text:
    Paul Horecker, Appellee, v. Pere Marquette Railroad Company, Appellant.
    Gen. No. 30,141.
    1. Master and servant — liability of railroad for assault by gate-men. Where plaintiff went to depot with wife and child and an altercation arose between plaintiff and gatemen as to payment of half fare for child, but plaintiff obtained half-fare ticket and went to superintendent to make complaint, and later met the gatemen in the depot on their way to lunch, held that assault and battery by the gatemen was not within the scope of their employment or duties, and railroad was not liable. ■
    2. Appeal and error — reversal without remanding. Judgment should be reversed without remanding cause where reversal is for errors of law which cannot he obviated or cured on another trial.
    Appeal by defendant from the Circuit Court of Cook county; . the Hon. John A. Swanson, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.

      Certiorari denied by Supreme Court (making opinion final).
    Reversed.
    Opinion filed October 6, 1925.
    Glennon, Cart, Walker & Murray, for appellant; Sidney C. Murray and Marvin A. Jersild, of counsel.
    Charles C. Spencer, Arthur A. House and Albert Schaffner, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

By this appeal the defendant railroad company seeks to reverse a judgment' for $400 rendered against it, after verdict, in an action for damages for injuries to plaintiff occasioned by an assault and battery com- • mitted by two of defendant’s gatemen, Sheridan and McGrenera, at its passenger depot at Chicago on July 12, 1921. The defense was that at the time of the committing of the assault upon plaintiff the gatemen were not acting within the scope of their employment and were off duty, and, as plaintiff was not a passenger of defendant’s railroad and had no intention of becoming such, that defendant was not liable for the injuries which he received. At the close of plaintiff’s evidence, and again at the close of all the evidence, defendant moved for a directed verdict in its favor but the motions were denied. Defendant’s counsel here contend that the court erred in these rulings and also that the verdict and judgment are against the law.

There is no substantial dispute as to the material facts. Shortly before noon on the day in question plaintiff, accompanied by his wife and young son, went to defendant’s depot for the purpose of putting them on board of one of its trains, bound for South Haven, Michigan. He purchased a ticket for his wife and all went to the proper gate, where the wife’s ticket was shown to the gateman, Sheridan. An altercation there occurred as to whether plaintiff should procure a half-fare ticket for the son, resulting finally in plaintiff’s purchasing such ticket and putting his wife and son on board the train, which shortly thereafter departed. On his .way back through the gate he inquired of Sheridan where the superintendent’s office was, saying he desired to make a complaint as to Sheridan’s previous conduct. After a further altercation plaintiff went into a room near the gate and made his complaint to the superintendent, and then went into the passenger waiting room of the depot to meet a friend, intending to go home with him. In the meantime the lunch hour of Sheridan and another gateman, McG-renera, had arrived and they left their respective gates, put their ticket punches “in the drawer,” and started to go to lunch together, going first into said waiting room. There they met plaintiff and his said friend near the newsstand, which was about 150 feet away from the gate at which Sheridan previously had stood. After certain remarks had been made as to the nature and result of plaintiff’s complaint to the superintendent, heated and insulting words followed, which finally resulted in the two gatemen brutally assaulting plaintiff, knocking him down and injuring him. The evidence is undisputed that at the time of the assault the two gatemen were off duty, and that when on duty their only jobs were to inspect tickets at the gate. McGrenera testified: “My job there in the depot was ‘gateing trains.’ I didn’t do anything else, any other work. I guarded, the gates for the Pere Marquette Railroad as well as the Baltimore & Ohio, and so did Sheridan.” Defendant’s station master, Smiley, testified: “I was station master on July 12, 1921. * * * I had two gatemen working for me by the names of Sheridan and McGrenera; their lunch hour was between 12 and 12:30 in the afternoon; their duties as gatemen were to inspect transportation; that is.the only duty they had; they didn’t have any police duties.”

In Wood on Master & Servant, sec. 286, p. 552, the author says: “A master is liable for the act of his servant, done in the course of his employment about his master’s business. But he is not responsible for an act done outside of his employment, nor for the wanton violation of the law by him.” The author further says, sec. 307, p. 585: “By putting the servant in his place, he becomes responsible for all his acts within the line of his employment, even though they are willful and directly antagonistical to his orders. The ' simple test is, whether they were acts within the scope of his employment, — not whether they were done while prosecuting the master’s business, but whether they were done by the servant in furtherance thereof, and were such as may fairly be said to have been authorized by him.” In 3 Elliott on Railroads (3rd Ed.), pp. 892-95, sec. 1805, in treating of the liability of a railroad company for acts of its employees to others than passengers, the author says: “The general rule is that a master is liable for the wilful acts of his servants if done in obedience to the master’s order or within the scope of their employment or line of their duty, but not otherwise. * * * If an employee steps aside from the line of his duty and commits an independent tort on his own account and outside of the scope of his employment the master is not liable therefor. Thus a railroad company is not liable for injuries inflicted by an employee in a purely personal quarrel with one between whom and the corporation there is no connection or privity, nor for an assault by a trainman on one who had been a passenger but had left the train and ceased to be a passenger at the time of the assault.” In the above quotations from the two text-writers are set forth what is substantially, as we understand it, the law in Illinois and other jurisdictions. (Oxford v. Peter, 28 Ill. 434, 435; Johanson v. Johnston Printing Co., 263 Ill. 236, 240; Illinois Cent. R. Co. v. Ross, 31 Ill. App. 170,182; Stephenson v. Southern Pac. Co., 93 Cal. 558, 561; Central Ry. Co. v. Peacock, 69 Md. 257, 262; Genga v. Director General of Railroads, 243 Mass. 101, 106; Kinnonen v. Great Northern R. Co., 34 N. Dak. 556, 565; Roberts v. Southern R. Co., 143 N. C. 176, 181; Turner v. American Dist. Telegraph & Messenger Co., 94 Conn. 707, 713; Bowen v. Illinois Cent. R. Co., 136 Fed. 306.) In the Johanson case, supra, our Supreme Court says: “Outside of the scope of his employment the servant is as much a stranger to his master as any third person, and an act of the servant not done in the execution of services for which he was engaged cannot be regarded as the act of the master. If the servant step aside from his master’s business for some purpose wholly disconnected with his employment the relation of master and servant is suspended. The act of the servant during such interval is not to be charged to his master.” In the Bowen case, supra, decided by the U. S. Court of Appeals for the 8th Circuit, the distinction is pointed out, as affecting a master’s liability, between an act done by a servant during his employment and an act done by him within the scope of his employment, and attention is directed to the further distinction to be observed, as to. the liability of the master for the wrongful act of the servant, between* cases where the relation of carrier and passenger, or of a hotel keeper and his guest, exists, and cases where the master is the proprietor of a business house or railroad station and' the person injured by the servant’s wrongful act comes upon the premises to transact some matter connected with the master’s general business.

In view of the above authorities and the undisputed facts of the present case, we are of the opinion that the defendant railroad company is not liable for the injuries received by plaintiff in the manner shown, and that the circuit court committed errors of law in.refusing on defendant’s motions to direct a verdict in its favor and in entering the judgment appealed from, or any judgment, against it. It seems clear to us from the evidence that the wrongful assault of the two gatemen was without the scope of their employment or duties, and, as said in the Genga case, supra, was committed by them “in -a spirit of vindictiveness, or to gratify personal animosity or to carry out an independent purpose of their own”; and that the judgment appealed from should be reversed without remanding the cause. Such action is proper where this Appellate Court reverses a judgment “for errors of law which cannot be obviated or cured on another trial.” (Harty Bros. & Harty Co. v. Polakow, 237 Ill. 559, 567.)

Accordingly the judgment of the circuit court will be reversed.

Reversed.

Barnes, P. J., and Fitch, J., concur.


source: Caselaw Access Project

author: Mr. Justice Gridley

license: Public Domain

text:
    E. W. Wallace, Appellee, v. Yellow Cab Company, Appellant.
    Gen. No. 30,159.
    1. Highways and streets — speed law as creating only rule of evidence. Motor Vehicle Law, sec. 22, Cahill’s St. ch. 95a, 1f 23, creates only a rule of evidence and leaves it to the jury, or court trying case without jury, to say whether or not running at speed in excess of 15 miles per hour is greater than is reasonable and proper.
    2. Highways and streets — when automobile’s speed not unreasonable. In action for damages to automobile received in collision at street intersection, finding that plaintiff was not driving his car at an unreasonable or improper rate of speed held proper under the evidence.
    3. Highways and streets — when rate of speed not proximate cause of collision. In action for injury to automobile in collislon at street intersection, court held justified in finding that speed of plaintiff’s car, if excessive, was not proximate cause of collision.
    4. Highways and- stbeets — when negligence of taxicab driver shown. In action for injury to automobile in collision with taxicab at street intersection, finding that chauffeur of defendant’s cab was negligent in not checking the speed of his cab held proper under the evidence.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. John F. O’Connell, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Affirmed.
    Opinion filed October 6, 1925.
    McGreaham, Blake & Sharp, for appellant.
    William A. Morrow and Walter M. Fowler, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

In an action, tried before the court without a jury, to recover damages to plaintiff’s automobile because of defendant’s cab colliding with it, in the intersection of Dearborn and Goethe streets, Chicago, on the evening of March 14, 1922, there was a finding and judgment in plaintiff’s favor for $215, and defendant appealed. Ho question is raised as to the amount of the damages awarded.

