text:
    Albin Kuzminski, by John Kuzminski, His Next Friend, Appellee, v. E. J. Waser and J. Obermeier, Trading as Waser Auto Radiator Company, Appellants.
    Gen. No. 41,587.

      Heard in the second division of this court for the first district at the December term, 1940.
    Opinion filed May 14, 1942.
    Delmar J. Hill and Cyrus L. Garnett, both of Chicago, for appellants.
    Henry Mitgang, of Chicago, for appellee; Arthur A. Woleinsohn, of Chicago, of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

An action for damages for personal injuries sustained by plaintiff. A jury returned a verdict finding defendants guilty and assessing plaintiff’s damages at $5,000. Judgment was entered upon the verdict. Defendants’ motion for a new trial, made nine days after the entry of the judgment, was overruled. Defendants prosecuted an appeal to the Supreme Court (Kuzminski v. Waser, 374 Ill. 428) “on the ground, as it is claimed, that although the appellants had the form they did not have the essence of due process of law or a constitutional jury trial.” The contention was based upon proof which was received on the motion for a new trial that Sonia Young, before she was accepted as a juror, had testified falsely on the voir dire examination to the effect that neither she nor any member of her family had been interested in a personal injury suit arising out of an automobile accident, whereas her husband had been the plaintiff in such a suit shortly before the instant trial. The Supreme Court held that it had no jurisdiction of the cause for the reason that “the most that is claimed for the appellants amounts to an argument that a new trial should be granted because of the assumed bias of this juror,” and transferred the cause to this court.

Defendants state that they rely upon the following alleged errors for a reversal of the judgment: “ 1. The trial court erred, and violated defendants’ constitutional guarantees of an impartial jury trial and due process of law, in not granting a new trial when it appeared, after trial, that one of the jurors, unknown to defendants, had given materially false answers on her voir dire. 2. The trial court erred in giving certain instructions to the jury at plaintiff’s request. 3. The trial court erred in refusing to give a proper instruction tendered by defendants.” Although defendants’ argument as to point 1 is based upon the assumption that the false statement made by the juror upon her voir dire “in and of itself disqualified her” and that “she therefore did not possess the statutory qualifications of a juror,” and “in that respect too the jury was not a constitutional jury,” nevertheless, we will assume that point 1 is broad enough to support a contention that the defendants were prejudiced by the false answers óf the juror.

In Maher v. New York, C. & St. L. R. Co., 290 Ill. App. 267, the foreman of the jury had made misstatements and had not truly and fully answered questions put to him on his voir dire examination, “in that he was asked by counsel for defendant whether he or any member of his family had ever been involved in a personal injury case or whether he had ever been sued in a personal injury case, which questions were answered in the negative; that thereupon the prospective juror was examined by counsel for plaintiff who asked, ‘Have you ever had any experience that might prejudice you against . . . the plaintiff?’ and ‘Nobody ever sued you for damages?’ and the answers were, ‘No, sir.’ ” (p. 269.) Neither the defendant in that suit nor its attorney learned of the falsity of the answers until after the trial. In the opinion of this court, written by Mr. Justice O’Connor, appears the following (pp. 275, 276, 277):

“In the instant case, as in all cases, ‘the rule of reason’ must constantly be kept in mind. Judgments are not reversed for every error that appears in the record. If this were so, few if any, would be permitted to stand. But we think the true test in the case at bar is not whether the prospective juror answered truthfully and fully the questions put to him, but, Has the petitioner been prejudiced in the case ? Swan v. Boston Store, 191 Ill. App. 84; Pienta v. Chicago City Ry. Co., 208 Ill. App. 309; Edwall v. Chicago, R. I. & P. Ry. Co., 208 Ill. App. 489; Raub v. Carpenter, 187 U. S. 159; United States v. Rosenstein, 34 F. (2d) 630; O’Brien v. Gen. Accident Corp., 42 F. (2d) 48; James v. State, 68 Ark. 464; State v. Cleary, 40 Kan. 287; State v. Brown, 114 Kan. 452; Schmidt v. Rose, 6 Mo. App. 579; Hays v. Thompson, 15 Abbotte Pr. New Series, 220; Burden v. Stevens, 174: Okla. 312; Suggs v. State, 46 Okla. Crim. 340; Sansouver v. Glenlyon Dye Works, 28 R. I. 539; Leeper v. State, 29 Tex. Crim. App. 63; Goad v. State, 106 Tenn. 175; Beck v. Thompson, 31 W. Va. 459.

“In the Swan case (191 Ill. App. 84) it was held that it was not reversible error for the trial judge to overrule the motion for a new trial because a juror had made incorrect and misleading answers on his voir dire examination, since it did not appear that the juror was prejudiced or biased against the defendant.

“In the Pienta case (208 Ill. App. 309), a suit to recover for personal injuries, a prospective juror was asked whether he or any of his relatives had ever been in a street car accident, and whether he or they had ever been interested ‘in a case of that kind.’ He replied in the negative. It afterward appeared that his wife had met with an accident on a sidewalk and had settled a claim therefor with the city, and it was held that the reply was not untrue, and the judgment was affirmed.

“In the Edwall case (208 Ill. App. 489) suit was brought to recover damages for personal injuries. The court there said (p. 503): ‘A brother-in-law of one of the firm of defendant’s attorneys (not the one that tried the case) was accepted on the jury without the plaintiff’s knowledge of that relation. Affidavits are filed here tending to show that the juror evaded questions put to him on his voir dire that ought to have developed that fact. . . . We do not regard this reversible error.’

“In Raub v. Carpenter (187 U. S. 159), a motion was made to vacate a decree, one of the grounds being that one of the jurors was disqualified for service because he was under the age of 21 years and had several times been convicted of the crime of petit larceny, and it was charged that the juror had falsely answered questions put to him on his voir dire touching these two questions. The motion was overruled and the Supreme Court of the United States held that the matter was within the discretion of the trial court. The court there refers to Wassum v. Feeney, 121 Mass. 93, where that court referred with approval to Hill v. Yates, 12 East 229, where it was said, ‘where the son of a juryman unlawfully served in his father’s place, and pointed out that Lord Ellenborough there “said that he had mentioned the case to all the judges, and they were all of opinion that it was a matter within their discretion to grant or refuse a new trial on such a ground; that if no injustice had been done, they would not interfere in this mode.” ’

“In State v. Cleary, 40 Kan. 287, the court said (p. 295): ‘It has been decided in very many reported cases that the most important consideration in questions about the impartiality of jurors, is whether an unjust verdict has resulted from the presence of obnoxious jurors upon the panel; if not, it would be idle to grant a new trial, which would probably be productive only of the same result.’

“And in Suggs v. State, 46 Okla. Crim. 340, 285 Pac. 985, the court said (p. 986): ‘As a general rule a verdict will not be set aside for reasons that would be sufficient to disqualify a juror on a challenge for cause which existed before the juror was sworn, but which was unknown to accused until after the verdict, unless it appears from the whole case that the accused suffered injustice from the fact that the juror served in the case.’ To the same effect are the other cases above cited, but we think it would serve no useful purpose to discuss them.

“Since it is held in the cases above cited that it is not error for the court to overrule a motion for a new trial where a prospective juror has answered falsely or has not sufficiently disclosed the facts, unless prejudice is shown, with greater reason, we think, should the court deny a new trial where the motion, under section 72 of the Practice Act, is not made until after judgment has been entered, and where, as in the instant case, the judgment has been affirmed on appeal to this court, and leave to appeal has been denied by the Supreme Court.” Leave to appeal in that case was denied (see 291 Ill. App. xxxii).

In People v. Beacham, 358 Ill. 373, the defendant was tried and convicted for procuring an explosive compound with intent to use it for the unlawful injury or destruction of life or property. The defendant was arrested as he came out of an alley in the rear of the C. I. P. S. building, in Springfield, and at the time he was carrying a fused bomb made from a syrup can. The Peabody Coal Company owned and operated coal mines in the Springfield territory and had an office in the C. I. P. S. building. “All of the miners employed by the company were members of the United Mine Workers of America. A rival organization, the Progressive Miners, wanted to place its members upon the pay-roll of the company. A struggle ensued which has led to violence and bombing.” (p. 374.) Upon the motion for a new trial the defendant claimed that one of the jurors was disqualified because he had made false statements, on his voir dire, to the effect that he was not employed at a Peabody mine, when in fact, as it afterwards developed, the juror was employed at a Peabody mine. The trial court after considering the affidavits of counsel for defendant and the juror, “as well as the further examination of the juror in open court,” held that the point was without merit. The Supreme Court, in passing upon the question, held that the fact that the juror was employed at the Peabody mine did not disqualify him as a juror and that such fact would have been at most a reason for a peremptory challenge by the defendant. The Supreme Court concluded (p. 377): “After a careful review of the evidence and affidavits presented to the trial court in this regard, we cannot say that the denial of the motion for new trial constituted prejudicial error in this case.”

