of about 40 miles an hour. Deppe testified that the front of appellee’s car struck the left rear side of his car while the same was at about the center of the street intersection.

The testimony of the witness Corpstein was corroborative of that of the driver of the car. There was no testimony that Kuehn, who occupied the rear seat, looked either to the right or left at the time when Deppe’s automobile entered upon the crossing, or that he said or did anything, prior to the time the Deppe car was struck, to warn the driver. The testimony, tends to show that Deppe’s car was turned around by the impact and that the rear of the car, when it came to a stop, was within a few feet of the northeast curb. The rear curtains on Deppe’s car were in good condition prior to the accident, and immediately thereafter the right-hand curtain was torn and the rod holding the curtain was bent, evidently by the force of the collision which threw Kuehn’s body through the curtains of the automobile onto the pavement. Immediately after the accident Kuehn was found, unconscious, on the pavement near the curb. He was bleeding from a wound in the head, suffered a fracture of the skull, and died about an hour thereafter.

At the close of appellant’s evidence motion for a directed verdict was made on the part of appellee, which motion was granted by the trial court and error is assigned upon this ruling.

On a motion to direct a verdict only that evidence can be considered which is in favor of the party against whom the motion is directed, and that evidence must be considered in the light most favorable to that party, together with all legitimate inferences which may be drawn from it in his favor. Shannon v. Nightingale, 321 Ill. 168. The question of due care on the part of a plaintiff is a question for the jury when there is any evidence given on the trial which with any legitimate inference that may be legally and justifiably drawn therefrom tends to show the use of due care. Greenwald v. Baltimore & Ohio R. Co., 332 Ill. 627.

Appellee contends that there was no evidence tending to show affirmative proof of due care on the part of the deceased; that because appellant’s intestate did not do or say anything, at and prior to the accident, that therefore he was guilty of such want of exercise of ordinary care as precludes a recovery by reason of his alleged wrongful death. It is not urged by appellee that the evidence does not tend to show negligence on the part of appellee.

In Opp v. Pryor, 294 Ill. 538, it was held that one who is voluntarily riding in an automobile, as a guest of the driver, is not relieved of the duty to exercise ordinary care and that where a passenger has equal opportunity with the driver to observe danger in crossing a railroad track, it is the passenger’s duty to warn the driver if practicable.

In Walsh v. Moore, 244 Ill. App. 458, this court said, “We do not understand that it is as much the duty of an invited guest riding with the owner and driver of an automobile to learn of danger and to avoid it as it is of the driver.” The evidence in this case shows that appellant’s intestate was riding on the rear seat and had nothing to do with the driving of the automobile. The Appellate Court of the First District in the case of Christensen v. Johnston, 207 Ill. App. 209, quoted with approval the following language from Clarke v. Connecticut Co., 83 Conn. 219, “What conduct on the passenger’s part is necessary to comply with his duty must depend upon all the circumstances, one of which is that he is merely a passenger having no control over the management of the vehicle in which he is being transported. Manifestly, the conduct which reasonable care requires of such a passenger will not ordinarily, if in any case, be the same as that which it would require of the driver. While the' standard of duty is the same, the conduct required to fulfil that duty is ordinarily different because their circumstances are different.”

Under the facts in this record it was clearly a question of fact for the jury to determine whether or not the driver of the car was exercising due care at and prior to the accident. If the driver of the car was exercising due care then undoubtedly it would be a fair inference that the deceased as a passenger in the rear seat was also in the exercise of due care. The fact that appellant’s ear was approaching the street intersection in question is not analogous to that class of cases cited by appellee which make it the duty of a passenger to be on the lookout for approaching trains at a known dangerous place. The driver of a car who has the right of way across a street has a right to assume that drivers approaching will exercise due care at least until the circumstances are such as to give due and proper warning.

If one riding as a guest in the car of another were required at street intersections to look out and warn the driver of approaching cars, a most uncomfortable and hazardous position might be created for the driver of a car who happened to have several passengers as guests, and, it might well be said, if an accident happened that it could be charged to the negligence of the guests in distracting the attention of the driver as he approached or crossed street intersections. A passenger riding as an invited guest in an automobile is only bound to exercise such care as the exigencies of the situation require. Waitrovich v. Black, 254 Ill. App. 49. From the evidence in this case we cannot say as a matter of law that appellant’s intestate was not in the exercise of ordinary care for his own safety and whether he did or failed to do all that a reasonable man in like circumstances would have done is a question which should have been submitted to the jury for their decision.

For the reasons aforesaid we are of the opinion that the judgment of the circuit court should be reversed and the cause remanded for a new trial.

Reversed• and remanded.


author: Mr. Justice Wolfe

text:
    Frank Fuzessery, by his Next Friend, Louis Fuzessery, Appellee, v. American Benefit Casualty Insurance Company, Appellant.
    Opinion filed February 12, 1930.
    Newell & Streeper and M. Esther Funke, for appellant ; Perry H. Hiles, of counsel.

      • Egbert F. White, for appellee..
   Mr. Justice Wolfe

delivered the opinion of the court.

In September, 1927, the appellant, the American Benefit Casualty Insurance Company issued to Frank Fuzessery, the appellee, an insurance policy providing for indemnity under certain conditions in case of loss of fife, limb, eyesight or time by accidental means or loss of time by sickness.