The undisputed facts are in substance as follows: The intersection is in a residential portion of the city. Plaintiff was driving his car north in Dearborn street, about six feet from its east curb, approaching the intersection. Defendant’s chauffeur was driving its cab east on the south side of Goethe street, approaching the intersection. Each driver saw the other car before it reached the intersection. Plaintiff’s car was approaching from the right of defendant’s car. Each car continued on its course. The rear wheels of plaintiff’s car had just passed the middle of Goethe street, in the intersection, when the collision occurred. There was little traffic in the streets at the time. Defendant’s cab struck the rear wheels of plaintiff’s car with such force as to push it against the curb at the northeast corner of the intersection, and cause its rear wheels to be broken off, its frame, one axle and some fenders to be bent and its doors and radiator to be damaged.

The evidence is conflicting as to speed of the two cars. Plaintiff testified that, just before he entered the intersection and when he first observed the lights of defendant’s cab, approaching from his left and being then about a quarter of a block west of the intersection, he was driving his car at a speed of “about 15 miles per hour,” which rate was continued up to the time of the collision. Defendant’s chauffeur testified that as he approached Dearborn street his cab was moving at about 12 or 15 miles per hour, which speed he “believed” he maintained up to the time of the collision; that the reason he was going slow was because he knew his brakes were not in good condition; and that at the time of and immediately before the collision plaintiff’s car “was going between 25 and 30 miles per hour.” A clear preponderance of the testimony of all the eyewitnesses discloses that plaintiff’s car entered the intersection first and had the right of way (section 33, Motor Vehicle Law, Cahill’s St. 1921, p. 2364); and the physical facts of the collision show that defendant’s cab was moving at a very excessive speed.

While practically conceding that defendant’s chauffeur was guilty of negligence, defendant’s counsel contend that plaintiff was guilty of contributory negligence, barring any recovery by him, because he was driving his car at a rate of speed in excess of 15 miles per hour. Section 22 of said Motor Vehicle Law (Ca-hill’s St. 1921, p. 2360) has reference to passenger vehicles of the class of plaintiff’s and defendant’s, and provides: “no person shall drive a vehicle of the first division as described in section 2 of this Act, upon any public highway in this State at a speed greater than is reasonable and proper having regard to the traffic and. the use of the way or so as to endanger the life or limb or injure the property of any person. If the rate of speed of any motor vehicle * * * of said first division, * * * operated on any public highway in this State where the same passes through the residence portions of any incorporated city, town or village, exceeds fifteen (15) miles an hour, * * * such rates of speed shall be prima facie evidence that the person operating such motor vehicle * * * is running at a rate of speed greater than is reasonable and proper having regard to the traffic and the use of the way or so as to endanger the life or limb or injure the property of any person.” And counsel’s argument, as we understand it, is, that plaintiff was driving at a rate of speed prohibited by the statute, and, hence, he must be held guilty of negligence. We cannot agree with the argument or the conclusion. The statute does not fix a speed limit of 15 miles per hour in a residential portion of an incorporated city, but prohibits a rate of speed “greater than is reasonable and proper having regard to the traffic and the use of the way or so as to endanger the life or limb or injure the property of any person.” (People v. Lloyd, 178 Ill. App. 66, 70; Berg v. Michell, 196 Ill. App. 509.) And it merely prescribes a “rule of evidence,” viz., that driving a motor vehicle of the class mentioned in a residential portion of an incorporated city in excess of 15 miles per hour shall be “prima facie proof of running at a rate of speed greater than is reasonable under the circumstances.” (Gordon v. Stadelman, 202 Ill. App. 255, 259.) And leaves it to the jury, or in a case tried without a jury to the court, to say whether or not the running at a speed in excess of 15 miles per hour is “greater than is reasonable and proper having regard to the traffic and the use of the way,” etc. (People v. Lloyd, supra.) In the present case, even if plaintiff was driving his car at a speed in excess of 15 miles per hour (though on this point the evidence is conflicting), we think the court was fully justified in finding that the speed at which plaintiff’s car was running at and before the time of the collision was not unreasonable or improper, in view of all the facts and circumstances in evidence. And we think that the court was also justified in finding that the speed at which plaintiff’s car was running was not the proximate cause of the collision, and that it was caused by the negligent failure of defendant’s chauffeur to check the speed of the cab and allow plaintiff’s car to pass in front of it. (Lenartz v. Funk, 224 Ill. App. 180, 185; Lerette v. Director General of Railroads, 306 Ill. 348, 353.) And clearly the finding and judgment are not against the manifest weight of the evidence, as counsel also contend.

The judgment of the municipal court should be affirmed, and it is so ordered.

Affirmed.

Barnes, P. J., and Gridley, J., concur.


text:
    James J. Probasco, Appellee, v. Crane Company, Appellant.
    Gen. No. 30,220.
    1. Evidence — admissions against interest. In action for injury to automobile in collision on street, it was error to exclude a statement made by plaintiff immediately after the accident to the effect that he had become confused by lights and traffic and did not see defendant’s truck until he ran right into it, being an admission against interest.
    2. Damages — proof 6y itemized hill. In action for injury to automobile in collision, itemized bill of garage making repairs was not admissible, as proof of the amount of damages, in the absence of other evidence to show that the labor and material specified were necessary to put the car in the same condition that it was immediately before the collision and that the same were actually furnished and that the charges made therefor were reasonable or the usual and customary charges.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. M. D. Habtigan, Judge, presiding. Heard in the second division of this court for the first district at the March term, 1925.
    Reversed and remanded.
    Opinion filed October 6, 1925.
    Rehearing denied October 19, 1925.
    Alden, Latham & Young, for appellant; Charles Martin, of counsel.
    William L. Hart, for appellee; William L. Hart and Joseph P. Brodie, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

In an action for damages to plaintiff’s automobile, caused by its collision with defendant’s motor truck on the evening of November 18, 1922, on Randolph street near Desplaines street, Chicago, the court found defendant guilty and assessed plaintiff’s damages at $85.10, and entered judgment against defendant in that amount. This appeal followed.

As to the details of the accident plaintiff, driving his Ford sedan car (which had been in use for about a year and a half) west on the north side of Randolph street near Desplaines street, was the only witness testifying in his behalf, and defendant’s driver of the truck was the only eyewitness who testified for it. Each claimed that the other’s negligence was the cause of the collision. The district is a closely built-up business portion of the city and there was considerable traffic on the street. Plaintiff testified that, as his car was moving west at a speed of about 20 miles per hour, defendant’s truck “pulled” across the street car tracks and its right front wheel struck the front part of his car, damaging it. Defendant’s driver testified that the truck, with its front lights burning, had been moving east at a slow speed on the south side of Randolph street; that he had just turned it to the northeast, intending to enter an alley on the north side of the street, when he noticed plaintiff’s car approaching from the east; that he stopped the truck, then facing northeast and with its front parts partially between the two rails of the north street car track, but plaintiff’s car continued to advance and, swinging towards the southwest, collided with a front part of the truck; and that after the collision plaintiff, informing the witness that he desired to telephone a party to come and haul away his car, went into the nearby office of defendant.

Inasmuch as we have reached the conclusion that the judgment should be reversed and the cause remanded for a new trial on account of errors of the trial court (1) in striking from the record and refusing to consider certain testimony given by defendant’s witnesses, Mulhearn and Quinlan, and (2) in admitting in evidence, over objection, a certain bill for repairs rendered plaintiff by Lloyd-Shanesy Co., dated November 23, 1922, and aggregating $85.10, we refrain from commenting upon the merits of the case.

The excluded testimony of defendant’s employees, Mulhearn and Quinlan, was to the effect that plaintiff entered defendant’s office shortly after the collision, and had a conversation with them regarding it, during which he stated that he had become confused by the lights and the traffic on the street, and did not see defendant’s truck until he ran right into it. We think that this testimony as to the alleged conversation should not have been excluded, as it was competent evidence of an admission by plaintiff against his interest, bearing upon the question of his negligence at and before the time of the collision.

During the trial plaintiff testified as to the damage to his car, that “the frame was bent and the axle broke, and the front spring and fender were broke; * * * the car was repaired by Lloyd-Shanesy Co. They rendered me a bill for services amounting to $85.10, which I paid,” Thereupon plaintiff offered in evidence an itemized bill of said Lloyd-Shanesy Co. for certain repairs, of which the items for labor aggregated $39.25, and the items for materials $45.85, and the same was admitted in evidence, over defendant’s objection, although plaintiff made no attempt during the trial to show by competent testimony that the labor and materials specified were necessary in order to put his car in the same condition as it was immediately before the collision, or that the same were actually furnished, or that the charges made therefor were reasonable or the usual and customary charges. In Berry on Automobiles (4th Ed.), p. 974, sec. 1090, it is said: “A receipted bill for repairs to the automobile in question is not competent evidence of damages. It neither proves the reasonable value of the repairs, their necessity, nor that the time consumed in making them was reasonable.” (See also, Swam v. Mehl. 200 Ill. App. 496, 499; Coyne v. Cleveland, C., C. v. St. L. Ry. Co., 208 Ill. App. 425, 427-28; Conrad Co. v. St. Paul City Ry. Co., 130 Minn. 128, 130.) The rule is the same where a recovery is sought for expenditures made for medical services in an action for injuries to the person. (Amann v. Chicago Consol. Traction Co., 243 Ill 263, 266.) To sustain the ruling of the trial court, plaintiff’s counsel rely on the decision in Cloyes v. Plaatje, 231 Ill. App. 183, but in that case, as appears from the opinion (pp. 190-91), the evidence showed that the damaged automobile was taken to a garage engaged in the business of repairing automobiles and was there repaired in the ordinary course of business; that the repairs made were those required as a result of the collision; and that the proprietor of the garage testified as to what necessary materials were used and as to the number of hours his men were engaged in making the repairs, as evidenced by time cards written on by the men. Such evidence is lacking in the present case.