Defendants cite the following Illinois cases in support of their contention: Coughlin v. People, 144 Ill. 140; Guykowski v. People, 2 Ill. 476,; People v. De Lordo, 350 Ill. 148; Donovan v. People, 139 Ill. 412, and Lavin v. People, 69 Ill. 303, but none of these cases has a bearing upon the question before us, vis., Were defendants prejudiced by the false answers of the juror 1

An able, experienced and conscientious judge presided in the trial of the instant cause. Upon the motion for a new trial he not only heard affidavits introduced by defendants in support of their claim as to the juror, Young, but at the instance of defendants heard evidence bearing upon the claim. The juror, Young, was examined by court and counsel. At the conclusion of the hearing the trial judge delivered the following opinion:

. . The principal ground for new trial urged by the defendant is that a juror (Mrs. Young) made an incorrect answer on her voir dire examination. The jurors were examined in panels of four, and the following questions were asked by defendant’s counsel of the entire panel of four of which the juror in question was one:
“ ‘Let me ask you this question now again’ — directed to you four on this panel — ‘Has anybody been hurt in any sort of an accident, any one of you jurors ? Has any of you had any member of your family hurt in any accident, or had any close friend hurt wherein you were concerned with the prosecution of a claim or suit for it?’
“Mrs. Young remained silent.
“It appears that Mrs. Young’s husband, on about May 15, 1936, was struck by a city truck, brought suit and obtained an agreed judgment against the City for $500 in June, 1939. Counsel for defendant first produced Mr. Victor E. Karlsen, attorney for Mr. Young in his suit against the City, who testified to the settlement of that case. He testified also that he knew Mrs. Young. He further testified as follows:
“ ‘ Q. As far as you know, she didn’t have any axes to grind with anybody, did she? A. No.
“ ‘Mr. Mitgang [attorney for plaintiff]: That is all.
“ ‘The Court: As far as you know, she was never a party to a suit?
“ ‘The Witness: No, sir, she didn’t know anybody in it and she — as far as I know — I believe she could render a fair and impartial verdict without any reservations on the other trial at all. She passed no comment on the other case at all.’
“Following this testimony I requested Mr. Karlsen to produce Mrs, Young, which he did, and her testimony was taken on December 29, 1939. When she appeared she was quite agitated and wept considerably. Notwithstanding this her answers, it seemed to me, were direct and honest. Her only explanation of her failure to reveal her husband’s accident was, ‘It just went out of my mind. ’ When her attention was called to the specific questions read to her from the record, she said she remembered the questions, and when asked why she did not answer she said, ‘I just didn’t, that is all.’ This answer in the cold record may appear to have been said defiantly, but that does not reveal the true demeanor of the witness, which was rather that of a deeply perplexed and disturbed woman. When cross-examined by counsel, she said: ‘Q. Yes, when you were questioned whether, as to whether there were any previous accidents, didn’t it occur to you that your husband had been in this accident? A. No, not just then. Maybe because I wanted to get on the jury, I don’t know.’
“Having had occasion in recent months to observe women jurors I can understand the full import of her answers. To women the opportunity to serve on a jury is not only a duty to be performed conscientiously, but also an exciting adventure. Most of them are eager to get to actual deliberation and decision of a case. To them it has not yet become a boresome and burdensome function to be performed by the other fellow. I have also observed that it often takes a little courage for a juror to speak up when addressed by counsel. There was little excuse for Mrs. Young’s not revealing the fact of her husband’s accident, but I am convinced from her demeanor on the witness stand and from the candor and honesty of her answers, in spite of her perturbation, that she was a conscientious and unprejudiced juror.
“In coming to the conclusion to overrule the motion for a new trial on this point, I have followed the wise and practical rule laid down by the Appellate Court in Maher v. New York, Chicago and St. Louis Railroad Company, 290 Ill. [App.] 267, page 275, where it is said: (Here follows an excerpt from the opinion in that case.)
“Two other points were made by the defendant, one relating to the instruction in which it is said that the number of witnesses is a factor to be considered in determining the weight of the evidence. While the instruction is admittedly correct, counsel for defendant argued that this point was overemphasized. I do not think so. The other point made by the defendant is that the verdict is excessive. On the theory of the defendant’s case that is quite true, but on the theory of the plaintiff’s case, which there is ample evidence to support, the verdict is not excessive.
“The motion for new trial is overruled.”

The juror, Young, was examined as to happenings during the deliberations of the jury. Questioned by the court, she testified that all of the jurors voted guilty upon the first ballot but that considerable time was taken up in reaching a verdict as to the amount of the damages. Some thought $15,000 should be awarded; some, $10,000; some, $5,000. She thought that $5,000 was the proper amount and so voted. She further testified that the fact that her husband had been injured did not affect her verdict in the instant case. It appeared at the hearing that the case of the juror’s husband was settled by an agreement between the parties, and an agreed judgment for $500 was entered. It must be noted that defendants do not contend here that the verdict was the result of passion and prejudice, nor that the verdict is manifestly against the weight of the evidence, nor that the damages awarded are excessive. Indeed, they concede in their brief that if the jury believed plaintiff’s witnesses the verdict was justified. The trial court, in an earnest effort to ascertain all of the facts and circumstances bearing upon the major contention of defendants, interrogated the juror as to how the jury stood upon the question of the guilt or innocence of defendants, and she testified that when they first went into the jury room all of the jurors voted guilty. Defendants had abundant time and opportunity to contradict this testimony, but they failed to do so. The trial court, in his opinion, states: “I am convinced from her demeanor on the witness stand and from the candor and honesty of her answers, in spite of her perturbation, that she was a conscientious and unprejudiced juror. ’ ’ He saw and studied the woman during the hearing and had a better opportunity than we have to pass upon the instant question. We are satisfied that we could not justly disturb the trial court’s finding. In Raub v. Carpenter, 187 U. S. 159, supra, cited in Maher v. New York, C. & St. L. R. Co., 290 Ill. App. 267, supra, the Supreme Court of the United States held that the matter was within the discretion of the trial court. Our Supreme Court, in People v. Beacham, 358 Ill. 373, supra, also placed reliance upon the judgment of the trial court. If juror Young had stated upon her voir dire that her husband had had a case against the City of Chicago which was settled by agreement that fact would not even tend to disqualify her as a juror, and all judges who have had experience in the trial of personal injury cases know that it is not uncommon for the defendants in such cases to accept veniremen whose relatives had been plaintiffs in personal injury cases, especially where the case was settled. Defendants did not see fit to file a motion for a new trial until nine days after the entry of judgment. It is clear that the trial court approved the verdict of the jury. The instant case was well tried and the absence of errors in the record that are usually assigned in cases of this character has forced counsel for defendants to place undue importance upon the conduct of juror Young.

From the opinion of the trial judge it appears that upon the motion for a new trial only three points were made: (1) as to the juror, Young; (2) as to an instruction that the number of witnesses is a factor to be considered in determining the weight of the evidence, and (3) that the amount of the verdict is excessive. Point (3) has been abandoned by defendants. Defendants now complain that the trial court erred in giving plaintiff’s instruction two to the jury. Upon the motion for a new trial defendants made no point as to this instruction. The instruction is not subject to the criticism now made, that it assumed that plaintiff was on the street where he could be seen as the truck approached.

Defendants next contend that the court erred in giving plaintiff’s instruction five, which reads as follows: “The plaintiff is not bound to prove his case beyond a reasonable doubt, but is only required to prove it by a preponderance of the evidence.” Upon the motion for a new trial defendants made no complaint as to this instruction, and as they are not contending here that the verdict is against the manifest weight of the evidence we are unable to see why they now complain of the instruction. It has been repeatedly held that the instruction is a proper one. See Pierson v. Lyon & Healy, 243 Ill. 370, 378, and cases therein cited. See, also, Peterson v. Chicago & Oak Park Elevated R. Co., 176 Ill. App. 218, 229, and cases therein cited; Jones v. Esenberg, 299 Ill. App. 551, 556; and Murphy v. Brichler, 305 Ill. App. 6, 13.

Defendants next contend that the court erred in giving plaintiff’s instruction six, which reads as follows : ‘ ‘ The jury are further instructed that the number of credible and unimpeached witnesses, if any, testifying on the one side or the other of a disputed point is a proper element for the jury to consider in cownsction with all other facts and circumstances in evidence in determining where lies the preponderance of the evidence.” (Italics onrs.) Defendants made a complaint of this instruction upon the motion for a new trial. Again we repeat that defendants do not complain that the verdict is against the weight of the evidence, and, therefore, there is no point to the instant complaint. Moreover, the trial court, at the instance of defendants, gave a long instruction which told the jury that “the preponderance of the evidence in a case is not necessarily determined alone by the number of witnesses testifying to a particular fact or state of facts,” and which also told the jury the various elements that the jury might take into consideration in determining the credibility of witnesses and the weight that should he attached to their testimony. There is no merit in the instant contention.

Defendants next contend that the court erred in giving plaintiff’s instruction 7, which reads as follows : ‘1 The court instructs the jury that if they find from the evidence that the defendants, at the time and just prior to the accident in question were operating the truck at a rate of speed which was greater than was reasonable and proper, having regard to the traffic and use of the way, or so as to endanger the life and limb or injure the property of any person, and that in so doing they were guilty of negligence, and as a direct result thereof the plaintiff was injured, their verdict should be for the plaintiff, provided they believe from the evidence that at the time and immediately prior thereto, plaintiff was in the exercise of that degree of care and caution required of him, as set forth in these instructions.” (Italics ours.) Defendants made no point as to this instruction in their argument before the trial court on the motion for a new trial, but they now contend that the instruction assumes that the truck at the time and just prior to the accident was being operated at a speed that was unreasonable. The instruction plainly leaves it to the jury to determine from the evidence whether or not the speed of defendants’ truck was unreasonable.