On July 22, 1923, Frank Fuzessery, the insured, while engaged in playing baseball broke three of his toes. The insured was taken to a doctor Schmitt immediately after the accident. He also called on the doctor on July 23 and 24 relative to his injured foot. On July 25 the insured called Dr. Darner who had an X-ray taken of the injured foot. The X-ray revealed a fracture.

The doctor advised the appellee to go home and stay off his foot and apply hot applications until the swelling subsided. This the appellee did and Dr. Darner visited him at his home several times during the time that appellee was at home. On August 6 the appellee called at Dr. Darner’s office and had his foot placed in a cast. After the foot was placed in a cast by Dr. Darner, the appellee called upon Dr. Darner at his office for treatment and observation several times up to and including September 13,1928. He did not leave his home for ten days or two weeks after his first visit to Dr. Darner. After the foot was placed in a cast the appellee by use of his crutches was able to go from his house to the yard and he made numerous trips to the doctor’s office.

The appellee Frank Fuzessery by his next friend, started suit against the defendant company claiming that under the policy of insurance he was entitled to receive from the company five weeks benefits at $25 per week. The case was tried before a jury. The plaintiff and doctor testified relative to the injuries that the appellee had sustained, and introduced the policy in evidence. At the close of the evidence, the defendant moved for a peremptory instruction to find the issues for the defendant which the court overruled. The jury awarded damages in the sum of $125; judgment was entered on the verdict and an appeal perfected to this court.

The main controversy in the case is the construction to be placed on Part D, dealing with the “Confining Accident Indemnity” of the insurance policy introduced in evidence as plaintiff’s Exhibit 1. The portion of the clause to be construed is as follows:

“Upon satisfactory proof of total disability of said insured caused solely from injuries in any manner specified in Part A, which shall not prove fatal or cause loss as aforesaid, but shall immediately, continuously confine the insured within the house for not less than two successive weeks under the necessary charge of a legally qualified physician, who shall visit the insured at least twice each week, the company will pay indemnity at the rate of $25 per week, ’ ’ etc.

It is the contention of the appellant that the court should give this portion of the policy a strict interpretation and cite the case of the American Life & Accident Ins. Co. v. Nerdlinger, 113 Miss. 74, which seems to support the appellant’s contention. Our Supreme Court has never passed on a clause in an insurance policy similar to this, at least no case has been cited by either side in this controversy and we have- been unable to find one that is squarely in point. The Appellate Court of the Second District in the case of Baker v. State’s Accident Insurance Co., 200 Ill. App. 473, passed upon a case very similar to this. The insured under a health and accident insurance policy proving for payment during such time as the insured might he necessarily confined to the house, by reason of disease or illness which would wholly prevent her- from pursuing her occupation, held, that she should be entitled to recover though she went to and from her house to the office of her physician to receive treatment. In the Baker case the clause in the policy was very similar to the one at bar. The insured was afflicted with sore eyes, but instead of remaining at home and having the doctor come to her home for treatment she was taken to the doctor’s office and there treated.

This court in the case of Paul v. National Accident Society, 249 Ill. App. 302, held that the insured was entitled to recover under a similar policy, although he was taken from his home and removed to a hospital and then returned to his home, and later when he was recuperating, on nice days went out with his wife and mother for a drive and was taken to the doctor’s office for treatment.

In the case of Stewart v. Continental Casualty Ins. Co., decided by the Supreme Court of Washington, reported in 250 Pacific Reporter at page 1084, the court in passing upon a similar case say,

“Insured compelled by acute glaucoma to be indoors except for trips to the doctor’s office and exercise at the doctor’s direction when she was necessarily accompanied by another person, held ‘strictly and continuously confined within the house, and therein under the regular care of a physician,’ within the meaning of health insurance policy.” The court in this case reviews and cites numerous cases in other jurisdictions that held the same.

We are of the opinion that the rule adopted by our Appellate Court and by the Washington court is the better rule. We think the evidence in this case supports the allegations of the declaration and as set forth in the policy of insurance that the plaintiff had sustained an injury for which he should receive .compensation from the defendant insurance company.

It is next contended that the court erred in refusing to give the instructions offered by the appellant. Our courts have repeatedly held that the Appellate Courts will not reverse a judgment for errors in the instructions to the jury or admission of evidence where, under the evidence, the jury could have rendered no other verdict consistent with the evidence in the case. (White v. Holden, 206 Ill. App. 567; Vinson v. Scott, 198 Ill. 542; Jackson v. People, 126 Ill. 139; Ryan v. Donnelly, 71 Ill. 100.)

We think that the construction given this insurance policy by the trial judge was correct and under the evidence the jury would not be justified in rendering any other verdict than the one that they rendered, and the error, if any, in refusing to give defendant’s instruction would not be reversible error.

The judgment of the circuit court of Madison county is hereby affirmed.

Affirmed.


text:
    E. E. Campbell, Appellee, v. Lewis L. Lindley, Appellant

      Opinion filed February 12, 1930.
    Harry Faulkner, for appellant.
    M. B. Sullivan, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

This suit was started in the circuit court of Madison county, Illinois. The declaration consisted of two counts; one the consolidated common counts; the second or special count based on the grounds that the appellant did not perform the conditions in a certain stipulation in another case where the same parties were litigants. .Lewis L. Lindley owned the controlling interest in the Press-Becord Publishing Company, a corporation which published the Granite City Press Becord. On September 8, 1926, the appellee, E. E. Campbell, took an option; from the appellant Lindley on all of the capital stock of said Company at an agreed price of $100,000.