For the errors indicated the judgment of the municipal court is reversed and the cause is remanded for a new trial.

Reversed and remanded.

Barnes, P. J., and Fitch, J., concur.


author: Mr. Justice Taylor

text:
    Klever Shampay Karpet Kleaners, Inc., Appellee, v. City of Chicago et al., Appellants.
    Gen. No. 30,323.
    1. Appeal and ebbob — scope of remew where exceptions not passed on below. Where at time of order appealed from report of master stood upon exceptions, and record does not show that they were passed upon, Appellate Court is bound to consider the case upon the pleadings alone.
    2. Appeal and ebbob — interlocutory order subject to review. An order which directed that an injunction theretofore issued, which had expired, be and remain in full force and effect, held to constitute an interlocutory order subject to review, under Practice Act, section 123, Cahill’s St. ch. 110, f 122.
    3. Appeal and ebbob — appealability of interlocutory orders. Before the passage in 1887 of section 123 of the Practice Act, Cahill’s" St. eh. 110, f 122, appeals could not be taken from interlocutory orders or decrees.
    4. Appeal and ebbob — review of constitutional questions. Even though a constitutional question is involved, the Appellate Court has jurisdiction of an appeal from an interlocutory order, under Cahill’s St. ch. 110, If 122.
    5. Municipal coepoeations — building code requiring separation of buildings invalid. Chicago Building Code of 1922, sec. 1416, requiring benzine rooms operated by dry cleaners to be in a building separated by 50 feet from other buildings, is unreasonable.
    6. Municipal coepoeations — dry-cleaning business subject to regulation. The City of Chicago has authority reasonably to regulate the dry-cleaning business.
    7. Municipal coepoeations — ordinance must be reasonable. The requirements of an ordinance regulating business must be adapted to the objects sought and not manifestly unreasonable, and must not be oppressive and unreasonable.

      8. Constitutional law — police power defined. Police power means the power of promoting the public welfare by restraining and regulating the use of liberty and property.
    9. Constitutional law — regulatory ordinance as deprivation of property without due process. Chicago Building Code 1922, sec. 1416, requiring building of dry-cleaner containing benzine room to be separated from other buildings by at least 50 feet, is unconstitutional as depriving owner of property without due process of law.
    10. Eminent domain — building code deprivation of property without compensation.. Chicago Building Code 1922, sec. 1416, requiring building of dry-cleaner containing benzine room to be separated from other buildings by at least 50 feet, is unconstitutional as depriving owner of property without compensation.
    11. Municipal cobporations — ordinance valid in part. Chicago Building Code 1922, secs. 1412-1421, regulating buildings for dry-cleaning establishments, is valid and in force except as to section 1416 which is invalid.
    12. Injunctions — mandamus proper remedy to obtain building permit. All of Chicago Building Code 1922, secs. 1412-1421, .being valid except section 1416, dry-cleaner refused permit to construct building was bound to pursue his remedy by petition for mandamus and was not entitled to go into equity to restrain city officials from enforcing such parts of the Building Code.
    13. Equity — multiplicity of suits not shown. Court of equity did not have jurisdiction of suit to restrain city officials from enforcing sections of Building Code relating to dry-cleaning establishments on the theory that a multiplicity of suits was threatened, where conditions affecting the various dry-cleaning establishments were not similar and a decision affecting complainant’s situation would not determine questions which would arise in other suits.
    Appeal by defendants from interlocutory order of the Superior Court of Cook county; the Hon. Qkabees M. Foell, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1925.
    Reversed.
    Opinion filed October 21, 1925.
    Francis X. Busch, for appellants; Albert H. Veeder, of counsel.
    Schuyler, Ettelson & Weinfeld, for appellee.
   Mr. Justice Taylor

delivered the opinion of the court.

On March 6,1925, the complainant, Klever Shampay Karpet Kleaners, a corporation, filed a bill of complaint asking that the City of Chicago and certain of its officers and agents be restrained from interfering with the construction of a certain building to be used by the complainant in Chicago in its dry-cleaning business. On March 11, 1925, the defendants demurred. On March 14, 1925, having obtained leave, the complainant filed an amended bill. On March 20, 1925, the defendants filed an answer. On March 24, 1925, although an answer already had been filed, an order was entered that the demurrer stand to the amended bill. On the same day an order was entered overruling the demurrer, and granting the defendants leave to file an answer. On April 3, 1925, the complainant filed a replication.

On April 6, 1925, the chancellor entered an order granting an injunction for ten days, and referred the cause to a master. That order, as far as it pertained to the injunction, restrained the defendants from enforcing sections 1412 to 1421, both inclusive, of the Chicago Building Code of 1922, against the complainant as to the erection of the building in question.

On April 16, 1925, permission having been obtained, the defendants filed an amended answer, stating therein that the ordinance referred to was valid, and that the complainant was not entitled to the relief prayed.

On the same day, an order was entered extending the injunction for a period of ten days. On April 22, 1925, an order was entered extending the injunction for a period of fifteen days. On May 7, 1925, a report of the master was filed. Therein the master found that the dry-cleaning ordinance is unconstitutional and void, and recommended that the temporary injunction be made permanent.

On May 9, 1925, an order was entered by the chancellor that the objections to the master’s report stand as exceptions. On May 11,1925, an order was entered placing the cause on the trial calendar. And on the same day, on motion of the solicitors for the complainant, an order was entered that the injunction theretofore issued be and remain in full force and effect until the further order of the court.

On June 20,1925, an order was entered, re-referring the cause to the master “for further hearing and report as to the law and facts.”

This appeal is from the above-mentioned injunction order of May 11, 1925.

There is nothing in the record that shows whether the chancellor in entering the order of May 11, 1925, based his judgment in any way on the evidence taken before the master, or was in any way advised by his findings. At the time the order of May 11, 1925, was entered, the report of the master stood upon exceptions, and the record does not show that they were passed upon. The record does show that there was a re-reference but that order was merely general to take evidence and report. We are bound, therefore, to consider the case upon the pleadings alone.

The complainant in its amended bill alleged that it has since March, 1924, carried on a general cleaning and dyeing business at 4631-4641 Cottage Grove avenue, in Chicago, of which premises it has a lease, expiring on April 31, 1934; that the property has a frontage of 125 feet on Cottage Grove avenue, and a depth of 157 feet, extending to an alley in the rear; that Cottage Grove avenue in that vicinity is a business street; that the property is improved with a modem one-story fireproof brick building covering the whole above described area of ground; that it has had architect’s plans made for the reconstruction and remodeling of the building so as to make two separate buildings, one a one-story fireproof brick building covering the whole area except the northwest comer, measuring 25 by 82 feet, within which building it would maintain its office, wet wash equipment, receiving and shipping departments connected with its rug washing and cleaning process; and the other, on the 25 by 82 feet area, a modem one-story fireproof brick building, to be used for the dry cleaning process, containing a wash and benzine room, the benzine room, 29 by 30 feet, equipped with modem dry-cleaning machinery, to be separated from the other by a 12-inch fireproof brick wall, without openings; that it is provided that the wash and benzine rooms will be separated from all other buildings by fire walls of brick not less than 12 inches in thickness and without openings into any adjoining building; that it is further provided that all the apparatus and machinery to be installed in the benzine or naphtha room will be in accordance with the requirements of the city ordinances.

It is further alleged that on Febmarv 25, 1925, it applied to the Commissioner of Buildings for a permit to make the alterations, but, although the plans and specifications had been approved by the Commissioner of Health and the Commissioner of Buildings, they were disapproved by the Chief of the Bureau of Fire Prevention and Public Safety, on the ground that the proposed benzine building was to be located in a building which was no.t detached at least 50 feet from any other building or from the line of adjoining property which might be built upon, as required by sections 1412 to 1421, both inclusive, of the Chicago Municipal Code of 1922, and a permit was refused. It is further alleged that the City has not the power to regulate dry cleaning; that as the ordinance is not a general ordinance applicable to all persons and corporations using gasoline, benzine, naphtha or other volatile oils, under circumstances essentially similar to those under which such substances are used by the complainant and other dry cleaners, but is arbitrary and discriminatory in that it singles out dry cleaners for regulation and not others, it is not a lawful exercise of the power granted to cities and villages.