The last contention raised by defendants is that the court erred in refusing to give to the jury defendants’ instruction 1, which reads as follows: “While the plaintiff is only charged with using such care for his own safety as an ordinarily reasonable child of his age, intelligence, experience and capacity would use under like or similar circumstances, still if you believe from the evidence that the plaintiff suddenly ran out from in front of a parked car, and that his doing so, if he did, was the sole proximate cause of his injury and that the conduct on the part of the driver of the truck was not a proximate cause of the injury but merely an occasion of it, then you are instructed that, regardless of whether or not you find that the act of the plaintiff in so running out, if he did, was negligence, you should find that the injury was proximately caused by the conduct of the plaintiff and that it was not proximately caused by the defendants and you should return your verdict for the defendants.” Defendants did not complain of the refusal of this instruction upon the oral argument for a new trial before the trial court. They cite no authority in support of the instruction, which directs a verdict. It is subject to a number of serious criticisms. It does not hold the driver of the truck to any degree of care; nor does it permit the jury to pass upon the question as to whether or not the conduct of the driver at the time of the accident and just prior thereto constituted negligence ; and it directs a verdict for defendants even though the jury should find that the act of plaintiff in suddenly running out in front of a parked car was not negligence, provided that the jury believed from the evidence that plaintiff “suddenly ran out from in front of a parked car.” Defendants state that they make no claim that the boy was guilty of contributory negligence, but they contend that if he sud-

denly ran ont from in front of a parked car the driver of defendants’ truck would not be negligent in striking the child; in other words, that non-negligence of the driver would follow as a matter of law from the said conduct of the boy, and the jury would have, therefore, no right to pass upon the conduct of the driver. It is hardly necessary to state that defendants misconceive the law that bears upon the facts of the instant case. Plaintiff was eight years of age at the time of the accident, which happened in broad daylight, upon 18th street, a busy thoroughfare, on a beautiful day. The street pavement was dry. There are east-bound and west-bound street car tracks on 18th street and there is an elevated railroad station upon the south side of the street. There is a large department store on the street that' extends from the elevated station eastward to the corner of Paulina street. There is a “kind of crossing there across 18th street” in front of the elevated station. There were automobiles parked on the south side of the street. From the south curb of the street to the south rail of the east-bound tracks is about ten feet. The evidence for plaintiff shows that the boy stepped into the street in front of the elevated station, looked to the east and west and then walked northward toward the street car tracks, and that he was in the street car tracks when he was struck; that when the boy stepped out in the street he “ivas about three feet from the car on his left and an equal distance from the car on his right.” One witness for plaintiff testified that when the boy reached the street car track defendants’ truck was then seventy-five or eighty-five feet to the west of the boy and coming eastward; that the truck was going about thirty miles an hour; that the boy was in the street car tracks when he was struck. Another witness for plaintiff testified that when the boy was out in the street “looking,” the truck was then “eighty, ninety feet away from the boy”; that the boy stopped and backed up a little bit before he was struck. One witness for plaintiff testified that while the boy was going two feet the truck went seventy or eighty feet; that after the accident the boy was “laying on the street car tracks,” “about twenty-five or thirty feet away from the place where he was hit”; that the boy “flew in the air” when he was struck. The only witness who testified for defendants as to the accident was the driver of the truck. He testified that “there was no traffic at all on the street” at the time; that he was familiar with the neighborhood; that as he proceeded east on 18th street he was straddling the south rail on the east-bound track; that as he got in the block where the accident happened he “was going in the neighborhood of twenty to twenty-two miles an hour”; that there was no west-bound traffic at the time; that there were cars parked along the the south curb of 18th street; that the cars were parked so that there was “room so in case a man had to pull out he could pull out without pushing the fellow up or in back”; that he first saw the little boy that was injured when he “passed the left front fender of the automobile, running across the street from the south to the north”; that when he first saw the boy he was about twelve feet in front of the truck; that when he noticed the boy was passing the fender “I applied my brakes and killed my motor at the same time”; that he was going about eight miles an hour when he hit the boy; that when the boy “got within a foot and a half of the north-bound rail, he applied a brake to his foot and backed up right away”; that the boy backed up “about two and one-half steps” before he was struck; that the street was dry and he could stop his truck in approximately fifteen feet; that when the boy backed up he turned the truck to the left to avoid hitting him; that after the accident the boy was lying between the rails of the east-bound car tracks; “he was lying in the same direction the rails were running.” The driver admitted that in a deposition he had made he stated that he was going between twenty and twenty-five miles an hour as he approached the place of the accident. It is clear from his testimony that he did not use reasonable and ordinary care to avoid the accident after he first saw the child, and the jury were fully warranted in finding from all of the evidence that the accident was the result of gross negligence upon the part of the driver. . . a person operating a motor vehicle along the streets of a city is bound to recognize the fact that children will be found playing in the street and that they may sometimes attempt to cross the street unmindful of its dangers, and the driver owes the children the duty of reasonable and ordinary care under the circumstances.” (Morrison v. Flowers, 308 Ill. 189, 196.) The court did not err in refusing to give the instruction in question.

No honest, intelligent jury could have found a verdict for defendants under the evidence. Indeed, as we read the record the major defense interposed upon the trial related to the extent of the injuries the child sustained, and defendants have now abandoned their claim that the damages are excessive.

The judgment of the superior court of Cook county should be and it is affirmed.

Judgment affirmed.

Sullivan and Friend, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Scanlan

license: Public Domain

text:
    Patrick McArdle, Appellee, v. Great American Indemnity Company, Appellant.
    Gen. No. 41,778.
    Heard in the second division of this court for the first district at the June term, 1941.
    Opinion filed May 14, 1942.
    Rehearing denied June 5, 1942.
    Payton J. Tuohy, of Chicago, for appellant.
    Harry I. Parsons and Edward J. McArdle, Jr., both of Chicago, for appellee; Edward J. McArdle, Jr., of Chicago of counsel.
   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

An action brought by plaintiff for the recovery of a judgment entered in an attorney’s lien adjudication proceeding against Daniel Brady, defendant’s assured, upon a policy of liability insurance issued to Brady by defendant. In a trial by the court the issues were found in favor of plaintiff and against defendant in the sum of $1,495. Defendant appeals from a judgment entered upon the finding.

The amended complaint alleges:

“1. The plaintiff, Patrick L. MeArdle, says that he is now and for many years past, has been a duly qualified licensed Attorney at Law, practicing in the City of Chicago, County of Cook and State of Illinois.
“2, That on December 16, 1930, he was employed by Marcella Fricot, now Mrs. Daniel Brady, to prosecute a claim for damages against Daniel Brady for personal injuries, caused by said Daniel Brady’s operation of his automobile.
“3. That said Daniel Brady (now the husband of Marcella Fricot) carried, in the Great American Indemnity Company, a certain public liability policy of insurance, insuring him against loss due to the operation of his said automobile.
“4. That attached hereto and marked Exhibit ‘A’ is a photo static copy of said policy.
“5. That suit was filed in the Circuit Court of Cook County, in case No. B-218800, by said Marcella Fricot against said Daniel Brady; that said suit was defended by said defendant and after the same had been reached for trial, on or about February 11, '1932, defendant compromised and settled said claim of Marcella Fricot v. Daniel Brady for . . . $3,250.00.
“6. That after the settlement of said suit as aforesaid, a petition was filed by plaintiff in the Circuit Court of Cook County in the same suit, ... to adjudicate attorney’s fees and enforce lien. Plaintiff claiming the sum of one-third of said settlement as his fee under and by virtue of the Attorneys’ Lien law of the State of Illinois, and the aforesaid agreement of said Marcella Fricot.
“7. That a hearing was had on said petition . . . and after a full hearing of evidence, both for and against said petition, the Court found that the allegations of said petition were sustained, that petitioner (plaintiff herein) was entitled to his lien, and, on October 21, 1932, entered judgment against said Daniel Brady for . . -. $1,083.33, ordered that an execution issue for said sum and costs of suit, and in favor of this plaintiff, for his attorney’s fees under his said petition.
“8. That said judgment was carried on writ of error by . . . Brady to the Appellate Court of the First District and the judgment of the Circuit Court was affirmed.
“9. That thereafter . . . Brady sued out a writ of error to the Appellate Court, and said writ of error was dismissed by the Supreme Court, on or about October 15, 1934.
“10. That on January 29,1934, an execution issued out of the clerk’s office of said Circuit Court, was delivered to the Sheriff of Cook County for execution against . . . Brady; that it was duly served on . . . Brady; that on the 3rd day of May, 1934, it was returned to the clerk’s office of said Circuit Court with the return ‘No property found, no part satisfied.’
“11. That under the terms of said policy of insurance, the defendant agreed ‘to pay all sums which the assured (Brady) shall become liable to pay as damages imposed by law for bodily injuries. ’
“12. That said policy contains the following provisions :
“ ‘Bankruptcy or insolvency of the assured shall not relieve the Company of any of its obligations hereunder. If any person . . . shall obtain final judgment against the assured because of any such injuries, and execution thereon is returned unsatisfied by reason of bankruptcy, insolvency or any other cause, or if such judgment is not satisfied within 30 days after it is rendered, then such person . . . may proceed against the Company to recover the amount of judgment either at law or in equity, but not exceeding the limit of this policy applicable thereto. ’
“13. That no part of said judgment has been paid by said Daniel Brady; that the amount of the said policy limit is $5,000.00.
“14. That the defendant has heretofore been frequently requested to pay plaintiff the amount of said judgment of $1,083.33 and costs, but it, the defendant has hitherto failed and refused to pay said judgment or any part thereof.
“Plaintiff asks judgment for $1,083.33 with interest at five per cent from the date of the entry of judgment for said sum and costs, also for costs of trials in the Appellate and Supreme Courts.”