Lindley refused to deliver the stock. Campbell brought suit in the circuit court of Madison county, Illinois, against Lindley for specific performance and for an accounting at the January term, A. D. 1927. The pleadings were settled and the case set for trial before Judge Louis Bernreuter on April 1,1927. At the time set for the hearing, the parties asked for time so that an attempt could be made to settle the litigants’ differences without hearing the case. After a lengthy conference between the attorneys and litigants a stipulation was finally entered into by the parties and signed by them.

The present suit is based on damage for failure to comply with paragraphs 2, 6, 7 and 12 of said stipulation and upon an account between the parties for rent. Paragraph 6 provided that defendant Lindley (the appellant in this case) was to assume and discharge and satisfy all liens on the property of the corporation except the unpaid balance of the Building and Loan Association’s mortgage. The appellants in their brief and argument concede that Lindley owes the appellee, Campbell, the sum of $274.16 under the terms of this paragraph. The appellant further conceded that he owes the appellee $6.85, being one-half the costs of the original suit between the parties. So practically the only question to be decided in this case is, whether section 7 of the stipulation was properly construed by the trial judge, and whether it was error for him to admit oral evidence to ascertain the intention of the parties at the time the stipulation was entered into.

Section 7 of the stipulation is as follows: “It'is stipulated and agreed by the parties hereto, through their respective solicitors of record, that this case and proceeding shall be settled and adjusted on the following basis:

“7. Defendant shall not be entitled to any of the accounts and/or bills receivable of said corporation, estimated to aggregate approximately fourteen thousand dollars ($14,000.00), and any and all sums hereafter collected on said accounts or bills receivable shall inure to the benefit of said corporation.”

It is the contention of the appellant that by entering into this stipulation as set forth in above paragraph that the $14,000 mentioned is not a guaranty that the bills receivable will amount to this sum, but is only the amount that was estimated by the parties as being an approximate amount and may be more or less than $14,000. Appellees contended and the court so held, that section 7 is ambiguous and therefore oral testimony could be permitted to explain said section 7 and cite (Kelsey v. Clausen, 257 Ill. 402; Close v. Browne, 230 Ill. 228). '

In Clark v. Mallory, 185 Ill. 227, 232, the court says: “While courts will uniformly endeavor to ascertain the intentions of the parties in construing a contract between them, and for that purpose will look into the surrounding circumstances at the time the contract was executed if the language of the instrument is ambiguous or its meaning uncertain, still when the language employed is unequivocal, although the parties may have failed to express their real intention, there being no room for construction, the legal effect of the instrument will be enforced as written. Intention of the parties is not to be determined from previous understandings or agreements, but must be ascertained from the instrument itself which they execute as their final agreement, otherwise written evidence of an agreement would amount to nothing.” (Miltimore v. Ferry, 171 Ill. 219.)

Upon examination of section 7 of this stipulation we are of the opinion that it is not ambiguous and that the $14,000 mentioned simply is an estimate of the parties that the bills receivable will be approximately that amount, and that oral evidence should not have been admitted to vary or explain the contract as entered into by the parties at the time the stipulation was signed. Appellees argue that this section should be construed the same as section 2 of the stipulation and was a definite agreement that the bills receivable should amount to $14,000. An examination of section 2 of the stipulation will show that they are not similar. One is purely an estimated approximate amount, and the other is a definite, determined amount in that section No. 2 shall not exceed $1,700.

This stipulation was evidently drawn after a long conference, both sides being represented by able attorneys and the court will have to assume that all of the negotiations and discussions that had taken place prior to the signing of the stipulation had been merged in it, and that the same as finally drawn truly reflects the facts as had been agreed upon prior to the execution of the instrument. We are of the opinion that the judgment of $1,370.17 is not supported by the evidence in the case. The appellant admits he is indebted to the appellee in the sum of $281 and appellee is entitled to a judgment for this amount. The judgment of the circuit court of Madison county is hereby reversed with directions that the appellee file a remittitur of $1,089.16, said remittitur to be filed in this court within 20 days after the filing of this opinion; that if said remittitur is not made within said time, then the case to be reversed and remanded to the circuit court of Madison county, Illinois, at costs of appellee. If remittitur is filed, appellant to pay one-fifth of costs and appellee four-fifths of costs.

Reversed on condition that appellee file remittitur of $1,089,16,


text:
    Mississippi Lime and Material Company and Aetna Insurance Company, Appellees, v. Alton & Eastern Railroad Company, Appellant.

      Opinion filed February 12, 1930.
    Rehearing denied March 29, 1930.
    Keefe, Bandy & Listeman, for appellant.
    Pope & Driemeyer, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

In the court below a trial resulted in a verdict and judgment for $2,924.24 in favor of the appellee, Aetna Insurance Company, in an action of trespass on the case wherein the declaration, consisting of one count, alleged, in general terms, that the appellant so carelessly and negligently drove its locomotive against a motor truck owned by the appellee, the Mississippi Lime and Material Company, that by reason thereof the truck was demolished. The declaration further alleged that the servants of the Mississippi Lime and Material Company were in the exercise of ordinary care for the safety of the truck at the time of the collision. The general issue was filed by appellant. The truck was insured against damage by collision by the appellee insurance company and it is not contended that the insurance company has not paid to the insured the amount of the verdict for the loss of the truck, nor that the insurance company has not been subrogated to the right of the owner of the truck to sue for its destruction.