It is furthei alleged that subsequent to the enactment of paragraph 65 of section 1 of article V of the Cities and Villages Act [Cahill’s St. ch. 24, ft 65, subd. 65], the City Council of Chicago passed a comprehensive ordinance, governing the storage of gaso- • line, benzine, naphtha and other inflammable liquids, which was on November 22, 1922, re-enacted, with certain amendments as chapter XLI and sections 2276 to 2374, inclusive, of the Chicago Municipal Code; that the only provisions in the ordinance — sections 1412 to 1421 — that are not contained in the general ordinance are (1) the provision concerning the payment of an additional fee, and (2) the provision specifying that any benzine room constructed by a dry-cleaner must be located at least 50 feet distant from any other building; that said provisions are invalid and void.

It is further alleged that the general ordinance on inflammable liquids is based on scientific treatment of the subject, whereas the ordinance in question is not, but is arbitrary and unreasonable; that gasoline, benzine and naphtha are staple articles of commerce and their use is not confined to any large extent to the business of dry cleaning, but that they are used in innumerable ways in industries and private homes; that in many businesses they are used in far larger quantities and under far more dangerous circumstances than in the dry-cleaning business, that, therefore, there is no sufficient reason for placing dry cleaners and spotters in a class by themselves, or requiring of them additional building requirements or supervision.

It is further alleged that there are seventy-five to eighty dry cleaners in Chicago in a similar situation to the complainant; that some of them are operating benzine rooms without having complied with the ordinance in question and are threatened with arrest; that actions have been begun against some of them for its violation; that many dry cleaners, who have complied with all the lawful ordinances, are desirous of operating benzine rooms but are prevented because the city insists upon enforcing the 50-foot requirement of section 1416; that, as a result, a multiplicity of suits is threatened and will occur unless the matters involved are determined in one suit.

It is further alleged that the complainant has invested in the dry-cleaning business more than $75,000; that it has built up a valuable and permanent business; that heretofore it has not had any benzine room, but in order to retain its customers it is necessary for it to do both wet wash and dry cleaning; that most first-class cleaners do both and are permitted to do so in plants similar in nature and similarly located in respect to other buildings as the plant provided for in complainant’s plans and specifications; that the following dry-cleaning plants, Hygienic Cleaning Company, National Cleaners, Drexel Cleaners and Dyers, and Abe Marks, have been licensed and permitted to operate, and are operating without the benzine room being detached 50 feet from any other building; that refusal to grant the permit in question is an unjust discrimination, and unless the city is enjoined from interfering, the complainant will suffer irreparable damage.

It is further alleged that sections 1412 to 1421, both inclusive, are invalid because the city is "without power to license, regulate, control or locate the business of dry cleaning; that they constitute an attempt to license the dry-cleaning business without power to do so, and are, therefore, invalid and in violation of the constitutions of both the State and the United States; that they are invalid and in violation of the Constitution of the State and the United States because they require the written consent of a majority of all property owners according to frontage on both sides of the street surrounding the block in which two-thirds of the property on both sides of the streets surrounding such block is used exclusively for residence purposes; that such a limitation is unreasonable and arbitrary.

It is further alleged that section 1416 is illegal and void and in violation of the constitution of the State and United States in that it requires every building used for dry cleaning to be at least 50 feet from any other building or from the line of adjoining property which may be built upon; that such limitation is confiscatory and would prevent the establishment of dry-cleaning plants within the city and would drive the business out of existence; that section 1416 is further invalid, as it excepts from the 50-foot provision places where such a business was carried on prior to July 22, 1912, and there were buildings separated from all other buildings by fire walls with no openings into adjoining buildings; that the limitation and exception is discriminatory and unreasonable and tends to foster a monopoly on the part of the dry cleaners operating prior to July 22, 1912, and is, therefore, invalid and contrary to the Constitution of the State and the United States.

The answer of the city alleges that the complainant has in the past carried on a cleaning business wherein only soap and water were used, and at no time did the complainant use gasoline, benzine or other inflammable liquids in connection with its business; that the complainant has proposed to modify the building by creating an open court in the center of the building, which, in the judgment of the defendant, would not be safe, and would constitute a fire hazard.

The answer denies that the premises are improved with a fireproof building, and avers that the building thereon is a one-story building; that the ceiling of the building is an open joist wood ceiling, covered with ta.r paper resting on unprotected steel trusses; that when a steel truss is not protected from heat by insulating material it is dangerous as a fire hazard, as it readily bends and allows the roof to collapse when subjected to the heat of a small fire.

By the answer, it is further averred that the outside wall of the building on each side is joined to the outside wall of the adjoining building; that it is proposed to modify the building by creating an open court without a roof in the center part of the building, but if that is done there is no way by which fire fighting equipment could be brought into the open court; that there is no opening from the outside by which firemen could reach the open court in which a fire might take place; that the proposed changes in the building are not safe and constitute a fire hazard; that the Chief of the Bureau of Fire Prevention and Public Safety did not refuse to approve the plans on the sole ground that the building was not detached at least 50 feet from any other building or structure, but, also, refused to approve the plans because the proposed benzine building was not safe and would constitute a fire hazard.

Taking the view we do of the case, it is only necessary here to consider (1) whether we have jurisdiction of such an appeal from an interlocutory order, and (2) whether the dry-cleaning ordinance is invalid as unreasonable, or unconstitutional, or both.

(1) It is urged for the complainant that the record does not show that the appeal which was taken is from an interlocutory order granting an injunction, or enlarging the scope of an injunction. The record shows that the order appealed from was that of May 11, 1925. It is true that two prior restraining orders had been entered, but they had expired and were functus officio. It will be seen, therefore, that the order of May 11, 1925, which ordered that an injunction theretofore issued — which had expired — be and remain in full force and effect, constituted such an interlocutory order as comes within the provisions of section 123 of the Practice Act [Cahill’s St. ch. 110, IT 122].

The appeal having been taken, therefore, from an interlocutory order granting an injunction, and as it is contended that a constitutional question is involved, has this court jurisdiction? For the city it is urged that as this is an appeal from an interlocutory order, and is authorized without limitation by section 123, this court has jurisdiction, and especially as there is no provision for appeal from such an interlocutory order to the Supreme Court.

There is a seeming conflict between sections 123 and 118 of the Practice Act [Cahill’s St. ch. 110, [[[[ 122, 118]. The latter purports to exclude appeals to this court in all cases where a constitutional question is involved. In article VI, sec. 11 of the Constitution, it is provided that an. Appellate Court may be created which shall have jurisdiction of such appeals and writs of error “as the General Assembly may provide may be prosecuted from circuit and other courts,” and, further, that from said Appellate Court “appeals and writs of error shall lie to the Supreme Court, in all criminal cases, and cases in which a franchise or freehold or the validity of a statute is involved, and in such other cases as may be provided by law.”

In the act of 1877, which created the Appellate Courts as provided for in the Constitution — ch. 37, 1¡ 40, Cahill’s St. 1925 — jurisdiction was withheld from the Appellate Courts in appeals or writs of error from “final judgments, orders or decrees” in “criminal cases, not misdemeanors, and cases involving a franchise or freehold, or the validity of a statute.” That reservation or limitation was made not by the Constitution itself, but by the Legislature which under the Constitution had authority to limit the jurisdiction of those courts.

Later, in 1887 — chapter 110, ¶ 122, Cahill’s St. 1925 — it was provided by an act of the Legislature that “whenever an interlocutory order or decree is entered in any suit pending in any court in this State, granting an injunction, or overruling a motion to dissolve the same, or enlarging the scope of an injunction order * * * an appeal may be taken from such interlocutory order or decree to the Appellate Court.”

Before that time it was the law in this State that appeals could not be taken from interlocutory orders or decrees. Gage v. Eich, 56 Ill. 297; Hunter v. Hunter, 100 Ill. 519. In construing the act of 1887 — chapter 110, sec. 123, supra — this court, in Hill v. Tarbel, 91 Ill. App. 272, said, “By the terms of the act, jurisdiction of such interlocutory appeals was conferred upon the Appellate Court ‘in any suit pending in any court’ whether involving a freehold or otherwise,” and that seems to be the law of this State today. Craig v. Craig, 246 Ill. 449; Mobile & O. R. R. Co. v. Fraser, 169 Ill. App. 210; The People v. Sears, 230 Ill. App. 484. In the latter case, which involved a matter of revenue, the court said: “The language of this section (section 123) is as broad and comprehensive as it is possible to employ. No class of cases is excluded. It includes all interlocutory orders which may be entered in any case, no matter whether an appeal from a final order in such a case would go to the Supreme Court or to the Appellate Court, and as there is no constitutional limitation on the power of the General Assembly to confer such jurisdiction, we see no reason why the language employed should be limited so as to exclude cases in which the revenue is involved.”

It is true that the two cases of Patterson v. Denton, 201 Ill. App. 382 and Birch v. Denton, 201 Ill. App. 386, are to the contrary, but as the court said in the Sears case, supra, they are against the weight of authority in this State. It is our judgment, therefore, that even though a constitutional question is involved, this court has jurisdiction of the appeal from the interlocutory order of May 11,1925.

(2) Is the dry-cleaners’ ordinance an unreasonable regulation, and, so, invalid, and is it as a whole unconstitutional? In Fishbain v. City of Chicago, 237 Ill. App. 631, it was held that the city had power to enact reasonable regulations in regard to the dry-cleaning business; that in passing the ordinance in question it was the intention of the City Council that it should be given effect without section 1416; and that, therefore, as the bill of complaint did not allege that the whole ordinance in question was invalid, the complainant had an adequate and complete remedy at law, and the injunction should not have been granted.

