author: Mr. Justice IIebel

text:
    Carol Dregne, Appellant, v. Five Cent Cab Company et al., Defendants, Yellow Cab Company, Appellee.
    Gen. No. 41,801.

      Opinion filed March 18, 1942.
    Rehearing denied April 1, 1942.
    Hopkins, Sutter, Halls & DeWolee, of Chicago, for appellant; Donald J. DeWolee, William Gf. Blood and T. Eugene Foster, all of Chicago, of counsel.
    Kirkland, Fleming, Creen, Martin & Ellis, of Chicago, for appellee; Howard Ellis, David Jagkbr, Charles M. Bush and John M. O’Connor, Jr., of Chicago, of counsel.
   Mr. Justice IIebel

delivered the opinion of the court.

This is an appeal by the plaintiff from a judgment in favor of the defendant, Yellow Cab Company, entered by the circuit court of Cook county. At the close of plaintiff’s evidence, the court granted a motion for a directed verdict by Yellow Cab Company, and the jury, pursuant to the court’s instruction, returned a verdict of not guilty upon which judgment was entered.

Plaintiff brought suit to recover damages for injuries sustained while she was a passenger in a taxicab which ran into the supporting pier of a railroad viaduct in Evanston. There were four other defendants, which are not involved in this appeal; (1) The Five Cent Cab Company; (2) Chicago Yellow Cab Company, Inc., (3) the trustee of the Chicago and North Western Railway Company, and (4) Chicago and North Western Railway Company. Judgment was entered for plaintiff against Five Cent Cab Company for $7,500, the amount of damages assessed by the jury. Neither Five Cent Cab Company nor plaintiff has appealed from that judgment. A verdict was directed for Chicago Yellow Cab Company, Inc., judgment was entered on the verdict, and plaintiff has not appealed with respect to Chicago Yellow Cab Company, Inc. The jury found the trustee of the North Western Railway and the Railway Company not guilty, and judgment was entered on that verdict. Plaintiff has not appealed with respect to those defendants.

This appeal relates solely to Yellow Cab Company. Plaintiff asks for a reversal and new trial against the defendant because of alleged errors of the trial court hereinafter more particularly set forth.

The facts appearing in this case are that plaintiff, Carol Dregne, a young woman 22 years old, went to a moving picture show on Howard street, Chicago, on the evening of March 18, 1937. With her were two other young women, Edna Simonson and Minerva Louison. All three were employed and lived in Evanston. When they came out of the theatre about midnight they hailed a taxicab with the name “Five Cent Cab Company” painted on it. They gave the driver the nearest address, the home of Miss Simonson, in the south part of Evanston, where they were driven and where she left the cab. The other young women lived in the northwest part of Evanston, and they then gave the driver their addresses. The cab proceeded north on Ridge avenue and turned west on Emerson street, and while proceeding west on Emerson street, without any slowing down or warning, the cab crashed into the east end of the supporting pier of a viaduct of the North Western Railway Company which crosses Emerson street just west of Ashland avenue. There was a warning signal on the pier of the “button reflector” type, and the street lights were on. The driver’s negligence in failing to keep a proper look-out was the cause of the accident, and no witnesses were called by any of the defendants to prove otherwise.

The plaintiff was seriously injured. Her condition was critical for several days, and she lived only because of the splendid surgical and medical care which she received at the Evanston Hospital, where she was taken immediately after the accident. Her skull was punctured just above the base of the nose in such a manner that the attending surgeons were able to see through the torn dura into the brain tissue itself. The base of plaintiff’s nose was crushed; her nose and forehead, just above the left eye, were permanently disfigured; her upper front teeth were knocked out; her frontal sinuses were crushed in; her sense of smell was practically destroyed; and she sustained severe lacerations and bruises. She was confined to the Evanston Hospital almost a month and was unable to return to work until about six months thereafter. The jury assessed her damages at $7,500.