One of the alleged errors assigned by appellant for a reversal of the case is that the court erred in entering judgment upon the verdict because the testimony fails to prove that the accident was caused by the negligence of the appellant as charged in the declaration. This alleged error was not assigned, as a ground for a motion for a new trial made in the trial court. There is no general assignment of error that the trial court erred in overruling the motion for a new trial, nor that the evidence in the case is insufficient to support the verdict and judgment. The testimony bearing upon the negligence of the appellant is in conflict and of such a character, as will hereafter appear, that its weight was a matter peculiarly for the determination of the jury. There is evidence in the case fairly tending to prove the negligence of the appellant as charged in the declaration. The court did not err in overruling appellant’s motion for a directed verdict at the close of all of the evidence. Central Ry. Co. v. Mehlenbeck, 103 Ill. App. 17; Donk Bros. Coal & Coke Co. v. Slata, 133 Ill. App. 280.

It is also assigned as error, and most earnestly insisted by the appellant, that the testimony shows that the driver in charge of the truck was not in the exercise of ordinary care for the safety of the truck at the time of the collision.

As a general rule, contributory negligence is a question of fact, but when there is no dispute as to the facts, and when all reasonable minds will agree upon consideration of the facts, that the plaintiff’s own negligence contributed to the injury, the question of contributory negligence becomes one of law. Beidler v. Branshaw, 200 Ill. 425; Belt Railroad Co. v. Skszypczak, 225 Ill. 242. An examination of the facts and circumstances appearing in the evidence of this case does not convince us that the question of contributory negligence is one of law, as thus defined by our Supreme Court, and justifies this court to hold that the owner of the truck was in effect guilty of contributory negligence per se, as is contended by appellant.

The testimony was that the appellee, the Mississippi Lime and Material Company, owns and operates a plant handling crushed rock, cement and sand near the river front in Alton. Between the river and the company’s plant, the appellant has its main line track extending east and west. Branching off from this main track, running parallel thereto and extending immediately in front of the plaintiff’s plant, there is a switch track. The Lime and Material Company has a concréte warehouse which extends to within about four feet and nine inches of the nearest rail of the switch track. There is a road that crosses the main and switch tracks at right angles and enters the property of the Lime and Material Company. West of the concrete warehouse, the company maintains a hopper or a batcher which is used for dumping material into trucks of the company which are driven over this road and under the hopper for this purpose. This hopper stood on legs and at its east end was about seven and one-half feet from the nearest rail of the switch track.

On March 20,1928, one of the trucks belonging to the Lime and Material Company was driven by their employee, Walter Estes, in a southerly direction upon this road and under the hopper for the purpose of being-loaded with material. Estes and his truck were facing the switch track when he drove under the hopper. Either immediately before he was ready to stop his truck, or instantly after he had stopped, a collision occurred between the truck and the defendant’s switch engine No. 154, which had backed off of the main track onto the switch track to clear the main track for appellant’s switch engine No. 152. The engine was backing at a speed of three or four miles an hour eastward and collided with the truck. The truck was knocked against a support of the hopper, dislodging it, and the hopper with the material it contained, fell on the truck resulting in the destruction of that vehicle. There was no one on the rear of the locomotive to give warning of its approach. The testimony whether a whistle was blown or a bell rung, is in conflict; employees of the Lime and Material Company and employees of the Eailroad Company being in different places at the time of the accident, gave contradictory evidence whether any signal by blowing a whistle or ringing a bell was given by the appellant. The evidence further shows that the switch track is straight, upon level ground, and that if a person should step out beyond the concrete warehouse, he could see for several hundred feet in the direction from which the switch engine approached.

Estes testified that he had been employed by the Lime and Material Company for about three years as a chauffeur; that he knew of the existence of the switch track and that he had driven across the railroad track several times a day for almost three years; that he knew that trains operated over the track, and had seen them there on various occasions; that he drove the truck at the time in question, toward the switch track and after he had spotted it, to receive a load from the hopper, he saw the switch engine for the first time at a distance of from 20 to 25 feet east of him; that the warehouse obstructed his view of the engine for a greater distance, the wheels of the truck being then about 18 inches from the tracks.. He also testified that he was giving attention whether a train was coming and he was listening; that no signal of the approach of the engine was given; that no whistle was sounded and he did not hear the bell ringing on the engine; that there was no noise preventing him from hearing such signals; that for ten seconds before stopping the truck in position under the hopper, he was looking backward to ascertain the proper location to place the truck. The fireman on engine No. 154 testified that Estes moved the truck toward the engine and as he turned the truck, the hub thereof caught on the third journal of the engine.

It appears from the testimony of Estes that it was not his intention to cross the switch track, nor was he attempting to do so when the truck was struck by the engine. He was facing the tracks as he drove the truck under the hopper and might have been able by using ordinary care, to have stopped the truck if he had seén the locomotive coming at the rate of three to four miles per hour at a distance of 20 to 25 feet from him, in time to have prevented the collision. We cannot say, considering all the evidence, that he was guilty of contributory negligence, as a matter of law, because he drove the truck a few inches too near the tracks, as he momentarily looked backward in the performance of his duty to spot the truck and place it clear of the passing engine. We cannot say that the verdict of the jury finding that he was not guilty of contributory negligence is against the manifest weight of the evidence. Central Union Bldg. Co. v. Kolander, 113 Ill. App. 305; Carden v. Chicago Rys. Co., 183 Ill. App. 168.