Attached to the complaint is a copy of the policy issued by defendant to Brady. The amended complaint was amended by inserting before paragraph 6 the following :

‘ ‘ 5-a. That a notice of lien was duly served according to law upon . . . Brady, and that at the time of the settlement of said case and before payment was made, the said defendant was advised and had full knowledge of the fact that a notice of lien had so been served upon Brady; that said notice of lien was transmitted by Brady to the defendant, The Great American Indemnity Company.”

The verified second amended answer of defendant admits the facts alleged in paragraphs 1, 2, 3, 4, 5, 5-a, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the amended complaint as amended; alleges that it had no opportunity to defend or contest the proceedings, and that because of the failure of Brady to comply with the terms of the policy, it is not liable or otherwise bound by any judgment entered against Brady; that under the terms of its policy its liability is limited “to pay all sums which the assured shall become liable to pay as damages imposed by law for bodily injuries, including death at any time resulting therefrom to any person,” to defend on behalf of the assured any claims or suits brought against him on account of an accident, and to pay all costs taxed against the assured in any legal proceedings defended by the company, together with expenses of investigation, interest on the judgment, and expenses incurred by the assured for immediate medical relief at the time of the injury; that inasmuch as the plaintiff’s claim is not covered by any of the provisions of its policy, there can be no duty or liability on the part of the defendant to pay the same. Plaintiff filed the following reply to defendant’s said answer: “That the defendant, prior to the filing and before the hearing on the petition to enforce the said lien, was notified of said proceeding and that during the hearing upon said petition it was notified by plaintiff of the pendency of said petition, and that it waived the service of any process in that proceeding if any were necessary. Plaintiff says that there is no requirement of the law requiring plaintiff to serve any process or notice on the defendant in such a proceeding, and that it is immaterial whether Daniel Brady served or gave Notice in writing or by any other means to the defendant of that proceeding. Plaintiff states that at all times during the pendency of said proceeding to establish the lien defendant knew of said proceedings.”

Defendant contends: “A. The defendant cannot be liable to the plaintiff under the terms of the policy of insurance.” “B. The Insurer (defendant) cannot be liable to a third party for any claim not arising as a result of ‘ damages imposed by law for bodily injuries.’ ”

Plaintiff contends: “I. A. By virtue of Attorney’s lien Act, and plaintiff’s compliance with the provisions thereof, the plaintiff became joint owner with or assignee, by operation of law of the proceeds of’ the settlement made with Marcella Fricot. B. The attorney’s lien law gave to plaintiff an effective remedy to enforce his lien and obtain judgment. C. Plaintiff, as the assignee, by virtue of the Attorney’s lien law, and compliance therewith succeeded to the rights and remedies of the claimant Marcella Fricot to enforce collection of his part of the settlement made. D. Clause E of defendant’s policy of insurance gave said Marcella Fricot the right to sue and recover against defendant and plaintiff succeeded to that right. II. Defendant is liable to plaintiff under the terms of its policy of insurance. A. Plaintiff’s judgment against defendant’s assured, entered under the authority of the Attorney’s Lien Act is in effect a judgment for Marcella Fricot for the use of plaintiff. B. Clause E gave Marcella Fricot the right to sue defendant, and plaintiff succeeded to that right. III. A. Plaintiff’s judgment is for a claim arising as a result of damages imposed by law for bodily injuries. B. Third party may sue or garnishee the Insurance Co.”

It appears in evidence that defendant obtained from Mrs. Fricot a bond securing and indemnifying it against plaintiff’s lien before it compromised and settled the case.

The Attorney’s Lien Act (Ill. Rev. Stat. 1939, ch. 13, par. 14 [Jones Ill. Stats. Ann. 9.13]) provides:

“That attorneys at law shall have a lien upon all claims, demands and causes of action, including all claims for unliquidated damages, which may be placed in their hands by their clients for suit or collection, or upon which suit or action has been instituted, for the amount of ,any fee which may have been agreed upon by and between such attorneys and their clients . . . . Provided, however, such attorneys shall serve notice in writing, which service may be made by registered mail, upon the party against whom their clients may have such suits, claims or causes of action, claiming such lien and stating therein the interest they have in such suits, claims, demands or causes of action, and such lien shall attach to any verdict, judgment or decree entered and to any money or property which may be recovered, on account of such suits, claims, demands or causes of action, from and after the time of service of the aforesaid notice.”

In Baker v. Baker, 258 Ill. 418, the court, in speaking of the effect of service of notice under the Attorney’s Lien Act, stated (p. 421): “By serving the notice claiming a lien the attorney in effect becomes a joint claimant with his client in any judgment or decree that may be rendered or in the proceeds of any settlement that may be made by the client, and to the extent of the amount of his fee has the same interest in such proceeds, judgment or decree as his client and is entitled to his pro rata share thereof. In short, when the notice claiming a lien is served on the defendant or debtor under this statute it has the effect of an assignment of an interest in any judgment or decree that may be rendered or in the proceeds of any settlement that may be made by the client, and is such an assignment that the defendant or debtor is bound to respect. This creates a new and a substantial right in favor of the attorney and divests the client of substantial rights that he theretofore possessed.”

In Dreyfuss v. Freud, 209 Ill. App. 345, 346, the court held that where notice has been duly served by an attorney as provided by the Attorney’s Lien Act the attorney becomes a part owner of the decree in favor of the client and stands in the same position as if the client had assigned him an interest in the decree. (See, also, Tulka v. Chicago City Ry. Co., 259 Ill. App. 234, 237.)

Defendant’s policy of insurance provides, in clause E:

“Bankruptcy or insolvency of the Assured shall not relieve the Company of any of its obligations hereunder. If any person or his legal representatives shall obtain final judgment against the Assured because of any such injuries, and execution thereon is returned unsatisfied by reason of bankruptcy, insolvency or any other cause, or if such judgment is not satisfied within thirty days after it is rendered, then such person or his legal representatives may proceed against the Company to recover the amount of such judgment, either at law or in equity, but not exceeding the limit of this Policy applicable thereto.”

Defendant makes two points in support of its contention that the instant judgment cannot be sustained:

(1) “No judgment was ever obtained against Daniel Brady by Marcella Fricot, the plaintiff in the personal injury case; therefore, Marcella Fricot never acquired any rights against the insurer. If Marcella Fricot had no rights against the insurer, the plaintiff, as assignee from her under his attorney’s contract and lien notice, could acquire no greater rights than she had. Consequently, although the plaintiff holds a judgment against Daniel Brady, the assured, he can have no right or action against the defendant, as insurer.”

(2) “The fact that the plaintiff’s claim allegedly arose out of bodily injury to Fricot is not sufficient to bring it within the terms of the policy in the instant case.” Point (1) amounts to this, that defendant, by craftily avoiding the entry of a formal judgment in the Fricot case, could destroy plaintiff’s lien. If this contention were sustained it would allow parties to nullify the Attorney’s Lien Act. In this connection it is well to remember that our Supreme Court, in Standidge v. Chicago Rgs. Co., 254 Ill. 524, held (pp. 534, 535, 536): ‘ ‘ Clearly it was the intention of the legislature to give attorneys a lien from and after the service of notice on the defendant, which would protect them against any settlements that might thereafter be made, regardless of whether the suit had been commenced, was pending or had been finally determined by the rendition of a judgment. The money paid by appellant to appellee’s client in settlement of this claim was money ‘recovered,’ within the meaning of the statute. . . . A settlement may be made with a claimant, under this statute, to the same extent and with like effect as it could have been made before the statute was enacted, the only difference being that under the statute a party, in settling with an attorney’s client, must take into account his liability to the attorney for whatever amount of fees would accrue under his contract at the time of the settlement.” Part of our answer to point (2) also applies to point (1).

Defendant’s argument in support of point (2) is that plaintiff’s claim, under the law, is a separate and distinct element of damages from the damages that flow from bodily injuries. That there is no merit in point (2) seems plain to us. Under the terms of its policy defendant agreed to pay all sums which the assured under the policy should become liable to pay as damages imposed by law for bodily injuries. Defendant confessed its liability under the policy to Brady, the assured, by defending the Fricot suit against him, and by compromising and settling the claim for $3,250, thereby admitting its liability under the policy for that amount for damages imposed by ^aw for bodily injuries. Plaintiff, to the extent of the amount of his fees, had the same interest in the proceeds of the settlement as Mrs. Fricot. The attorney’s lien proceeding was a part of the Fricot v. Brady suit, and in that proceeding plaintiff demanded his one-third of the amount of the settlement made by defendant for damages imposed by law for bodily injuries to Mrs. Fricot. Plaintiff’s judgment against Brady was, in effect, for his part of the damages that arose as a result of said injuries. His claim against defendant in the instant case is, in effect, a claim for his part of the damages that arose as the result of said injuries. Plaintiff acquired his part of the settlement by operation of law, and defendant is liable to plaintiff for that part. In our judgment defendant is in no position to raise points (1) and (2).