The Five Cent Cab Company made no motion for a new trial, made no motion for a remittitur; and the nature and extent of plaintiff’s injuries were at no time seriously in issue. The driver’s negligence and plaintiff’s injuries were established beyond question, and these facts were not in issue on the motion for a directed verdict. The only issue on that motion — and the principal issue of this appeal — was whether Yellow Cab Company should be held accountable for the negligence of Five Cent Cab Company. Plaintiff’s suggestion and contention is that the evidence and the reasonable and'natural inferences to be drawn from it show the Five Cent Cab Company was, at the time of the accident and at all times throughout its existence, from its organization, July 1, 1935, to the termination of its business in January or February 1939, a dummy corporation or shell, that it and its affairs were so organized and controlled by the defendant Yellow Cab Company as to make it merely an agency or instrumentality of Yellow Cab Company, and that Yellow Cab Company was responsible for the tortious act of Five Cent Cab Company the same as if a charter never had been .granted to that company.

From the evidence introduced at the trial, it appears that on September 28, 1921, Yellow Cab Company entered into a 20-year recorded lease for premises on the corner of Chicago and Kenney avenues in Evanston, at a total rental of $220,000, payable in instalments of $916.67 a month. The lease called for the construction by the lessor of a large garage, and a full year’s rental, $11,000, was deposited in escrow as security for rent. Yellow Cab Company used this garage as the headquarters for its Evanston fleet of over 100 taxicabs continuously from November 1, 1921, to July 1, 1935. The superintendent of the garage throughout this period was a man named William J. Hunter. The garage mechanic throughout this period was a man named Mike Conway. The floor superintendent in charge of drivers from 1931 to July 1, 1935, was a man named Bernard J. Schoenfield, a Yellow Cab employee of long-standing, whose employment began with the organization of the company in 1915. Prior to his work at the Evanston garage Schoenfield had been a Yellow Cab starter at the South Shore Country Club. The cashier of the Evanston garage for the period immediately preceding July 1,1935, was a man named Robert J. Mooney, but just how long Mooney had held that position does not appear from the evidence.

It appears that by the Spring of 1935, the situation in Evanston had become unsatisfactory from the Yellow Cab Company’s standpoint, and that the company was losing money on the operations from the Evanston garage. It had a lease with a rental of $11,000 a year, with six more years to run. In the Spring of 1935, the Yellow Cab Company decided to change the method of its Evanston operations.

On July 1,1935, an Illinois charter was issued to the Five Cent Cab Company, the incorporation papers for this new company having been prepared by an attorney for Yellow Cab Company, who had been present at Yellow Cab Company’s director’s meetings where abandonment of operations from the Evanston garage was decided upon. This attorney (a partner of the law firm which defended Yellow Cab Company on the trial of this cause) was called as a witness by plaintiff and was asked with whom she conferred in connection with preparing the incorporation papers of the Five Cent Cab Company. She answered, “ ... it was Mr. Samuels, Vice-President, or Mr. Bieze, Secretary, (of Yellow Cab Company) called me up and asked me if I would form a corporation for Mr. Hunter, who was then an employee of theirs. ’ ’

The initial and only, capital of the new company was $2,500, which remained unchanged throughout the period the company remained in business, namely, from July 1,1935 to February 1939. The incorporators were William J. Hunter, Bernard J. Schoenfield and Mike Conway — the garage manager, the floor superintendent and the mechanic of the Evanston garage of Yellow Cab Company for many years prior to the incorporation of the new company. The subscribers to the capital stock, according to the company’s minute book, were the same three men, the minutes reciting that they subscribed and paid for common shares as follows:

Name No. of shares Amount
William J. Hunter.......... 84 $840
Bernard J. Schoenfield...... 83 $830
Mike Conway.............. 83 $830

The stock certificates for the shares were issued in their names in the amounts subscribed. The minute book and stock certificate record show these shares outstanding continuously after July 1, 1935, in the names of these three men. Thereafter no transfers were made or additional shares issued. These same three men were the directors and the only directors through the period the company remained in business, and were the only officers during that period. Hunter was president, Schoenfield, vice-president and treasurer, and Conway, secretary. Schoenfield and Conway testified at the trial. Hunter died in December 1939, over a year before the trial.