The superintendent of the Lime and Material Company testified on behalf of the appellees and on cross examination by appellant, that the Lime and Material Company owned the switch track and maintained it. Appellant did not object to this testimony when introduced in chief and introduced evidence upon its own behalf to the effect that the appellant owned and maintained the switch track. It is too late for the appellant to insist that this evidence was inadmissible because the appellees did not introduce a deed showing their ownership of the switch track, as the testimony introduced by the appellant was of the same character. A party cannot on appeal complain of an error in admitting evidence, without objection at the trial, which has been committed against him where it appears that a like error has been committed in his favor. Jones v. Sanitary District, 265 Ill. 98; Kuhn v. Eppstein, 239 Ill. 555; Bogart v. Brazee, 331 Ill. 160.

After the question of the ownership of the switch track had been submitted to the jury for a verdict on the evidence introduced by both parties as above in- . dicated, the appellant, after verdict, made a motion for a new trial, one of the grounds assigned for a new trial being that the appellant was surprised by the testimony given by the superintendent of the Lime and Material Company, that such company owned and maintained the switch track. To a motion for a new trial, the appellant attached the affidavit of a civil engineer of the appellant railroad company swearing that he had made an examination of the records; that a deed appeared on record showing that the railroad company was the owner of the switch track; and further that said railroad company maintained the said switch track and kept it in repair; that the report of the section foreman of said railroad shows that at various times the railroad had installed new rails on the switch track; and three ties were applied on June 14, 1926. No motion was made at the time this testimony was introduced for a continuance to enable the appellant to disprove the testimony of the superintendent of the Lime and Material Company, that such company owned and maintained the switch track. A party asking for a new trial for surprise at evidence admitted must indicate surprise to the trial court at the time and ask for delay or a continuance to enable him to obtain other evidence. Tindall v. Chicago & N. W. Ry. Co., 200 Ill. App. 556; Robishaw v. Schiller Piano Co., 179 Ill. App. 163; Nehring v. Ricker, 126 Ill. App. 262.

• The assignment of error in this court on the introduction of this evidence, is, that the testimony that the Lime and Material Company owned and maintained the switch track is untrue as shown by the affidavit attached to the motion for a new trial. This was not one of the grounds assigned for a motion for a new trial in the court below and consequently there is no ruling by the trial court on the alleged falsity of this testimony, and an exception thereto by the appellant. Therefore the question will not be considered on appeal. City of Kankakee v. Phipps, 135 Ill. App. 585. Furthermore we do not think that the appellant should be permitted to take his chances for a successful verdict on testimony which he allowed to be admitted without objection, and in opposition to which he introduced evidence of a like character. Plaintiff ought not to be permitted to speculate on getting a verdict at the hands of the jury, and if disappointed, obtain a new trial on the ground of surprise. Martin Lumber Co. v. Walsh Bros., 81 Ill. App. 403; Todd v. Banning, 118 Ill. App. 676. And this rule has been applied where the motion for a new trial on the ground that he was surprised by the perjured testimony of a witness of his opponent. Barnes v. Childers (Mo. App.), 246 S. W. 342.

It is also urged by appellant that the court erred in admitting testimony of one Briggs, a common laborer employed by the Lime and Material Company, that the switch engine had no business on the switch track. The evidence indisputably shows that the appellant used the switch track to clear the main track and for other purposes and that Engine No. 154 was backing on the switch on the occasion in question, to clear the main track. ' ■

We do not consider the admission of this part of Briggs’ testimony, taken together with all of his evidence, as reversible error.

Not finding the record subject to reversible error as assigned by appellant, the judgment "of the lower court is hereby affirmed.

Affirmed.


author: Mr. Presiding Justice Eldredge

text:
    The People of the State of Illinois, Defendant in Error, v. Walter Turner, Plaintiff in Error.
    Gen. No. 8,337.

      Opinion filed February 3, 1930.
    Rehearing denied April 4, 1930.
    Samuel R. Turner and Thomas F. Smith, for plaintiff in error.
    A. W. Schimmel, State’s Attorney, for defendant in error.
   Mr. Presiding Justice Eldredge

delivered the opinion of the court.

At the April term, 1929, of the circuit court of Pike county, an indictment was returned by the grand jury charging Walter Turner (plaintiff in error), and Howard Robbins, in the first two counts thereof, of having burglarized the store building of one J. H. Dennis and taking therefrom a number of overalls, lumber jackets, sheep skin coats, Indian blankets, underwear, caps, corduroy pants, blue shirts, etc., and in the third count charging said parties with feloniously, unlawfully, wilfully and maliciously receiving the same said articles knowing that they had been so feloniously stolen, taken and carried away from said store building of said Dennis. A separate trial was granted to the plaintiff in error and the jury returned a verdict finding him guilty of having received the stolen goods as charged in the third count of the indictment, the value of the same being $10. Plaintiff in error was sentenced to the Illinois State Farm at Vandalia, Illinois, for a term of eight months and to pay a fine of $400 and the costs of the suit.