We have carefully considered the next contention of defendant, that it cannot be held liable to plaintiff because its assured failed to give it written notice of the filing by plaintiff of his petition under the Attorney’s Lien Act, and we find it without merit. In connection with this contention it will be noted that defendant admitted that it handled the defense of the Fricot v. Brady case and compromised and settled the same, and that before it compromised' and settled the case it obtained from Mrs. Fricot a bond securing and indemnifying it against plaintiff’s lien. In view of the facts and circumstances bearing upon this contention it is somewhat surprising that defendant should make it. We hold that defendant is liable to plaintiff.

Defendant, wilfully disregarding plaintiff’s rights, compromised and settled the claim of Mrs. Fricot against Brady, on February 11, 1932. More than ten years have elapsed since that time, during which period defendant has bitterly fought the several suits that plaintiff was compelled to bring to obtain his plain rights. We feel impelled to say that it is time that this litigation should end.

The judgment of the circuit court of Cook county should be and it is affirmed.

Judgment affirmed.

Sullivan and Friend, JJ., concur.


author: Mr. Justice Friend

text:
    Peter Rajek, Administrator of Estate of Felix Janus, Deceased, Appellant, v. Walter J. Cummings et al., Receivers, Trading as Chicago Surface Lines, Appellees.
    Gen. No. 41,862.
    Heard in the second division of this court foj the first district at the October term, 1941.
    Opinion filed May 14, 1942.
    Carl F. Obrzut and Julius H. Selinger, both of Chicago, for appellant.

      Frank L. Kriete, Charles E. Green and Arthur J. Donovan, all of Chicago, for appellees; John R. Guilliams, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Felix Janus was killed at 41st street and Kedzie avenue in Chicago while crossing the tracks in front of a southbound Kedzie avenue street car on the evening of July 9, 1938. His administrator brought suit against Guy A. Richardson et al., alleging negligence and specifying wilful and wanton conduct on the part of defendants (1) in increasing the speed of the car while deceased was crossing the intersection, (2) in operating the car at a speed in excess of 20 miles an hour, (3) in failing to stop the car at the intersection, and (4) in refusing to give deceased the right of way and to permit him to complete the crossing of the intersection. Walter J. Cummings et al. were later substituted as receivers for Chicago Surface Lines, and the court ordered the trial to proceed against them as defendants. At the close of plaintiff’s case the jury was instructed to return a verdict finding defendants not guilty, and after overruling an oral motion for a new trial, the court entered judgment on the verdict, from which plaintiff appeals.

There is substantially no dispute as to the salient facts. The deceased was in his late forties, in good health, of sound vision and hearing, and familiar with the surroundings. Kedzie avenue, south of 39th street, is a straight level street about 42 feet wide, with car tracks running north and south, and not intersected on the west at any point between 39th and 42nd streets, where the Crane Company plant is located. This plant is surrounded by an iron fence, with a driveway leading into it at 41st street. At the entrance to this driveway there are two concrete posts about 14 feet high, with lights at the top which illumínate the grounds for a surrounding distance of about 20 feet and halfway across Kedzie avenue. There is no evidence that the plant was in operation on the evening of the accident or that there were any lights on the premises except those mounted on the two standards mentioned. On the east side of Kedzie avenue at 41st street there are vacant corner lots and several stores to the north of the intersection. The southernmost of these is a tavern 75 feet north of 41st street, which has a neon sign that throws light up to about 15 feet from the corner.

Deceased was seen walking south along the east side of Kedzie avenue at about 9:30 in the evening. At the northeast corner of 41st street, directly opposite the entrance to the Crane Company plant, he turned west and proceeded to cross the tracks. One of defendants’ street cars, fully illuminated and making sufficient noise to interrupt the conversation of two witnesses sitting in front of the tavern, was proceeding south at the usual speed of 20 to 22 miles an hour. There were no passengers waiting to board the car in front of the Crane plant and none alighted at that point. That deceased saw and heard the car approaching was indicated by the only eyewitness to the accident, one Chester Sutalski, who was standing on the front platform near the motorman. He testified that he first saw deceased when the car was at about 40th place, walking across tlie street toward the Crane Company lights. When he got to the middle of the northbound track he was facing the street car, put up his hand and proceeded to cross the southbound rails at approximately 3 miles an hour, without quickening his pace and without making any effort to escape being hit by the car which he undoubtedly saw. He was struck by the right front end. At the moment of the impact the motorman turned around and said to Sutalski, “Where did he come from? I didn’t see him.”

Although plaintiff alleged negligence, which would cast upon him the burden of proving that deceased was in the exercise of due care for his own safety, he sought to overcome this burden by contending that defendants were guilty of wilful and wanton conduct, predicated upon the failure of the motorman to see deceased as he was crossing the track, and his counsel argue that “these facts clearly and legitimately establish the defendants’ utter inattention amounting to wilfulness and recklessness.” In other words, the uncontroverted testimony having clearly established the fact that the motorman did not see deceased before the impact, plaintiff is driven to the position that the motorman’s failure to see him crossing the street was the result of gross inattention amounting to wilfulness and recklessness. Plaintiff’s counsel, while refusing to concede that deceased was not in the exercise of due care for his own safety, nevertheless predicate their case “on the theory that defendants’ conduct was so grossly negligent in the operation of the street car that it amounted to willful and wanton conduct of their part,” and the sole point in their brief is directed to the proposition that the proof of contributory negligence on the part of deceased, as shown by plaintiff’s witnesses, does not constitute a defense to the suit. There are many cases in this State wherein the courts, under similar circumstances, have held that adults of ordinary prudence are or should be capable of judging whether there is a threat of danger from an approaching street car, and that a reasonably prudent person in the same circumstances, would in deference to his own personal safety forego his technical right to cross the street until it was reasonably safe to do so. Russell v. Richardson, 308 Ill. App. 11, and cases cited therein. The courts are likewise in accord in applying the rule of law relating to the attempt of persons to pass in front of a moving street car. In Deming v. Chicago Rys. Co., 234 Ill. App. 642 (Abst.), the court said: “"Where persons have been injured acting upon the expectation that a car would stop because it was signaled or was slowing down, it has been held under varying circumstances that it was negligence to act upon such assumption. [Citing numerous cases.]” From these decisions and the applicable facts, as to which there is no dispute, the court in the case at bar was justified in concluding that plaintiff had failed to assume the burden cast upon him of proving that deceased' was in the exercise of due care for his own safety at and immediately preceding the time of the accident.

There remains only the question whether the failure of the motorman to see deceased amounted to such wilful and wanton conduct as to relieve plaintiff of the burden of proving that his intestate exercised due care. Obviously, since the motorman did not see deceased at any time before the collision, there was no necessity for slowing down or stopping the car at the intersection, since no passengers were taken on or discharged at that point. Moreover, 41st street does not intersect Kedzie avenue on the west and therefore the motorman was not obliged “to exercise a greater degree of care and watchfulness” at that point as he would have been at a street intersection or crossing. (Heidenreich v. Bremner, 260 Ill. 439.) Wilfulness imports knowledge of the facts, and without knowledge which gives rise to a duty, it cannot fairly be said that a failure to perform such duty is wilful and wanton, even though the want of knowledge may be due to inattention or negligence. The specific wilful and wanton conduct charged in the complaint, as set forth at the outset of this opinion as items (1) to (4) inclusive, does not include the failure of defendants’ motorman to see deceased before he was struck, and in fact plaintiff’s argument as to the wilfulness and wantonness of defendants is entirely unsupported by any allegation in the complaint specifically directed to the failure of the motorman to see deceased while he was crossing the tracks.

The cases relied on by plaintiff in support of his position are not pertinent to the circumstances of the case at bar. Under the facts in Perryman v. Chicago City Ry. Co., 242 Ill. 269, the court said if it had been reasonably apparent to the gripman that plaintiff intended to attempt to- cross the tracks in front of the approaching car, his failure to stop, under allegations charging reckless, careless and negligent conduct, would have rendered defendant liable. Likewise, in. Kelly v. Chicago City Ry. Co., 283 Ill. 640, the motorman had knowledge that plaintiff and others had stepped into the street for the purpose of taking the car and expected it to stop at that point, and his disregard of such knowledge, gathered while he was still some distance away, rendered defendant liable. Plaintiff cites no case wherein the courts have held that inattention or the failure to see a person about to cross the street, even though it may constitute negligence or carelessness, can be held to amount to wilfulness and recklessness, and we know of no such ruling.

In view of what has been said and because plaintiff failed to adduce any evidence from which the jury could have found that deceased was in the exercise of due care for his own safety, we think the court properly directed a verdict in favor of defendants. The judgment of the circuit court is therefore affirmed.

Judgment affirmed.