The chief objection to the ordinance is made concerning part of paragraph (b) of section 1416, which provides as follows: “Every such building shall be detached and at least 50 feet from any other building or structure or to the line of adjoining property which may be built upon; provided, however, that the use of any building in which a dry cleaning business was carried on prior to July 22, 1912, may be continued where such building is separated from-all other buildings by a fire wall, with no openings into any adjoining building; and further provided, that any building previously used for dry cleaning but not so occupied or used for such purposes for a period of three consecutive months immediately prior to the passage of this ordinance, shall not again be used for the business of dry cleaning unless all requirements governing new buildings or dry cleaning plants have been complied with. ’ ’

In our judgment, the restriction provided for in that paragraph in regard to the dry-cleaning building being detached from other buildings or apart from adjoining property at least 50 feet is an unreasonable regulation, and therefore, invalid, and is also unconstitutional. Article II, of sec. 2 of the Constitution (Bill of Rights) provides that “No person shall be deprived of * * * property without due process of law,” and section 13 provides that: “Private property shall not be taken or damaged for public use without just compensation.” The theory of the defendants is that the 50-foot restriction in question constitutes a proper exercise of the police power and is not a taking of private property without due process of law. There is no doubt but that the city has authority, reasonably, to regulate the dry-cleaning business in the city of Chicago. The ordinance itself provides that the drying room shall be of fireproof construction, that the walls of the dry-cleaning building shall not be less than 12 inches thick. Those provisions are in addition to the requirements that ‘‘ every such building shall be detached and at least 50 feet from any other building or structure or to the line of adjoining property which may be built upon.” It will be seen that not only is the building itself required to be fireproof, which is a proper regulation, but it must stand alone and apart from other structures at a minimum of 50 feet. Is that requirement illegal'?

In City of Chicago v. Mandel Bros., 264 Ill. 206, where an ordinance was considered which provided that not more than one floor of a basement should be used for the retail sale of goods, the court said:

“It is argued that council gave no consideration to the fact that a basement may be made as safe as any floor above the street. This is a question with which the city council had to deal. It is a legislative question, which must be left to the judgment and discretion of the legislative department, and unless the exercise of such judgment and discretion is manifestly unreasonable the courts will not interfere with it. It is not for a court to say that in its judgment the requirements of an ordinance enacted for the promotion of the public safety are too stringent, provided they are adapted to the object sought and are not manifestly unreasonable. No doubt the council took into consideration the different conditions in the basement and upper floors in regard to fires, the relative danger from explosion, smoke, darkness, water and falling debris. We cannot say that the difference in conditions is not such as to justify the prohibition complained of in this ordinance.”

In City of Chicago v. Washingtonian Home, 289 Ill. 206, the court said: “Unreasonable regulations for the protection of the lives and the safety of citizens, as well as of property against destruction by fire, are within the powers delegated to the city, and which may be exercised by it.” And, further, “Any regulation which tends to lessen the damage or danger of fires and prevent the spreading thereof in densely populated districts, is one which tends toward the protection of life and property of the public, and is, therefore, unless oppressive and unreasonable, a proper exercise of police power.” In that case, the court held that an ordinance which provided that a sprinkler apparatus should be installed in certain classes of buildings was valid.

The requirements of the ordinance must be “adapted to the object sought” and “not manifestly unreasonable”; and must not be “oppressive and unreasonable.”

Can it reasonably be said that the 50-foot restriction in question, when applied, does not practically take away the user of a large area — here with 100 feet of frontage — of the property upon which the complainant desires to establish a dry-cleaning business ? Quite obviously it does. Is there then a justification un- ■ der the police power for such a drastic regulation? We think there is not. Police power means “the power of promoting the public welfare by restraining and regulating the use of liberty and property.” Freund on Police Power, p. 1.

In City of Chicago v. Jackson, 196 Ill. 496, the court quotes with approval the following from Dillon on Municipal Corporations:

“Bights of property cannot be invaded under the guise of the police power. All embracing and penetrating as the police power of the State is and of necessity must be, it is, nevertheless, subject, like all other legislative power, to the paramount authority of the State and the Federal Constitution. A right conferred or protected by the Constitution cannot be overthrown or impaired by any authority derived from the police power.”

In that case, the court said:

“It is undoubtedly true that the State, through the legislature, has the right to determine what shall be a reasonable exercise of the power, and so the municipal corporation, through its delegated power, may do so, but it cannot arbitrarily attribute the doing of a thing to the police power, whether reasonably done or not. It is a question finally for the courts to determine whether an act is within the police power.”

It has been held — Fraser v. City of Chicago, 186 Ill. 480 — that the police power may extend to the destruction of private property without compensation in order to prevent the advance of an invading army, or the spread of conflagration, and the reason given is urgent public safety. In the instant case, the situation is not of that character. If appropriate fire prevention, without depriving the user of a large area of the property, can be accomplished by regulation and requirements which, when conformed to, sufficiently avoid the prospective danger, then obviously the property ought not to be restricted as the ordinance provides, but should be left to the owner to use. A restriction or provision which renders real estate permanently unproductive takes away from the owner the constitutional protection of his property rights. An owner may be bound to conform to reasonable regulations, but only those which leave him a substantial user of his property. Here the restriction seems disproportionate to the danger.

It is true, considering the inflammability and combustibility of various materials used in the dry-cleaning business, that quite drastic requirements may be provided for, but it does not follow that in doing so it is reasonable to compel an owner, contemplating going into that business, to sacrifice or give up for the public welfare such substantial property interests as the 50-foot provision here requires, when there must be other methods such as fire walls, forms of exits and entrances, fireproofing, fire extinguishing apparatus, and other scientific precautions which would reasonably and sufficiently make for safety without, what the provision here in question entails, substantial confiscation of private property rights without compensation.

In our judgment, the provision in question constitutes an unreasonable and oppressive regulation and is, therefore, invalid, and it is unconstitutional as depriving the owner of property without due process of law and without compensation.

The question then remains, whether the ordinance may be considered as valid, even if the paragraph providing for the restriction of 50 feet be considered as invalid and as unconstitutional. In the view we take of the ordinance, it contains, apart from the paragraph requiring the 50-foot restriction, provisions regulating the business of dry-cleaning, which constitute in and by themselves a complete and workable fire prevention plan. It would be superfluous to set forth here even a summary of its contents. The ordinance is quite elaborate and exhaustive, and passed for the public welfare, and, in our judgment, must be considered valid and in force, save as to the above recited paragraph. People v. Chicago Rys. Co., 270 Ill. 278.

It follows, therefore, that as the ordinance is valid, with the paragraph in question eliminated, as we think it is, the complainant, under the present rigorous rules of procedure, was bound to pursue his remedy by a petition for a writ of mandamus, where either party is entitled to a jury — Wilke v. City of Chicago, 212 Ill. App. 414 — and was not entitled to go into equity. Grace Missionary Church v. City of Zion, 300 Ill. 513; Hamilton v. City of Chicago, 227 Ill. App. 291; Kline-smith v. Harrison, 18 Ill. App. 467; City of Chicago v. O’Hara, 124 Ill. App. 290.

It is further contended that as there are seventy-five or eighty dry cleaners similarly situated, that have not complied with the 50-foot requirement, some of whom have been sued and others threatened with suit, jurisdiction should be taken by a court of equity to prevent a multiplicity of suits. In our opinion, this contention is untenable for several reasons. In the first place, it is apparent from the allegations contained in the complainant’s bill that the other parties engaged in a similar line of business are not by any means similarly situated, either with the complainant or with each other. Complainant’s allegation on this point is that “some of said dry cleaners are now operating benzine rooms,” without complying with the ordinance and accordingly have been and are threatened with prosecution by the city and its officers; that actions have already been instituted against some of the said dry cleaners, for alleged violations of the said ordinance — though in what respect is not specified— “and they have otherwise become involved in litigation with said city, concerning the enforcement of said ordinance,” — again it is not specified in what respect; that other dry cleaners have been threatened “with such prosecution or litigation by the city”; that many other dry cleaners in the city who have complied with the ordinance are desirous of operating benzine rooms in connection with their establishments but are presented from doing so by reason of the fact that the city insists upon enforcing the 50-foot requirement of the ordinance. In the next place, the city alleges, in the answer filed by it in the case at bar, that the Fire Prevention Bureau refused to approve the plans submitted by the complainant for a number of reasons, specifying them. Some of its reasons were covered by the provisions of the ordinance in question here and some of them were entirely apart from the provisions of that ordinance. Thus it will be seen that the issues made by the pleadings in this case are such as to necessitate an examination into all the facts surrounding the complainant’s own property and plant, and it would not at all follow that a decision affecting complainant’s situation would mean that the situations presented by the circumstances surrounding the plants of these other dry cleaners should or could be treated similarly. City of Chicago v. Collins, 175 Ill. 445; City of Chicago v. Chicago City Ry. Co., 222 Ill. 560; Clark Teachers’ Agency v. City of Chicago, 220 Ill. App. 319.

For the reasons we have given, the order of the chancellor will be reversed.

Reversed.