J. H. Dennis was conducting a store at Chambers-burg in Pike county on November 27, 1928. On the night of that day the store building was forcibly entered and the chattel property mentioned in the indictment was taken therefrom. On January 5, 1929, Mr. Dennis received an anonymous letter which was later proven to have been written by one Everett Downey who was then confined in the county jail of Cass county together with one John Stone for burglary and larceny committed by them in Arenzville in said county. Upon the receipt of this letter, Dennis and two deputy sheriffs of Pike county, Johnson and Medaris, went to the jail in Cass county and interviewed Downey. The way Dennis knew that the letter came from the jail located at Virginia in Cass county was through a postscript written on the back thereof by the sheriff of that county. On direct examination, Dennis testified, without objection thereto, that he received the above-mentioned letter and that he and the deputies, Johnson and Medaris, then went to the county jail of Cass county and interviewed Downey and as a result of that interview Dennis and the deputy sheriffs procured search warrants for the homes of Bobbins and Turner (plaintiff in error). On cross-examination, in answer to questions propounded by counsel for plaintiff in error, Dennis testified that he learned the letter was written by someone confined in the county jail of Cass county from the fact that there was a postscript added on the other side of the letter from the deputy sheriff and he thought the letter was dated January 5; that he and the deputy sheriffs went to the jail and saw Downey and talked with him in the office thereof. Then in response to the question propounded/by counsel for plaintiff in error, “What did Downey say to you there?”, he replied, “He says, ‘I suppose you want to know who is mixed up in this case.’ He first said he and Stone were concerned in the robbery. He said ‘I suppose you want to know who the others were?’ ” Then further in cross-examination the witness was asked by counsel for plaintiff in error, “What knowledge had you that they had done it,” to which he answered, “Grot some information from this man Downey.” On redirect examination by the State’s Attorney the witness was asked, “What else did the postscript and that letter state other than where you should" appear, the letter you received?” To this question objection was made and overruled and the witness answered, “Stated that this boy, he didn’t mention his name at the time, and before I went over I didn’t know his name. He stated that this boy was in bad, and that I had better come over and see what there was in it, what he had to say.” The State’s Attorney at,this time asked the following question, “You may tell the jury beginning with the first, the entire conversation you had at the jail with Downey,” Counsel for plaintiff in error then objected on the ground that such conversation was not binding on Turner. The court overruled the objection, stating, “You went into it, and they are entitled to the balance of it.” The witness then testified as follows: “We asked at the sheriff’s office for this boy that had written over and he brought Downey up from the .cell I suppose. He brought him to the office and he had on a pair of overalls and a cap and a pair of corduroy pants, and he says, ‘Are you Mr. Dennis?’ I told him I was. He says, ‘I suppose you want to know something about this robbery at your place.’ I told him I did and asked him if he was implicated in it, in this burglary, and he said he was, and he said, ‘Bud Stone is also implicated,’ and he says, ‘You want to know who the other two are!’—I said, ‘yes,’—he said, ‘Howard Bobbins and Walter Turner.’ ” Thereupon counsel for plaintiff in error objected to the answer and moved to have it stricken which motion the court overruled. The witness then continued in substance as follows: “Then we went into the matter of the stolen goods and he told me about the caps. He said, ‘We got six caps, and we got four pair of corduroy pants, and we got ten or twelve shirts,’ and then he said, ‘We got a shawl, and then we got some Indian blankets, and there were some shirts and the watches.’ He said they got some watches and they got a clock, and I don’t recall what else there was. Two sheep-lined coats, some cigarettes and cartridges and some lumber jackets.. We talked in a general way about the robbery. And he wanted to know if I wanted the names of these other two men and mentioned Howard Bobbins and Walter Turner. Then I believe he went on to relate how they divided the goods. I believe he said they had given one of the blankets, the Indian blankets, to Bobbins, and one to Turner, and that Turner had gotten one pair of corduroy pants. That is just as I remember it. That he and Stone had taken the sheeplined coats and a pair each of corduroy pants. And I believe he said that he, Downey, got two of the watches and that they divided this stuff up at Turner’s house, divided it as near equally as they could. He said Turner got the cartridges and Bobbins got one of the lumber jackets. ’ ’

All the above testimony in relation to the receipt of the anonymous letter, the actions of the officers in going to the county jail of Cass county and the interview with Downey and what Downey said in regard to the participation of the plaintiff in error in the burglary was wholly incompetent and Downey’s statements were purely hearsay. It is true that on cross-examination, counsel for plaintiff in error did ask some questions in regard to the date of the letter and how the witness found out that it was from Downey. But in our opinion this was not sufficient to open the door on redirect examination for all the conversation the witness had with Downey in regard to the commission of this crime implicating’ plaintiff in error and the objection made thereto by counsel should have been sustained. Counsel for plaintiff in error should have objected to all this incompetent evidence which was introduced on the direct examination of the witness in regard to the receipt of the letter by the witness and the actions of the officers pursuant thereto.

The deputy sheriffs, Medaris and Johnson, together with Dennis, after procuring search warrants authorizing the search of the house of plaintiff in error, went to the premises and made a search but found none of the goods alleged to have been stolen. They arrested the plaintiff in error and brought him to the jail in Pike county. They also arrested Bobbins and placed him in the jail.