Scanlan, P. J., and Sullivan, J., concur.


text:
    Benjamin Joseph Bleiman, Appellee, v. City of Chicago, Appellant.
    Gen. No. 41,881.
    Heard in the second division of this court for the first district at the October term, 1941.
    Opinion filed May 14, 1942.
    Barnet Hodes, Corporation Counsel, for appellant; James A. Velde, Adam E. Patterson and Arthur A. Manning, Assistant Corporation Counsel, of counsel.
    Michael Siemanski, of Chicago, for appellee; C. it. Wachowski and M. C. Zacharias, both of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Plaintiff sued the City of Chicago to recover damages for injuries resulting from a fall on a driveway along Ogden avenue, leading from the street over the sidewalk into an adjacent garage. Judgment was entered on a verdict of the jury for $2,000, from which the city appeals.

There is substantially no dispute as to- the salient facts. The accident occurred September 20, 1939. Plaintiff was then employed as service and sales manager for an automobile concern. When only two years old he had been struck on the left knee with a rake, which subsequently caused the knee to become rigid. Later, in 1937, he slipped on a stairway and fractured his left leg above the knee. Leaving the hospital after the second injury, he walked with the aid of crutches and a caliper, which were subsequently discarded.

About three o’clock on the afternoon of the accident, while shopping for an automobile fender, plaintiff parked his car in front of 3452 Ogden avenue, Chicago, where a garage and repair shop was operated under the name “Fred and John.” There ivas a driveway from the large door of the shop to the street. At the street there were two steel plates resting on the curb and the pavement, where they were fastened. These plates had been installed in 1931 with the approval of the city authorities.

As the result of the injuries sustained in the two prior accidents, plaintiff was handicapped in walking by a stiff left leg which he was unable to bend at the knee. The day in question was clear; there was no ice, snow or water on the ground, no grease or oil on the sidewalk, and no holes or defects on the surface of the driveway from the curb to the garage. The plates extending over the curb and connecting the driveway with the street projected one-half inch above the curb and driveway. This is conceded in plaintiff’s brief and was admitted by his counsel on oral argument. As plaintiff walked from his car over the plates to the sidewalk,-he did not notice this projection because, as he says, it was not visible from the street side of the driveway. When he returned from the garage a few minutes later, he was looking straight ahead and did not notice the difference in level caused by the plate before he tripped on it. The heel of his left shoe caught the plate and he slipped down off the plate, which had a slight curve from usage, into the street, a drop of about 4 inches, sustaining a fracture to his left femur.

Whether plaintiff was in the exercise of due care for his own safety is a question on which, under the evidence, the verdict is conclusive. The controverted issue is whether the driveway, at the place where plaintiff fell, was reasonably safe as a matter of law. Under the well-settled rule in this State, a city can be found guilty of negligence only when the defect in a sidewalk is such that a reasonably prudent man should anticipate some danger to persons walking upon it. This rule was enunciated in the early ease of City of Aurora v. Pulfer, 56 Ill. 270, wherein the court held that “The obstructions or defects in the streets or sidewalks of a city, to make the corporation liable, must be of such a nature that they are in themselves dangerous, or such that a person, exercising ordinary prudence, can not avoid danger or injury in passing them; . . . .” Later, in City of Chicago v. Norton, 116 Ill. App. 570, the Appellate Court had occasion to review a judgment in favor of plaintiff for $5,000 for damages which she sustained by a fall upon a sidewalk on Randolph street in the business district of Chicago. One of two adjoining flagstones in the sidewalk was approximately 2% to 3 inches lower than the other, causing plaintiff’s fall and injury. The sole question there presented was whether the sidewalk at the place where plaintiff fell was reasonably safe. In discussing this question the Appellate Court cited City of Chicago v. Bixby, 84 Ill. 82. In that case one section of the sidewalk was 12 inches lower than the adjoining section. A step was placed at the intersection of these differences in level. Plaintiff, in passing from the higher section to the lower, fell and was injured. In reversing the judgment the court said that “The city was bound only to the exercise of reasonable prudence and diligence in making this step. It is not required to foresee and provide against every possible danger or accident that may occur. It is not an insurer against accidents, but is only required to keep its streets and sidewalks in a reasonably safe condition for the accommodation of travelers and pedestrians, and we are of opinion that the city has not failed in its duty in this instance. We think the evidence shows that the sidewalk was reasonably safe, and, if so, the city should not be held liable.” Another decision relied on by the Appellate Court in the Norton case is Beltz v. City of Yonkers, 148 N. Y. 67, 42 N. E. 401, which is frequently cited by the courts of this State. In that case plaintiff fell and broke her leg while walking along Broadway, one of the principal streets in the city. The sole question involved was whether the evidence was of such a character as to warrant a finding by the jury of negligence on the part of defendant. There was little, if any, conflict in the evidence. The sidewalk upon which plaintiff fell was 8 feet in width and constructed of stone flagging. The accident occurred at the joint where two of the flags were united. This left an uncovered depression in the center of the walk of the same depth as the thickness of the flags, vfliich was about 2% inches, and covering a surface area of about 2 feet in length by 7% inches in width. Plaintiff, while walking along this sidewalk, holding an umbrella over her head, stepped into the depression and fell, incurring the injury for which she sued. In discussing whether this evidence warranted a finding by the jury of negligence on the part of defendant, the court made the following observations: “With the greatest vigilance and the utmost foresight there will still be accidents for which no one, in any legal sense, is to blame. In many such cases, however, when an accident does happen the human mind can see and suggest many ways by which it could have been avoided. ... Of course a city cannot be required to keep streets in such condition as to insure the safety of travelers under all circumstances. The measure of its duty in this respect is reasonable care and it is liable only for neglect to perform this duty. There are very few, if any, streets or highways that are or can be kept so absolutely safe and perfect as to preclude the possibility of accidents, and whether in any case the municipality has done its duty must be determined by the situation and what men knew about it before and not after an accident. When the defect is of such a character that reasonable and prudent men may reasonably differ as to whether an accident could or should have been reasonably anticipated from its existence or not, then the case is generally one for the jury; but when, as in this case, the defect is so slight that no careful or prudent man would reasonably anticipate any danger from its existence but, still, an accident happens which could have been guarded against by the exercise of extraordinary care and foresight, the question of the 'defendant’s responsibility is one of law. . . . If the existence of such a defect is to be deemed evidence of negligence on the part of a city, then there is scarcely any street in any city that is reasonably safe within the rule, and when accidents occur the municipality must be treated, practically, as an insurer against accidents in its streets. The law does not prescribe a measure of duty so impossible of fulfillment or a rule of liability so unjust and severe. It imposes upon municipal corporations the duty of guarding against such dangers as can or ought to be anticipated or foreseen in the exercise of reasonable prudence and care. But when.an accident happens by reason of some slight defect from which danger was not reasonably to be anticipated, and which, according to common experience, was not likely to happen, it is not chargeable with negligence.” (Italics ours.)

We have quoted at length from the foregoing decision because the rule enunciated therein has been followed by the' courts of this State. In City of Chicago v. Norton, the Appellate Court, after citing Beltz v. City of Yonkers, said that “It is a matter of common knowledge that such differences in level may be found in almost every sidewalk in Chicago and a person walking along a sidewalk will step from a plank or stone three inches above the plank or stone upon which he steps without observing the difference in level. From such a difference in level, danger is not in common experience to be anticipated . . . ,” and concluded by holding that the city can be found guilty of negligence only when the defect in the sidewalk is such that a reasonably prudent man should anticipate some danger to persons walking thereon.

In White v. City of Belleville, 284 Ill. App. 322, the court, relying upon Belts v. City of Yonkers, held that a sidewalk depression from 16 to 19 inches in length and from 2% to 3% inches in depth, separated-from the remainder of the walk by a crevice one-fourth inch in width, did not render a municipality guilty of negligence as a matter of law, and reversed the cause without remanding it for a new trial. In the course of its opinion, the court, citing City of Chicago v. Bixby City of Chicago v. Norton, Powers v. City of East St. Louis, 161 Ill. App. 163, and various other decisions in addition to the Belts case, held it to be the settled law of this State “that a city is not an insurer against accidents; that it is not required to foresee and provide against every possible danger or accident that may occur but is only required to keep its streets and sidewalks in a reasonably safe condition for the accommodation of the public who use them.”

While it is true that the Supreme Court of this State, in White v. City of Belleville, 364 Ill. 577, reversed the Appellate Court because it had not remanded the cause for another trial, the reversal was predicated on the fact that the evidence as to the cause of the injury was conflicting since it showed, not a minor defect,* as assumed by the Appellate Court, but a crevice wider than one-fourth inch and a hole from 2 to 3% inches in depth, into which plaintiff testified that she had stepped and was thrown forward upon the street. The Supreme Court did not, however, overrule the well-established legal principle enunciated by the Appellate Court in White v. City of Belleville and other Illinois decisions.