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


author: Mr. Presiding Justice Thomson

text:
    Marie Clemenson, Administratrix of the Estate of Charles O. Clemenson, Deceased, Appellee, v. W. F. Whitney, Appellant.
    Gen. No. 29,811.
    1. Bailments — no gratuitous bailment in absence of express agreement. An automobile sales dealer was not a gratuitous bailee where he agreed with widow of purchaser of car to sell the car for her, in the absence of an express agreement that no charge was to be made in selling the car.
    2. Bailments — automobile sales dealer entitled to consideration for selling ear. An automobile sales dealer taking car from widow of purchaser under agreement to sell it for her was entitled to make a reasonable charge for his services and could not escape responsibility of a bailee for hire by announcing, after a liability had arisen, that he did not intend to charge anything.
    3. Bailments — sufficiency of evidence to show car stolen. In action against automobile dealer agreeing to sell car left with him, evidence held sufficient to show that car was stolen from defendant’s garage.
    4. Bailments — presumption of negligence of bailee. Bailor suing for value of property lost must in all instances prove that the bailee was negligent; but when he shows that the goods which were intrusted to the bailee’s care were not delivered upon demand, he has made out a prima facie case or created a presumption of negligence which the bailee may overcome by offering evidence to show that he was not negligent, and, if he produces such evidence, the bailor in order to make out his case must show that the bailee was in fact negligent and that its negligence caused the loss or contributed thereto.
    5. Bailments — presumption of bailee's negligence, when overcome. Where bailor makes out prima facie case of negligence against bailee by showing that goods bailed have not been returned on demand, such prima facie case is not overcome by a showing to the effect that the goods have been burned or otherwise destroyed '»r have been stolen, but before the prima facie case can be said to be overcome the bailee must further produce evidence tending-to prove that such loss was occasioned without his fault.
    6. Bailments — prima facie case of negligence held not overcome. In action to recover from automobile dealer value of car stolen from dealer’s garage where it had been placed for bail, defendant’s evidence as to the exercise of care held not to overcome prima facie case made out by plaintiff by proving failure to return car on demand.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1924.
    Affirmed.
    Opinion filed October 28, 1925.
    Tenney, Harding, Sherman & Rogers, for appellant; Charles F. Harding, Jr. and John E. O ’Hora, of counsel.
    Kremer, Branand & Hamer, for appellee; Robert Branand, Jr. and Otto M. Hamer, of counsel.
   Mr. Presiding Justice Thomson

delivered the opinion of the court.

By this appeal the defendant, Whitney, seeks to reverse a judgment recovered against him in the munieipal court of Chicago by the plaintiff for the sum of $725.

The defendant, Whitney, was in the automobile business, selling Lincoln and Ford cars, and in connection with his business he maintained a garage. He testified that he also sold second-hand Fords which were traded in on new cars. Whitney had a salesman named Anderson, who was a close friend of the Clemenson family. Through Anderson the defendant sold Mr. Clemenson a Ford sedan, and later, when Mr. Clemenson died, Mrs. Clemenson desired to dispose of the car. The evidence shows that at the request of her son, Anderson called to see Mrs. Clemenson about the matter and, as a result of his arrangement with her, he took the car over to the defendant’s garage, where an effort was made to dispose of it. Some days later the car was stolen from the defendant’s garage, during the night. The defendant being unable to return the car and unwilling to account for its value, Mrs. Clemenson brought this action against him.

In support of this appeal the defendant contends that he was a gratuitous bailee, and as such was liable only if the theft of the car was due to his gross negligence; and that the burden was upon the plaintiff to prove that he was guilty of such negligence, as a result of which the car was stolen. The defendant was not a gratuitous bailee unless there was an express agreement to the effect that no charge was to be made for the service rendered in selling the car. The question of whether that was the situation was a question of fact. On that question the evidence is in direct conflict. Anderson testified that he told Mrs. Clemenson that there would be no charge for selling the car. Mrs. Clemenson testified that in her talk with Anderson nothing whatever was said on this subject, one way or the other. If Mrs. Clemenson was right about it, the defendant would of course be entitled to make a reasonable charge for his services and he could not escape the responsibilty of a bailee for hire, by announcing, after a liability had arisen, that he did not intend to charge anything. If the trial court, in finding the defendant liable, went on the theory, and found as a fact, that he was a bailee for hire rather than a gratuitous bailee, we are not in a position to say, on the evidence in this record, that such finding is against the manifest weight of the evidence. We think, however, that this question is not of vital importance in the decision of this case.

It is conceded that the plaintiff made out a prima facie case when she introduced evidence showing that she had delivered the car to the defendant and he had failed to return it to her or to account for its value. But the defendant contends: first, that he showed that the car was stolen; and second, that the proof of that fact required the plaintiff to prove by a preponderance of the evidence that the theft was occasioned or materially contributed to by his negligence.

In meeting these contentions the plaintiff urges that the defendant’s proof did not show that the car was stolen. We are of the opinion that it did. One Schacht, who was employed by the defendant as a manager, testified that the plaintiff’s car was in the defendant’s garage on the evening of August 6, 1923; that he saw it there shortly after 9 o’clock when he went to the garage to close it up; that he was there to see if the doors were all locked; that he then bolted the doors solid; that the doors were equipped with chains and these were on; that shortly after midnight, when he returned to the garage to put up his own car, he saw that the rear door of the garage, opening out on the alley, was open and the plaintiff’s car was gone. He further testified that he immediately notified the police. We are of the opinion that this evidence is sufficient to show that the car was stolen, although the evidence is further to the effect that there was nothing to indicate that anybody had broken into the garage by force.

On the second point above mentioned, we are of the opinion that defendant’s contention is not tenable. The treatment of the question of the burden of proof in bailment cases has occasioned some confusion in the decisions. On the general question, our Supreme Court held in Miles v. International Motel Co., 289 Ill. 320, that: “The weight of modem authority holds the rule to be that where the bailor has shown that the goods were received in good condition by the bailee and were not returned to the bailor on demand, the bailor has made out a case of prima facie negligence against the bailee, and the bailee must show that the loss or damage was caused without his fault. (Cumins v. Wood, 44 Ill. 416; Schaefer v. Washington Safety Deposit Co., 281 Ill. 43.) The effect of this rule is, not to shift the burden of proof from plaintiff to defendant but simply the burden of proceeding. The bailor must in all instances prove that the bailee was negligent, but when she shows that the goods which she intrusted to the bailee’s care were not delivered upon demand she has made out a prima facie case or created a presumption of negligence which the bailee may overcome by offering evidence to show that it was not negligent, and if it produces such evidence, the bailor, in order to make out her case, must show that the bailee was, in fact negligent and that its negligence caused the loss or contributed thereto.”

In the Schaefer case, referred to by our Supreme Court in the Miles case, supra, the plaintiff sued the Security Deposit Company to recover an amount of money which she had placed in a safety deposit box leased from the defendant. The court pointed out that the undisputed evidence was that the box was in the exclusive control of the defendant' and that the plaintiff could not obtain access to it except by signing a slip at the office and giving her key to the person in charge of the vaults. The court then said: “Under such conditions we see no reason to depart from the ordinary rule that where a bailee receives property and fails to return it the presumption arises that the loss was due to his negligence, and the law imposes on him the burden of showing that he exercised the degree of care required by the nature of the bailment. (Cumins v. Wood, 44 Ill. 416; Bennett v. O’Brien, 37 Ill. 250.) To call upon. the plaintiff, under such circumstances, to prove some specific act of negligence by which her money was lost, and which she must necessarily prove by defendant’s employees, would impose upon her a practically impossible burden.”

It is the contention of the bailee defendant, in the case at bar, that, although the plaintiff made out a prima facie case of negligence, by her showing that her car was delivered to the defendant, but that he failed to deliver the car back to her upon demand, he fully and successfully rebutted that presumption, merely by showing that the car had been stolen, and that thereupon it devolved upon plaintiff, as a part of the burden resting upon her, to establish negligence on his part, and to show that the theft was caused by such negligence. This court has had occasion to consider that question before and has rendered decisions supporting the contention made. Nichols v. Union Stock Yards & Transit Co., 193 Ill. App. 14 (where the bailed goods had been destroyed by fire); Glende v. Wicker Park Garage, 198 Ill. App. 584 (where the bailed article was stolen). "We have gone into this question again, in connection with the case at bar, and have come to the conclusion that the better reasoning and the weight of authority is that where the bailor makes out a prima facie case of negligence against the bailee, by showing that the goods bailed have not been returned on demand, such prima facie case is not overcome by a showing, on the part of the bailee, to the effect that the goods have been burned or otherwise destroyed or have been stolen, but before the bailor’s prima facie case can be said to be overcome, the bailee must further produce evidence tending to prove that such burning or loss or theft was occasioned without his fault.

In the Glende case, supra, this court merely cited and followed the Nichols case in 193 Ill. App. 14. In the latter case, this court referred to a number of authorities. One was 2 Kent’s Commentaries, p. 587, where the author says that when the loss of a bailed article is shown, “the proof of negligence or want of due care is thrown upon the bailor, and the bailee is not bound to prove affirmatively that he used rea- ■ sonable care.” In a footnote at that point in Kent’s Commentaries, reference is made to the case of Case v. Boston & L. R. Co., 14 Allen (Mass.) 448, where the majority of the court held to the contrary that, in an action of contract against warehousemen for not delivering goods received by them upon demand, the burden was on them to show that the goods were lost without their fault. This footnote also refers to the Illinois case of Cumins v. Wood, 44 Ill. 416, in which a similar decision was rendered. Reference will be made to this case later.