After the plaintiff in error was arrested he was taken to the county jail in Pike county and was subjected to an examination in the presence of the sheriff, deputy sheriffs, Medaris and Johnson, and the State’s Attorney. At this interview with the officers he denied having had anything to do with the burglary or receiving the property. Bobbins, who, it appears, had previously confessed his participation in the crime, was then brought into the presence of the plaintiff in error and made to repeat his confession and detail all the circumstances of the crime and in which he stated that Turner participated therein. In regard to this examination Medaris testified in substance as follows: “I brought him down in the office to talk and he denied the charge and I asked him if he had anything to do with it. He said he didn’t.” On cross-examination he testified: “The next conversation I had with him was the next morning in the jail office. If I remember right there was present Mr. Johnson, Mr. Turner, Mr. Schimmel and myself. He said he didn’t have anything to do with it. I think the State’s Attorney asked him questions about this burglary. I asked him. I brought him up for the purpose of questioning him. The first question I asked him in the jail office was, ‘Walt, did you have anything to do with this stuff?’ He said, ‘I’ve been framed.’ That is all I could say. The sheriff said, ‘Lead him back to his cell. ’ I talked to him every day but not about the burglary. That is all the talk I have had with him.” Neither the sheriff nor Bobbins testified in the case. Johnson, the" other deputy sheriff who was present at this examination or interview, on direct examination testified in substance as follows: “Bobbins had admitted it before and claimed that they burned the stuff the night before we got there out at Turner’s house. Turner denied being into Bobbins’. He went into town to get some medicine which was for him. He admitted being down to Howard Bobbins’ house that night and telling him about the message he got from the sheriff, and that afterward said they went out to Turner’s house and burned the stuff, also took Bobbins ’ stuff out there to Turner’s. That was the night of the first day we were over there; it was the night they went out to Turner’s, was the night of the first day we were over to Virginia. I don’t recall any other statements that Turner made regarding the burglary at that time.” On cross-examination he testified as follows: “Turner denied that he had had anything to do with the burglary until he heard the confession made by Bobbins when he admitted being down to Howard Bobbins’ and said the sheriff told him the night before we were coming. He admitted taking the stuff. He did admit taking this stuff at Bobbins’ out to his house, and he and Bobbins burning it up in the cook stove. He said that, well, he had been down to Howard Bobbins ’ house; he had been into Beardstown to see a doctor, had a sore foot and went in to get some medicine, and that he did go down to Bobbins ’ house and told him about seeing the sheriff and getting word that we would be there the next day to search the place. And that they also gathered up the stuff and took it out to Turner’s house and they burned what stuff was there. ” It is very strange that one deputy sheriff should testify that during all this examination of the plaintiff in error that he denied any participation in the crime whatever and that the other deputy sheriff who was present should testify that he substantially admitted all the facts stated by Bobbins. Either one or the- other is mistaken as to what Turner did admit, if he admitted anything. As stated before, the sheriff himself, who was present, was not placed on the stand as a witness and gave no testimony in regard to this interview. The whole procedure was staged for the express purpose of getting a confession out of the plaintiff in error by having Bobbins personally detail all the facts of the crime in the presence of the plaintiff in error and the evidence of the two deputy sheriffs can in no way be reconciled. Up to this time, it is admitted that the plaintiff in error had at all times denied his guilt and had insisted that he had had nothing to do with the robbery or the burning of the goods at any time. The plaintiff in error himself testified that he never confessed at this time nor at any other time to the facts as told by Bobbins and in this he is supported by the testimony of Medaris, the other deputy sheriff who was present. The plaintiff in error claims that he was hard of hearing and did not hear all that Bobbins and the others said and it is undisputed that he was partially deaf. An admission or confession made by an accomplice in the presence of the defendant charging the latter with the guilt of a crime, when the latter then and there denies it, is not admissible against him. People v. Montgomery, 271 Ill. 580. Before an admission or confession made by an accomplice in the presence of defendant is admissible, the facts and circumstances in evidence must show that the defendant heard and understood the admission or confession. People v. Rischo, 262 Ill. 596.

On the theory that the plaintiff in error had confessed that he was guilty of the crime, in the manner described by Bobbins, the court permitted Johnson to testify as to what Bobbins said which was as follows: “He said he took Bud Stone out to Turner’s on the night Mr. Dennis’ store was robbed, out to Turner’s place. Everett Downey was there and wanted them to go to Chambersburg to help rob the store, and the four of them went to Beardstown, crossed the river and went through Bushville and into Chambersburg, only making one stop at a filling station along the road and filled up with gas and on into Chambersburg and left the car which was Bobbins’ car, a Chevrolet touring car, and left it at the levee about six or seven blocks from Dennis ’ store, and Turner stayed with the car, and the other three, Downey, Bobbins and Stone, went to the store and broke in and got the goods, and wrapped them up in three Indian blankets and carried them back to the car and Turner was still there waiting for them, watching the car, and from there they went back to Beardstown, never made but one stop, and that was on the bridge to turn in the ticket and from there to Turner’s house, and unloaded this stuff into a Ford truck about 5 o ’clock in the morning. They ate breakfast at Turner’s, and Bobbins went back to town and went to work on the section where he worked all the time. About a week after that they went out to Turner’s house and got his part of the stuff that that other three had left. He went out and got what stuff he was supposed to get.”