Schoenfield, at the time he testified, was an employee of Yellow Cab Company, employed as a “starter” at a hotel cab stand in Chicago. When the Five Cent Cab Company ceased operations early in 1939, Schoenfield returned at once to the employment of Yellow Cab Company. Hunter, likewise, returned to the employment of Yellow Cab Company early in 1939. After Five Cent Cab Company ceased operations, Conway went to the Yellow Cab Company’s main offices in Chicago, in February 1939, and applied for reemployment but his application was rejected. At this time he turned in the tools he had used as mechanic of the Evanston garage, and Yellow Cab Company gave him its written receipt for them. Thereafter he obtained employment as a janitor of an apartment building and was so employed at the time of the trial. Both Schoenfield and Conway testified that they were not stockholders of the Five Cent Cab Company, and that they had never put any money into the business. They both testified that they were directors and officers in name only, and that they simply “had a job” at $30 per week. They testified that they had attended no director’s meetings; that though they were supposed to be the treasurer and secretary of the company neither of them had anything to do with the books and records of the company; that they knew nothing of its financial or corporate affairs; and that they took no part in deciding any of the policies of the company. They performed the same duties after July 1, 1.935, they had performed for years prior thereto, namely, the duties of floor man and garage mechanic.

It is further called to the attention of this court that on June 30, 1935, the Yellow Cab Company removed its cabs from the Evanston garage. That night Mike Conway went to the Racine avenue garage of the Yellow Cab Company, in Chicago, and placed license plates on a fleet of used repainted cabs bearing the name “Five Cent Cab Company.” The next morning, July 1, 1935, these cabs appeared at the Evanston garage, the day operations began under the name “Five Cent Cab Company.” Title to the cabs was transferred from Yellow Cab Company through an intermediary named Roy F. Hale, a Yellow Cab Company employee and salesman, to Five Cent Cab Company. A chattel mortgage covering all the cabs and their equipment was executed. This mortgage called for a down payment of only $10 a cab. The total consideration for the 30 cabs including meters and other equipment was $4,500 or $150 a cab. Thereafter, from time to time, further cabs and meters were acquired by Five Cent Cab Company from Yellow Cab Company, and in each instance a chattel mortgage was taken by Yellow Cab Company. After the first transfers the use of an intermediary conduit of title was abandoned and the transfer and mortgage back were made directly between Yellow Cab Company and Five Cent Cab Company. All of the chattel mortgages provided that if the mortgagee at any time felt insecure or unsafe it might at once repossess the mortgaged property. The number of cabs in operation under the Five Cent Cab Company name between July 1935, and February 1939, varied from time to time, beginning with 30 and reaching as high as 55.

The 20-year lease to Yellow Cab Company of the garage premises by its express terms could be assigned or sublet without the consent of the lessor. Nevertheless, Yellow Cab Company did not assign or sublease the premises to Five Cent Cab Company. The minutes of Five Cent Cab Company of July 1,1935, contain this resolution, “Further resolved, that this corporation shall assume and make payment of the rent provided in said lease, i. e. $11,000 per year, and comply with all of the terms of said lease in reference to carrying its own fire insurance, compensation insurance and in all other matters.” This lease remained outstanding at the time of trial, and Yellow Cab Company always paid the rent to the lessor. For a short time Five Cent Cab Company may have paid Yellow Cab Company $300 a month rental, but it appears that Yellow Cab Company supplied, and paid for, the garage premises necessary for operation of the Five Cent Cab Company business. The garage equipment, other than cabs, such as tools, etc., which was in the garage prior to July 1, 1935, was left there. The telephone of the Yellow Cab Company remained in the premises. After July 1, 1935 Five Cent Cab Company handled calls for Yellow Cabs by relaying calls-to other Yellow Cab stands or garages. On June 28, 1935, Yellow Cab Company applied for a new telephone with a new number to be installed in the Evanston garage, and this phone and number were assigned to Five Cent Cab Company. Plaintiff points out that Yellow Cab Company obtained telephone service for Five Cent Cab Company and used its credit for that purpose. After July 1, 1935, the Yellow Cab Company listing in the telephone directory was continued in its own name and the Evanston address of this garage, and the Evanston address of this garage was continued in the directory as an address of Yellow Cab Company.

. After July 1, 1935, the important personnel continued unchanged. Hunter, the manager of fourteen years standing, remained in charge. The floor superintendent, Schoenfield, continued with the same job. The head mechanic, Conway, stayed on with the same job. Mooney, the cashier, likewise retained the same job.