In the Nichols case, supra, this court cited several cases decided by the courts in New Tork, Michigan and Iowa, supporting the rule followed in that ease. We have again examined those decisions, and with every respect for the learning of the courts which rendered them, we are compelled to differ with them.

In holding in the Nichols case, supra, that the defendant overcame the plaintiff’s prima facie case merely by showing that the goods had been lost through a fire, this court also cited 3 Amer. & Eng. Encyc. of Law (2nd Ed.) p. 751, where the author has a statement supporting that proposition, saying that proof of fire or theft shows the loss to have been occasioned by a “cause which prima facie exonerates” the bailee, citing a number of cases but none by the courts of Illinois.

The fallacy of such a doctrine seems apparent. Why should the bare showing that the loss of the bailor’s goods was through a robbery of the bailee’s premises or their destruction by fire, “prima facie exonerate” the bailee when it may well be that a loss from either of these causes may have been due directly to the carelessness and negligence of the bailee himself? The two paragraphs in 3 Amer. & Eng. Encyc. of Law, previous to the one cited in the. Nichols case, do refer to some Illinois decisions, and in our opinion those cases announce both the correct and sound rule and the rule by which this court is bound. Those paragraphs point out that the older decisions held that the loss of or injury to bailed goods raised no presumption of negligence on the part of the bailee; that the law never presumed anyone to be negligent but would rather attribute the fact of loss or injury to excusable causes and that, under those decisions, it was not enough for the bailor to prove the loss or injury, but it was held that he must go further and show that the same occurred by the bailee’s negligence. Then the author proceeds to point out that: “The rule adopted in the more modem decisions is that the proof of loss or injury establishes a sufficient prima facie case against the bailee to put him upon his defense. When chattels are delivered to a bailee in good condition and are returned in a damaged state, or not returned at all, the law will presume negligence to have been the cause, and cast upon the bailee the burden of showing that the loss did not occur through his negligence, or if he cannot affirmatively do this, that at least he exercised a degree of care sufficient to rebut the presumption of it,” citing Baren v. Cain, 15 Ill. App. 387; Cumins v. Wood, 44 Ill. 416; Funkhouser v. Wagner, 62 Ill. 59; and Burlingame v. Horne, 30 Ill. App. 330. The first and the last two of those cases did not involve losses by either fire or theft, but in Cumins v. Wood, 44 Ill. 416, the loss of goods in the hands of the bailee had apparently been brought about by theft. A fire was also involved in that case. Certain articles of household furniture had been stored by the plaintiff bailor with the defendant bailee. Certain of these goods had been returned by the latter to the bailor in a damaged condition, apparently as the result of a fire in the bailee’s premises. It is clear from the opinion that other articles involved in that case had either been burned up or stolen, but the court pointed out that no attempt had been made to show they had been destroyed by the fire and that the presumption from the proof was “if the carpets were not taken away by an employee of the defendants, that they were taken by some person to whom the defendants improperly permitted access to the place where the goods were kept.” And in that case, involving a loss either by fire or theft, more likely the latter, the court saw no reason to distinguish the loss from one occasioned by any other cause. In the course of its opinion, the Supreme Court said: “In cases of this sort, it would be very difficult for the plaintiff to show in what way the injury and loss had occurred, or that they had occurred by the actual negligence of the defendants or their employees. The plaintiff would not know what persons had been engaged in the defendants’ warehouse nor where to find the testimony necessary to support his action. On the other hand, the defendants would know, or ought to know, what persons had had access to the goods, and could easily show that proper care had been exercised in regard to them, if such was the fact. For this reason we hold it the more reasonable rule, when the bailor has shown he stored the goods in good condition, and they were returned to him in a damaged state, or not returned at all, that the law should presume negligence on the part of the bailee, and impose on him the burden of showing he has exercised such care as was required by the nature of the bailment.” Another case involving bailed goods lost by reason of being stolen while in the possession of the bailee, where the same rule was followed, is Chicago & A. R. Co. v. Peoria & U. Ry. Co., 157 Ill. App. 583.

The ruling made in the Nichols case, supra, which we now consider erroneous and recede from, apparently had its origin, so far as the Illinois cases are concerned, in the case of Standard Brewery v. Hales & Curtis Malting Co., 70 Ill. App. 363, which this court cited and relied upon in the Nichols case. There, this court said that if the bailee proves the loss of bailed goods “to have occurred from some cause which prima facie exonorates him, it is sufficient. Thus, if he proves the loss was occasioned by * * * fire * * * the burden is again shifted to the bailor to prove the bailee’s negligence.” This is a quotation from 3 Amer. & Eng. Encyc. of Law (2nd Ed.) 751, which the court there cites and which was again cited in the Nichols case, supra. The court further cites in the Standard Brewery case, in support of this proposition, the decision of our Supreme Court in Russell v. Koehler, 66 Ill. 459. When that case is examined it is found not to be in point, for it is shown that the bailed goods there involved were consumed in, the Chicago fire, in October, 1871. The court observed in that case: “No ordinary prudence could guard against or prevent the destruction of property during a calamity so fearful as the fire in Chicago, in October, 1871.” In the brief opinion in that case, no mention whatever is made of the presumption of negligence the court will indulge or the burden of proof it will require. The Standard Brewery case, supra, was affirmed by our Supreme Court in 171 Ill. 602, and it there appears that the question presented here was not involved, for there the question was whether the bailee had retained barley delivered to it by the bailor to be malted, an unreasonable length of time after it had been malted, so as to make it liable for its loss by ñre. The questions of negligence connected with the actual loss or of burden of proof are not mentioned in the decision.

Another case cited in the Nicols case, supra, as supporting the decision there made, is the case of Ford Motor Co. v. Osburn, 140 Ill. App. 633. That case involved the same question presented in the Standard Brewery case, namely, whether the article there bailed had been unreasonably detained after repairs on it had been completed, and the court cited the Standard Brewery case and followed it.

Another Illinois case cited in the Nichols case is the case of Bryan v. Chicago & A. R. Co., 169 Ill. App. 181. There the court held as this court did in the Nichols case, citing in support of that holding, the case of Chicago, R. I. & P. Ry. Co. v. Kendall, 72 Ill. App. 105. Upon turning to the latter case we again find that it does not support the proposition laid down in the Bryan case and in the Nichols case, for in the Kendall case the court said: “In the case under consideration, the fact of the fire appearing and that appellant (the bailee) was in no manner responsible for its origin, the burden was then .upon appellee (the bailor) to show afBrmatively that appellant was guilty of negligence in order to establish liability.”

The defendant has called our attention to the decision of this court in A. C. Becken Co. v. Ottawa Piano-phone Co., 217 Ill. App. 49, where the rule laid down in the Nichols case, supra, is followed and that case and the Illinois cases cited in the Nichols case are again cited. That case may be distinguished from the one now before us. There the defendant endeavored to show that a fire which consumed its factory, and consumed certain bailed goods, was not attributable to any negligence on its part, which evidence was erroneously excluded by the trial court. In the course of the opinion rendered in that case, some things were said with which we cannot agree and which are contrary to the decision of the case at bar, outlined in this opinion.

In Edgerton v. Chicago, R. I. & P. Ry. Co., 146 Ill. App. 199, where the defendant railway company occupied the position of a warehouseman or bailee, at the time the articles there involved were apparently stolen, the ruling of our Supreme Court in Cumins v. Wood, supra, to the effect that the burden was on the bailee to rebut the presumption of negligence by showing “that he had exercised such care as was required by the nature of the bailment,” was cited and followed. Again in St. John v. Illinois Cent. R. Co., 168 Ill. App. 599, involving the loss of a car of hay by fire, while it was in the defendant’s possession in the capacity of a bailee, the court held that it was incumbent on the defendant to show that the loss was not occasioned by its negligence, citing the Cumins case.

In McCurrie v. Edward Hines Lumber Co., 178 Ill. App. 617, the defendant was held to occupy the position of a bailee of a certain wagon, the property of the plaintiff. Upon demand, it was not delivered nor was its absence accounted for. This court cited the Cumins case and followed the ruling there laid down.

The facts involved in Schaefer v. Washington Safety Deposit Co., 281 Ill. 43, would indicate at least the possibility of the theft of the contents of plaintiff’s safety deposit box in the defendant’s vault. The property in question was missing when the plaintiff opened her box and its absence was not accounted for. The Supreme Court held that under such conditions it could see “no reason to depart from the ordinary rule,” imposing on the bailee the obligation of showing that he exercised the degree of care required by the nature of the bailment, citing and reaffirming the decision in the Cumins case. In announcing the general rule as above quoted in Miles v. International Hotel Co., 289 Ill. 320, the Supreme Court refers to no exception to that rule in cases involving a fire or a theft and cites the Cumms case, with approval and in support of the rule, although the latter case did involve a fire and an apparent theft..