In Powers v. City of East St. Louis, supra, plaintiff, while walking on a stone sidewalk, fell and broke her arm. Her suit was predicated on the charge that the city had constructed and maintained the walk in a dangerous and unsafe condition. There was some slight disparity in the evidence as to the difference in level on the walk where plaintiff fell; one witness had testified that the inner side of the upper walk was about 3 inches higher than the lower, and that the curb side was about 2 inches higher, while another witness said that, according to actual measurements, the differences were slightly less. The court brushed aside this conflict in the evidence as immaterial, and said the real question in the case.was whether the walk was built and maintained by the city in an unsafe and dangerous condition for pedestrians using reasonable care for their own safety, and concluded by saying: “We cannot hold that a walk of two smooth granitoid surfaces built upon two different levels, varying in height of from two to three inches and connected with smooth bevel surfaces, is proven to be unsafe and dangerous to travelers thereon using reasonable care for their own safety simply because some one has been injured by falling on it. . . . No reasonable mind, it seems to us, could foresee that an injury would happen to a traveler thereon while exercising reasonable care. To hold that this sidewalk as constructed was not reasonably safe within the meaning of the law would be virtually to hold that all walks should be smooth and level. This would require of cities perfection in the construction of their walks and would make them virtually insurers against all damages; but the law of this State does not require such exactions, and our courts have repeatedly refused to hold cities and villages liable in such cases as this one. When a city of village has exercised reasonable care and prudence to construct its sidewalks in a reasonably safe condition for travelers using reasonable care for their safety, it has done all the law required of it in that regard. It is not required to foresee and provide against every possible danger or accident that may occur.” (Citing City of Chicago v. Bixby, City of Chicago v. Norton, Belts v. City of Yonkers, supra.)

The foregoing cases enunciate the doctrine consistently adhered to by the courts of this State, and the underlying reasons therefor. The evidence in the case at bar is clear and not conflicting. The driveway upon which plaintiff fell was smooth and in good condition, and the only possible defect thereon was the one-half inch projection of the metal plates over the curb. This defect was so slight that no reasonable mind, it seems to us, could foresee that an injury would result to a traveler thereon while exercising reasonable care, and accordingly we adhere to the established rule in this State, as shown by the foregoing decisions, that the question of defendant’s liability is one of law. Plaintiff cites no decision holding that so slight a defect will render the city liable for negligence, and since the facts are not disputed, the court should have directed the jury to return a verdict in favor of defendant as a matter of law.-

The judgment of the circuit court is therefore reversed.

Judgment reversed.

Scanlan, P. J., and Sullivan, J., concur.


text:
    Otis Elevator Company, Appellee, v. American Surety Company of New York, Appellant.
    Gen. No. 41,914.
    Heard in the second division of this court for the first district at the October term, 1941.
    Opinion filed May 14, 1942.
    Adams, Hawxhurst, Hawley & White, Ralph R. Hawxhurst and Homer C. Dawson, all of Chicago, for appellants; Ralph R. Hawxhurst and Homer C. Dawson, both of Chicago, of counsel.

      Sims, Handy & McKnight, of Chicago, for appellee ; T. I. McKnight, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

In 1937 Eleanor D. Harris and others, hereinafter referred to as the Harris heirs, brought suit for the use of Otis Elevator Company, a subcontractor, to recover on a surety bond given to secure the performance of a construction contract entered into between the Harris heirs and the principal contractor, Good Construction Company. The bond and the contract which it secured were executed and were to be.performed in the State of Pennsylvania. The question presented on the pleadings was whether recovery could be had for the use of the subcontractor, although it was not a party to either the principal contract or the surety bond. The circuit court was of opinion that the contract was unenforceable under the law of Illinois and accordingly sustained defendant’s motion to strike the complaint as amended. We affirmed that judgment, but the cause was taken by the Supreme Court of Illinois on motion for leave to appeal and it was there held that under the decisions of Pennsylvania, which were held to be controlling, the complaint sufficiently stated a cause of action, and the judgment of the Appellate and Circuit Courts was reversed and the cause remanded with direction to overrule the motion to strike the complaint and to proceed with the hearing. (Harris v. American Surety Co., 372 Ill. 361.) Since the pleadings and facts are sufficiently set forth in the opinion of the Supreme Court, they need not here he repeated. When the cause was re-docketed in the circuit court and upon the pleadings as they then existed, Otis Elevator Company, substituted as plaintiff, moved for summary judgment, including interest, which was allowed in the aggregate of $4,261.58. Defendant, as surety on the bond, has taken an appeal.

The only issues of fact not settled by the pleadings relate to the execution and performance of plaintiff’s contract with Good Construction Company for an elevator in the Harris Building in McKeesport, Pennsylvania, and the amount which Good Construction Company had failed to pay plaintiff thereon. To establish the facts pertaining to these issues and in support of its motion for summary judgment, plaintiff presented to the court five supporting affidavits, copies of which were served on defendant’s counsel, together with notice of the motion, but without certain exhibits attached thereto. The exhibits which plaintiff failed to attach to the affidavits were a copy of contract between the Harris heirs and Good Construction Company, a copy of the specifications, a copy of contract between Otis Elevator Company and Good Construction Company, and a copy of the original drawings and plans of the building. With respect to these exhibits the notice of motion for summary judgment advised counsel for defendant that the contract between the Harris heirs and Good Construction Company which was omitted from the affidavits was identical with a copy as set forth in the complaint; that the copy of specifications was the same as that which had previously been delivered to defendant’s counsel in October 1940; that copy of the contract between Otis Elevator Company and Good Construction Company was set forth in the complaint; and that since no copy of the original drawings and plans was available for service upon defendant, a photostatic copy thereof was available for examination at any time in the office of plaintiff’s counsel.

It is urged as ground for reversal that plaintiff’s failure to attach copies of these exhibits to the affidavits presented in support of its motion for summary judgment was such a violation of rule 21 of the circuit court and rule 15 of the Supreme Court as to preclude the court from entering summary judgment in favor of plaintiff. The circuit court rule reads in part: ‘ ‘ Every motion for summary judgment shall be filed and notice thereof served upon the defendant, together with copies of the supporting affidavit or affidavits and of all other supporting papers, at least ten days before the hearing of such motion.” Rule 15 of the Supreme Court contains the following pertinent provision, which is similar to but more • elaborate than the circuit court rule: ‘ ‘ The affidavits in support of a motion for summary judgment shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the plaintiff’s cause of action is based; shall have attached thereto sworn or certified copies of all papers upon which plaintiff relies; shall not consist of conclusions but of such facts as would be admissible in evidence; and shall affirmatively show that the affiant if sworn as a witness, can testify competently thereto. ’ ’

Defendant’s counsel say that the proceeding for summary judgment is an extraordinary one and should, therefore, be strictly and literally followed. However, we find cases decided by reviewing courts since the act was adopted in 1933 which define the purpose of the procedure and the requirements of a party who seeks summary judgment thereunder. In Mee v. Marks, 304 Ill. App. 370, the court said that the purpose of the provision in the act was to determine whether there is an issue of fact for the jury and that the affidavits contemplated in the rules are designed to inform the court of the existence or nonexistence of an issue worthy of trial. In Spry v. Chicago Ry. Equipment Co., 298 Ill. App. 471, the court quoting from another decision, said: “ ‘ The primary purpose of section 57 of the Civil Practice Act is to enable the court to determine whether there is an issue of fact which should be tried. In Dwan v. Massarene, 192 N. Y. S. 577, the Appellate division of the Supreme Court, construing a similar section, said:

“ 1 “The defendant must show that he has a bona fide defense to the action, one which he may be able to establish. It must be a plausible ground of defense, something fairly arguable and of a substantial character. This he must show by affidavits or other proof.” ’
“The trial court, of course, must determine from the affidavits filed whether the defendant has interposed a sufficiently good defense to entitle it to defend, but where defendant’s affidavits present no substantial triable issues of fact, the court will grant the motion for a summary judgment.”

In Roberts v. Sauerman Bros., Inc., 300 Ill. App. 213, we find the following pertinent observations: “Defendant criticizes the affidavit supporting the motion for summary judgment because it does not have attached thereto all of the exhibits on which it relies. The complaint does have attached thereto as exhibits the various documents upon which it relies, and the affidavit for summary judgment adopts the essential exhibits attached to the complaint. It would be a supererogation to require plaintiff to attach copies of the exhibits already in the files.” (Italics óurs.) The same comments may appropriately be made with respect to defendant’s contention in the case at bar. The copies of the exhibits of which defendant complains were either attached to the complaint or were contained in the files in the clerk’s office or were available to defendant at any time. It frequently happens, as the court pointed out in Roberts v. Sauerman Bros.; Inc., that a party may be able to state a defense in a pleading and yet, when he is required to set up that defense in affidavits, it may become apparent that he has no defense and “If he has no defense, he is not entitled to a trial.”

An examination of the affidavits submitted by plaintiff in support of its motion for summary judgment leaves no doubt that plaintiff substantially complied with the Practice Act and the rules of the Circuit and Supreme Courts. That the two contracts were contained in the complaint, and that plaintiff’s counsel had several months before delivered a copy of the specifications to defendant, cannot well be disputed. The only exhibit which was not contained in the pleadings was the original drawings and plans, and as to these, plaintiff’s counsel stated in their notice to defendant that no copies were available but that the photostatic copy of the original was available for examination at any time in counsel’s office.

The primary purpose of affidavits, under summary judgment proceedings, is to inform the court of the existence or nonexistence of an issue worthy of trial, and the purpose of the rules is unquestionably to enable defendant to prepare affidavits of merits if he desires to dispute, under oath, any material facts therein. The affidavits presented and the copies of the exhibits already in the files were sufficient to enable the court to determine whether the surety company could defend the action, and to afford it an opportunity to dispute the material facts presented to the court by means of the affidavits.

The ground urged for reversal is a technical one, and a reversal and remandment would result in no benefit to defendant. In the course of the hearing on the motion for summary judgment the court on several occasions asked defendant’s counsel if they desired to file an affidavit of merits, saying that additional time would be granted for that purpose if desired. However, counsel advised the court that they did not desire to file any, and we think it may fairly be inferred from these circumstances that defendant had no defense on the merits.