It appears from the plaintiff’s statement of facts that plaintiff’s attorneys made diligent efforts to obtain the books and records of Five Cent Cab Company, both by a pre-trial deposition for discovery and by obtaining an order for production of books and records under Eule 17 of the Supreme Court Eules of Practice and Procedure. The motion for production was objected to and fully argued prior to the entry of the order requiring production. After the order had been entered, production was avoided by the filing of an affidavit by one of the attorneys of record for Five Cent Cab Company, stating under oath that he had made a diligent search for the books and records of this company and that they had disappeared and were nowhere to be found. Upon the last day of the trial the law firm representing Yellow Cab Company produced in court two of the records of Five Cent Cab Company, namely, the minute book of the company and the stock certificate record. The two living officers and directors of Five Cent Cab Company both testified that they had never had custody or possession of any of the books or records of the company; had no knowledge of the entries or of the whereabouts of such records and had never had anything whatever to do with such records, notwithstanding the fact, that in name at least, these men were the treasurer and the secretary of the company.

While the books of account and financial records were not obtainable, the minute book, produced on the last day of the trial, does contain material evidence with respect to the history of operations beginning July 1, 1935. The minute book recites that on the day the charter issued, July 1, 1935, a first meeting of the board of directors was held. Two resolutions are contained in the minutes of this meeting; first, a resolution providing that the compensation of Hunter, Schoenfield and Conway should be $50 per week for Hunter, $30 per week for Schoenfield, and $30 per week for Conway; and second, a resolution providing that all checks or other orders withdrawing funds from the company’s bank account should be signed by the treasurer and countersigned by either the president or the secretary. These minutes, and in fact all of the minutes, were prepared by an attorney who also represented Yellow Cab Company, and the minute book and the stock certificate record of the Five Cent Cab Company were at all times retained in the physical custody and possession of this attorney and were never in the possession of Conway, the secretary of the company, or either of the other officers. The next entry in the minute book is of the annual meeting of stockholders on January 13, 1936, at which meeting the same men were reelected directors. There was no report of operations for the year just ended. The minute book also contains minutes of an annual meeting of directors on the same day, at which the same men were reelected to the same offices. The only other action taken by the directors, as recited by the minutes, is the fixing of the salaries of these three men at the same figures. The next entry is the minutes of a special meeting of the directors on March 18, 1936, where the purchase of 15 second-hand cabs at prices of $92.50 for five of the cabs and $72.50 for ten of the cabs was ratified. No down payment was to be made for these cabs, and the first payment on the purchase price was not to be made until nine months after the date of acquisition. The next entry is the minutes of a special meeting of the board on December 23, 1936, at which additional compensation for the year 1936 was authorized, as follows; $100 to Hunter, $50 to Schoenfield, $50 to Conway and $50 to Mooney. The next entry is the minutes of the annual meeting of stockholders on January 11,1937, at which the only action taken was the reelection of the same directors, there having been no report of operation for the prior year. On the same day there was an annual meeting of directors at which the same officers were reelected and their compensation again fixed for the coming year at the same figures. The next entry is the minutes of an annual meeting of stockholders on January 10, 1938, at which the same men were reelected directors. There was no report of operation for the prior year. On the same day, the minutes show that the annual meeting of directors was held and the same officers were reelected, the only other action having been to fix their salaries again at the same amounts. ' The final entry in the minute book is the minutes of a special meeting of directors, dated January 24, 1938, containing a resolution authorizing the officers to purchase 25 used taxicabs at a price of $275 per cab, and further authorizing the officers to execute conditional sales contracts or chattel mortgages as security for the purchase price “in such form as may be satisfactory to the seller of such taxicabs.” Chattel mortgages covering the purchase of 19 of these cabs recite that they are made pursuant to this resolution of January 24, 1938. The total stated consideration for the 19 cabs was $5,225. There was to be no down payment, but payments were to be made monthly from March 1,1938, to September 1, 1938, and the monthly payments amounted to $855 per month, exclusive of interest. While the name of the seller and mortgage holder does not appear in the minute book, it does appear in the recorded chattel mortgages, and the seller and chattel mortgage holder was Yellow Cab Company. The foregoing entries are the only entries contained in the minute book after July 1, 1935.