Under the facts as developed by the evidence, we believe that the trial court erred in admitting the above testimony for the reason that the evidence does not sufficiently show that the plaintiff in error heard and understood the account of the burglary as made by Bobbins or that he did in fact make any admissions of his guilt. If we are correct in this, then the admission of the above testimony was erroneous and extremely prejudicial to the interest of the plaintiff in error as the only competent testimony which could connect the plaintiff in error with the crime was that given by Downey, himself, who testified in substance to the facts as set out in the confession of Bobbins. As against this testimony of Downey are the following facts. He, himself, was a confessed accomplice and also an habitual criminal. The plaintiff in error was a farmer and lived about 6 miles from Beardstown in Cass county and had lived in that comity all his life, in the same vicinity for 18 years and on the same farm for 8 years and at the time of the crime his family consisted of his wife and 3 daughters. He also had another daughter who was married to George Miller, who resided about 3 miles distant from his home. The plaintiff in error testified that about dusk after his family had had supper on the night that the burglary was committed, he, together with his wife and his daughters, Mary, Dorothy and Louise, went to the home of George Miller, his són-in-law, and arrived there about 8 o’clock that evening; that he went there for the purpose of procuring some articles which Mrs. Miller had ordered through a mail order house for him and his family; that they spent the evening in visiting and listening to the music from a phonograph and started home about 11 o’clock and had traveled a distance of about a quarter of a mile when his automobile became stuck in a mud hole on the road whereupon he returned to the home of Miller and requested him to take his tractor and pull him out of the mud hole and that the latter filled the radiator on the tractor, proceeded to the place where the automobile was held fast and pulled the same out of the mud hole; that this took about an hour and on account of the delay he did not arrive home until about 1 o’clock in the morning when he and his wife and daughters retired. In this he is corroborated by Mr. and Mrs. Miller and two of the daughters. He is further corroborated by John Jokisch, a deputy sheriff of Cass county, who testified that he passed the automobile of the plaintiff in error and his family on the night in question on his return home from calling upon a young lady. He stated that he left the place where he was visiting about 12 or 12:15 that night and overtook plaintiff in error’s automobile within a half mile of that place; that he recognized plaintiff in error’s car and as he passed the plaintiff in error called him by name and he recognized his voice. He fixes the date as follows: “Why, the purpose I went down to her house was to make a date to take her to a box supper at Black Oak School. We made arrangements on the night of the 28th. The following day after the. 28th we were mailing preparations to go to Pekin for Thanksgiving dinner.”

Plaintiff in error also produced a number of witnesses among his neighbors who testified that his general reputation in the community where he resided as to being a law-abiding citizen was good. The plaintiff in error further testified that the witness, Downey, had before that time been employed by him on his farm and had been discharged.

One of the defenses in this case is that of an alibi. The court gave on behalf of the defendant in error the following instruction: “You are instructed that the defense of an alibi, to be entitled to consideration, must be such as to show that at the very time of the commission of the crime charged, the accused was at another place, so far away or under such circumstances that he could not, with any ordinary exertion, have reached the place where the crime was committed so as to have participated in the commission thereof. ’ ’ In regard to a similar instruction in the case of People v. Fisher, 295 Ill. 250, the court held: “The substance of it is that his defense of alibi is not entitled to any consideration unless the evidence shows a complete and perfect alibi, and the instruction was likely to be taken by the jury as an intimation from the court that the evidence on the question was not of that character to warrant them in considering it. The rule of law on the question óf an alibi is the same as that for all other defenses. The defendant is only required to offer sufficient evidence on that question to raise in the minds of a jury of reasonable men a reasonable doubt of his guilt. He is entitled to full and fair consideration of his evidence upon any defense he may seek to make. This instruction is of the same character as one given for the People in Waters v. People, 172 Ill. 367, the giving of which was held by this court to be reversible error. We hold that it is reversible error in this case, where the evidence is very conflict-. ing. ’ ’

If the evidence in regard to the alibi is true, then the plaintiff in error is not guilty of the crime charged. It was not necessary that the jury should believe that the defense of alibi was conclusively proven but only that it should raise a reasonable doubt in their minds as to the guilt of the plaintiff in error.

The judgment, however, must be reversed for another reason. While it is true that an indictment can charge burglary and receiving stolen goods in separate counts, yet, each offense is a distinct crime in itself' and if the proofs conclusively show that a defendant so charged can be guilty of but one of them he cannot be convicted of the other offense. All the evidence in this case for the People, both competent and incompetent, shows that the defendant together with Robbins, Stone and Downey, went in an automobile to Chambersburg for the sole purpose of robbing the store in question. It all shows further that when they arrived in the vicinity of the store the plaintiff in error remained in the automobile to watch the same while his three accomplices actually entered the store and took the goods therefrom and after which they divided the goods among themselves. If this evidence is true, then plaintiff in error aided and abetted the other three in the commission of the burglary and was a principal with his accomplices in the commission of the crime of burglary and if he is guilty of anything he is guilty of that crime. In the case of People v. Dalke, 336 Ill. 446, it is held: “Before there can be a conviction for receiving stolen property the evidence must show, beyond a reasonable doubt, that the property has, in fact, been stolen by a person other than the one charged with receiving the property; that the one charged with receiving it has actually received it or aided in concealing it; that the receiver knew that the property was stolen at the time he received it, and that he received the property for his own gain or to prevent the owner from again possessing it.” In this opinion the court quotes from the case of People v. Ensor, 310 Ill. 483, as follows: “Granting that the evidence justifies the conclusion that the automobile in question was in fact stolen and that it was found shortly thereafter in the possession of plaintiff in error, the presumption against plaintiff in error would be that he stole it himself. One person cannot be both the thief and the receiver of stolen property. He cannot receive stolen property from himself.”

If the plaintiff in error aided and assisted his three accomplices in the breaking and entering of the store building and in the larceny of the goods therefrom, then he is as guilty of burglary as his accomplices and he could not receive the stolen goods from himself.

The judgment of the circuit court of Pike county is reversed.

Reversed.