The only other point urged by defendant is that the court erred in allowing interest on the bond at 6 per cent from August 30, 1929, the date when the money became due under the Otis Elevator contract. The Supreme Court of Illinois having determined that the law of Pennsylvania governs this case, the only question presented is when interest begins to accrue on contracts of this kind. We think Erie Trust Company Bank v. Employers’ Liability Assur. Corp., decided by the Supreme Court of Pennsylvania and reported in 322 Pa. 132, 185 Atl. 224, and cases cited therein, are decisive of this-question.

Plaintiff seeks an assessment of damages for unnecessary delay under sec. 23, ch. 33, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 48.075]. This request is denied.

We are of opinion that the summary judgment, which included interest on the principal sum, was properly entered and it is, therefore, affirmed.

Judgment affirmed.

Scanlan, P. J., and Sullivan, J., concur.


text:
    County of Cook of the State of Illinois, Appellant, v. Chicago Copper and Chemical Company, Appellee.
    Gen. No. 41,960.
    Heard in the second division of this court for the first district at the October term, 1941.
    Opinion filed May 14, 1942.

      Gerald R. Gorman, of Chicago, for appellant; John L. Lenihan, of Chicago, of counsel.
    Robert F. Dewey, of Chicago, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

The County of Cook instituted eminent domain proceedings by which it sought to acquire a portion of the property of the Chicago Copper & Chemical Company, in Blue Island, Illinois, for public use. Respondent filed a traverse and motion to dismiss the petition and the cause was thereafter dismissed as to it on motion of the county. On application for costs, expenses and attorneys’ fees, the court allowed respondent $1,000 for attorneys’ fees, $100 for services rendered by a real estate expert and $350 expenses incurred in the preparation of plans by a surveyor. No complaint is made as to the latter two items, but the county appeals from that part of the order awarding respondent $1,000 for legal services.

The petition for condemnation was filed August 1, 1939. Respondent thereafter appeared by Alice Greenacre and Richard J. Stevens, its attorneys, who on September 14, 1939 filed a traverse and motion to dismiss the petition, which denied that the premises sought to be acquired were necessary and desirable for the uses proposed; denied that petitioner had the lawful right to take or acquire the premises for the uses and purposes sought; denied that petitioner had made sufficient or any bona fide attempt to agree with respondent as to the compensation to be paid for its property; and moved to dismiss the petition for several reasons specifically stated in the motion.

Counsel who filed their appearance for respondent and who had prepared the traverse and motion to dismiss were subsequently released and November 4, 1939 Howard F. Bishop was retained because respondent desired to avail itself of a specialist in this type of litigation. Upon the termination of Miss Green-acre’s and Mr. Stevens’ services, they rendered a bill to respondent for professional services, representing 66 hours of time spent, for which respondent paid them $462, and an item of $52 for money expended, aggregating $514. Bishop entered his appearance in the proceeding December 14, 1939 and on that day his associate appeared in court on a motion for substitution of counsel and a change of venue, which was allowed. When the parties appeared before the court on that day Mr. Gorman, representing the county, stated to the court that “I have this morning advised counsel for the defendant here that the County proposes to dismiss it as to the party that this counsel represents,” and he suggested that the matter be postponed until February 1, 1940 to afford the county time to act on the proposal. Some discussion ensued as to whether the order for substitution of counsel ought to be entered at that time in view of the contemplated action of the county in dismissing the proceeding as to respondent, but the order for substitution was eventually allowed and entered and counsel then stipulated that no further expense would be incurred for legal services after that date. The petition was amended and respondent and the land which was sought to be taken from it were dismissed from the petition. In November 1940 the application for the allowance of costs, expenses and attorneys’ fees was filed and a hearing thereon was had in February 1941.

As the principal ground for reversal it is urged that where a petition to condemn has been dismissed, respondent is entitled to recover only such reasonable attorneys’ fees for services as were necessarily rendered in connection with the preparation of the appearance, the traverse and motion to- dismiss and for hearing and argument thereon, and it is argued that the court erred in allowing respondent’s counsel to go far beyond this scope by adducing evidence of services rendered in preparation of the cause for trial on its merits. The application for the allowance of costs, expenses and attorneys ’ fees in this proceeding is predicated on ch. 47, sec. 10 of the Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 109.255], which contains the following pertinent provision:

“Provided, That in case the petitioner shall dismiss said petition before the entry of such [judgment] order or shall fail to make payment of full compensation within the time named in such order, that then such court or judge shall, upon application of the defendants to said petition or either of them, make such order in such cause for the payment by the petitioner of all costs, expenses and reasonable attorney fees of such defendant or defendants paid or incurred by such defendant or defendants in defense of said petition, as upon the hearing of such application shall be right and just, and also for the payment of the taxable costs.”

The scope of the services for which respondent may claim fees is defined in the early case of Chicago & Southern Traction Co. v. Gaines, 129 Ill. App. 160, and respondent’s counsel cites no cases indicating that the limitations placed on the foregoing statute have since been extended by any court of review. The facts in that case are strikingly similar to the proceeding at bar. Respondents there had also filed motions to dismiss. Subsequently they sought recovery for their costs, expenses and attorneys’ fees, and their testimony with respect to the services rendered was not confined to the preparation of the appearance, motion to dismiss and for a hearing on the motion, but also included a study of the subject of consequential damages, a preparation of two cross petitions which were not filed, examination of title of their respective clients and other matters not contemplated by the statute. In discussing the scope of this testimony the court said:

“As appellees [respondents] all moved to dismiss the petition for lack of authority to condemn these lands, we are of opinion that they could not justly charge against the petitioner the expense of preparing for trial before the motions to dismiss had been heard and decided. ... we are of opinion that petitioner was only liable in this cause for attorney’s fees for preparing and filing the appearances of the several appellees and the several motions to dismiss the petition, and for such preparation as their several attorneys made for the hearing and argument of the motions to dismiss.” (Italics ours.)

In commenting upon the character of the testimony which had no direct relation to services rendered in filing respondents’ appearances, motions to dismiss and arguments thereon, the court observed that this evidence “bore no relation to the motion to dismiss” and said that “The real questions involved were what attorney’s fees had these several appellees paid, or what would they have to pay to their respective attorneys, for preparing and filing their appearances and their motions to dismiss, and for making such preparations to argue said motions as they did make before the dismissal, and were such attorney’s fees reasonable and just? These questions seem to have been lost sight of in putting in the proofs, which were almost wholly directed to a very general statement of the entire service rendered, without showing how much of that time and labor was spent in preparation for a hearing upon the motion to dismiss, and to the question what would be a customary charge for the entire service rendered.” On the authority of the foregoing decision there can be no doubt that the scope of the testimony offered by respondent’s counsel in the case at bar should have been limited by the court to services rendered for preparing and filing respondent’s appearance, preparing the traverse and motion to dismiss and such preparation as its attorneys made for the hearing and argument thereon. The record discloses, however, that the court allowed much greater latitude. The services to which Bishop testified included inspection of the property with his client and the real estate expert employed, consideration of whether the proper kind of offer had been made, the question of damages to the remainder, conferences with surveyors, and the examination of various records of the county commissioners involving the question of extending the proposed highway over certain railroad tracks. He testified that he had- appeared in court on five occasions, for substitution of attorneys, on dismissal of the case and on motion for change of venue and continuances thereon. He said that his services consumed 100 hours outside of the court appearances, which were itemized as follows: -

Examination of plans ..................10 hours
Examination of premises................25 hours
Checking records of county commissioners. 10 hours
Examining law ..................20 to 25 hours
Examining Commerce Commission! proceedings' ............................10 hours
Checking up viaduct and determining whether the proceeding would close up and vacate streets, and the legal effect thereof ..............................20 hours

We have no reason to question the character and extent of services rendered by Mr. Bishop, but it is impossible to determine from the record what portion of his services was necessarily rendered in connection with the motion to dismiss. The traverse and motion had been prepared by other counsel and it is not claimed that this required any of his time. In view of Mr. Gorman’s statement in open court December 14, 1939 that the county would in all probability dismiss the proceeding as to respondent and the stipulation that no further expense for legal services would be incurred after that date, it seems to us that the amount awarded by the court is excessive.

Respondent’s counsel argue that Bishop rendered most of his services prior to December 14, 1939, when they and the court were first apprised of the county’s intention to dismiss the proceeding as to respondent. This argument is not borne out by the record, however. Bishop testified that he rendered services during November and December 1939 and January 1940. In view of the fact that his appearance was not entered until December 14, 1939, and that he was advised on that date that the county would in all probability dismiss the proceeding as to his client, he was not justified in giving the time and attention to the proceeding that his testimony indicates.

We have no way of determining what a fair and reasonable charge would be under the circumstances, since the evidence does not disclose what time and effort was devoted to preparation for a hearing on the motion to dismiss, and, therefore, the judgment of the circuit court is reversed and the cause is remanded with directions that the court limit the testimony to services necessarily rendered in the preparation and filing of appearances, traverse and motion to dismiss and the hearing thereon, and to fix the fee accordingly.

Judgment reversed and cause remanded with directions.

Scanlan, P. J., and Sullivan, J., concur.