The case of Dunne v. South Shore Country Club, 230 Ill. App. 11, involved the loss of a fur coat, clearly by theft, while in the possession of the defendant in the capacity of bailee. The trial court gave an instruction to the jury to the effect that in case of failure to deliver a bailed article upon demand, “the law presumes negligence on the part of the bailee and imposes upon such a bailee the burden of showing that such bailee exercised such care in respect to the property as was required by him under the circumstances surrounding the bailment.” This court in approving that instruction, said that “it certainly is the law that, after the bailor has made out a prima fade case, it then becomes the obligation of the bailee to introduce evidence to show that he exercised such care As was required by the nature of the bailment. ’ Cumins v. Wood, 44 Ill. 416.” In using that language we clearly distinguished between burden of proof and the burden of proceeding with the proof. Of course the burden of proof is on the plaintiff to prove his or her case, and it remains there throughout the trial and never shifts to the defendant. That is true on the issue of negligence in a bailment case. But when the plaintiff has made out a prima, facie case, as is done in a bailment case merely by showing delivery of the bailed goods to the bailee and failure of the latter to return them on demand or delivery in a damaged condition, then the burden of proceeding with the evidence falls on the defendant and remains there until the plaintiff’s prima facie case is overcome. The real question is, what must the defendant show, in order to overcome the prima facie case of negligence made out by the plaintiff? Is it sufficient to show the bare fact that the bailed articles have been burned up or stolen while in the bailee’s possession? Obviously not. They may have been lost in either of those ways by reason of the gross negligence of the bailee himself or his servants. If the bailed articles have been burned up or stolen while in the bailee’s possession, the prima facie case made out by the plaintiff’s proof that the bailee has failed to return the articles upon demand is not met or overcome unless the bailee shows that the fire or robbery was not due to his carelessness or that he has exercised the degree of care called for by the nature of the bailment. The reasons for that rule are clearly set forth by our Supreme Court in the Cumins case and we have already quoted them.

In our opinion, the decision of this court in the Nichols case was due to a misapprehension of what the Supreme Court said in the Cumins ease. We believe it may not be reasonably said that the Supreme Court in that case, “apparently recognizes the rule that the presumption of negligence is rebutted where it appears that the goods have been destroyed by fire.” All the Supreme Court said was that “perhaps the presumption of negligence was sufficiently rebutted by the evidence in regard to the fire.” What that evidence was is not stated, in the opinion in the Cumins case. The Supreme Court would not have used that language in that case, in our opinion, if the thought to be conveyed was that the presumption of negligence was rebutted by the mere fact of the fire. What they said was that it was rebutted by the evidence about the fire.

In the Nichols case, this court made bold to say that it thought the rule it there followed was “not a good one * * * that it is illogical and unreasonable to hold that the presumption of negligence in cases of this kind is rebutted by the bailee, by simply proving that the property bailed was destroyed by an ordinary fire which broke out on the bailee’s own premises, without regard to the care exercised by the latter to prevent the fire or to save the property after the commencement of the fire.” We agree with that statement and would make it with regard to cases where the bailed property has been stolen from the bailee’s premises.

Did the evidence introduced in the case at bar, in the defendant’s behalf, show such a degree of care on his part as to overcome the prima facie case admittedly made out by the plaintiff? In our opinion, it did not. All that is shown by that evidence is that the defendant’s manager put the plaintiff’s car in the garage and when he left he locked the garage, but when he returned, a few hours later, the rear door of the garage was open and the car was gone, although there was nothing to indicate that anybody had forced an entrance into the garage. The manager testified that he “bolted the doors solid. They had chains on both sides and the chains were on.” It is not clear which doors he was referring to. Of course, there had to be at least one door of entrance which was not bolted, and chained from the inside. What kind of a lock that door had is nowhere stated nor who or how many people had keys to that door. Who the employees of the defendant were, or how many he had, is not stated, nor did he testify to anything, while on the stand, as to what care he exercised in selecting them. Presumably, the garage was fitted with windows. No testimony was given as to them nor as to their fastenings. For these reasons, and others of similar character which might be pointed out, we are of the opinion that the defendant’s evidence fell short of .showing that he had exercised such a degree of care as the circumstances of the bailment called for, and, therefore, the prima, facie case made out by the plaintiff was not overcome.

For the reasons given the judgment of the municipal court is affirmed.

Judgment affirmed.

Taylor and O’Connor, JJ., concur.


author: Mr. Justice O’Connor

text:
    J. L. Sheets, Appellee, v. Star Cleaners & Dyers, Inc., et al., Appellants.
    Gen. No. 29,850.
    1. Bailments — prima facie ease of negligence from failure to return. Owner of suit left with dry-cleaner held to make out a prima facie case of negligence by showing failure of defendant to return suit on demand.
    2. Negligence — presumption arising from extraordinary accident. Where accident resulting in injury was one that did not ordinarily occur, proof of injury occurring as proximate result of an act which under ordinary circumstances would not if done with due care have injured any person or property, is enough to make out a presumption of negligence.
    3. Bailments — exploding of dry-cleaning machine prima facie evidence of negligence. The mere blowing up of a machine in a dry-cleaning establishment, resulting in loss of plaintiff’s suit, was prima facie evidence of negligence of the dry-cleaner, res ipsa loquitur applying.
    Appeal by defendants from the Municipal Court of Chicago; the Hon. Asa G. Adams, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1924.
    Affirmed.
    Opinion filed October 28, 1925.
    William: Levine, for appellants.
    Leo J. Hassenauer, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against the defendants to • recover the value of a suit of clothes which he had delivered to them for cleaning and which they failed to return. The claim of plaintiff is _ based on the charge that defendants were negligent in the cleaning of the suit. The defendant, the Star Cleaners & Dyers, filed an affidavit of merits in which it denied that it was guilty of the negligence charged. The case was tried before the court without a jury and there was a finding and judgment in plaintiff’s favor against both defendants for $40, being the value of the suit of clothes as found by the court. The evidence shows that plaintiff took a suit of clothes and delivered it to the defendant, Freudian, for the purpose of having it cleaned and pressed; that Freudian delivered it to the defendant, the Star Cleaners & Dyers, for the purpose of having it cleaned. The suit was not returned by the Star Cleaners & Dyers, because while it was being cleaned, the machine in which it was placed, in the cleaning operation, exploded and destroyed the suit.

When plaintiff showed by evidence that he had delivered the suit for the purpose of having it cleaned and that it had not been returned, he made out a prima facie case of negligence. The defendant, the Star Cleaners & Dyers, undertook to overcome this presumption of negligence by calling its manager, who testified that the suit had been delivered to it for cleaning and was placed with other garments in a cleaning machine, which was operated by his company. He further testified that as he was standing near the machine in the benzine room there was an explosion; that the machine blew up and all the garments that were in the machine were burned; that he did not know what caused the explosion; that the machine was the same kind of machine that was used by other cleaning establishments in Chicago, and that the Star Cleaners & Dyers used the same cleaning process as that used by others engaged in the same business and that the machine was made by a certain machinery company.

The defendants contend that the trial judge held that they were insurers. We have carefully examined the record and find nothing that would warrant this contention. The charge made against the defendants was based on the ground of negligence. We think it clear under the law that the evidence offered on behalf of the defendants showed that the Star Cleaners & Dyers was guilty of negligence as a matter of fact. The testimony of the manager of the defendant, Star Cleaners & Dyers, is that the machine, which was used at the time in question and the manner of its operation were those in use by all others engaged in similar work in Chicago. This being undisputed, it is self-evident that such accidents did not ordinarily occur and the rule of law in this State in such cases that proof of an injury to person or property occurring as the proximate result of an act, which under ordinary circumstances would not, if done with due care, have injured any person or property, is enough to make out a presumption of negligence. And this is held to be the rule, even where no special relationship like that of passenger and carrier exists. North Chicago St. Ry. Co. v. Cotton, 140 Ill. 486; Larson v. Central Ry. Co., 56 Ill. App. 263. The furnishing of the machine in question and the operation of it were under the management and control of the defendant, the Star Cleaners & Dyers. In the ordinary course of things, it is apparent that such machine does not explode and destroy the clothing. The rule res ipsa loquitur, therefore, applies and the accident itself, was prima facie evidence of the Star Cleaners & Dyers’ negligence. New York Cent. & St. L. R. Co. v. Blumenthal, 160 Ill. 40; see also Kaumanns v. Northwestern El. R. Co., 236 Ill. App. 637; Chicago Union Traction Co. v. Newmiller, 215 Ill. 383; Alexander v. Nanticoke Light Co., 209 Pa. St. 571; Alton Railway & Illuminating Co. v. Foulds, 81 Ill. App. 322.

The cases cited by the defendants, holding that where the bailee shows the property bailed to have been destroyed by fire releases the bailee from responsibility, are not in point, because in those cases the forces causing the destruction of the property by fire were not within the control of the bailee, while in the instant case the machine in question was under the management and control of the bailee. What we have said assumes the machine in which the clothing was being cleaned was of the highest and most approved type, and that it was being operated properly, so that the defendant, the Star Cleaners & Dyers, is liable under the law, assuming the facts to be as contended by its counsel. But such assumption of facts is not borne out by the record, because there is no evidence that the machine had been inspected prior to the time in question or any other evidence to show that it was being properly operated. Nor does the evidence show that the machine was of the most approved type, so that neither under the law nor the facts can the defendant, the Star Cleaners & Dyers, escape liability.

The judgment of the municipal court of Chicago is affirmed.

Affirmed.

Thomson, P. J., and Taylor, J., concur.