It further appears that in the month of January 1939, the Five Cent Cab Company went out of business. Hunter and Schoenfield at once returned to the employment of Yellow Cab Company. Conway applied for ■ such employment and was turned down. Yellow Cab Company immediately repossessed the cabs, and miscellaneous equipment such as tools and license plates were turned over to Yellow Cab Company and its receipt issued therefor. Plaintiff points out that the method of operations had come to an end, and when approximately a year before the trial the court entered an order requiring production of the books and records of Five Cent Cab Company, its attorney filed an answer to the rule to show cause, sworn to by him, stating among other things that subsequent to the date of the accident, ‘ ‘ The Five Cent Cab Company became insolvent and ceased doing business.” The minute book of the company contains no entries whatever after January 24, 1938.

The plaintiff’s contention is that the evidence and the reasonable and natural inferences to be drawn from it show the Five Cent Cab Company was, at the time of the accident and at all times throughout its existence, from its organization on July 1, 1935 to the termination of its business in February 1939, a dummy corporation or shell, that it and its affairs were so organized and controlled by the defendant Yellow Cab Company as to make it merely an agency or instrumentality of Yellow Cab Company, and that Yellow Cab Company was responsible for the tortious act of Five Cent Cab Company the same as if a charter never had been granted to that company. As a result, it is further contended that the law imposes liability, irrespective of a separate incorporation, where the evidence shows that justice requires the imposition of liability upon the person in fact and in reality in control of a dummy corporation, citing a number of cases. In the consideration of this contention it is well to have before us the law applicable to the facts as they appear in this record. This court, in the case of McDermott v. A. B. C. Oil Burner Sales Corp., 266 Ill. App. 115, reached the conclusion that it is an elementary and fundamental principle of corporation law that a corporation is an entity separate and distinct from its stockholders and from other corporations with which it may be connected, and went on to hold that the fact that the stockholders of two corporations are identical, that one owns shares in another, that they have mutual dealings, will not, as a general rule, merge them into one corporation. However, we there held that the legal fiction of distinct corporate existence will be disregarded when necessary to circumvent fraud, or where the corporation is so organized and controlled, and its affairs so conducted as to make it merely an instrumentality of another corporation. Applying this rule to the facts of the instant case, it would be necessary that there be evidence that fraud has been practiced and that the Five Cent Cab Company was so organized and controlled, and its affairs so conducted as to make it merely an instrumentality of Yellow Cab Company. The authorities hold that the mere fact that the stockholders in two or more corporations are the same, or that one corporation exercises a control over the other through ownership of its stock or through identity of its stockholders, does not make either the agent of the other nor does it merge them into one, so as to make a contract of one corporation binding upon the other, where each corporation is separately organized under a distinct charter. It is necessary that we consider and apply these rules of law to the facts in this record in determining the issues between the parties. It is apparent from the authorities and we venture to say that no corporation acting within its powers has been held liable for the debts of another corporation legally organized, because it controlled such corporation by reason of ownership of its stock, or otherwise, except by reason of contract or on grounds of agency, or of estoppel, or because the controlled corporation has been used in such a way that the maintenance of its charter as a separate and distinct entity would work injustice.

It appears from the opinion in the case of McDermott v. A. B. C. Oil Burner Sales Corp., supra, (cited to this court) that the court there cited the case of Davis v. John R. Thompson Co., 239 Ill. App. 469, and suggested this later case as supporting the theory of the defendant in the instant case. In the Davis v. Thompson case the court said: “Even in cases where a corporation sued owned the whole or practically all of the stock of the corporation which caused an injury, and where such corporation, through the election of its board of directors, had the practical control of the corporation causing the injury, still, unless the corporation sued actually possessed or operated, through its board of directors, the corporation that caused the injury, or there was a joint partnership operation, the corporation sued has been held not liable . . . The mere fact that two corporations may have certain persons who are managing officers in both corporations, in and of itself, will not render one corporation liable for injuries caused by the other.” So, in the discussion of the facts before us, it does not appear that Yellow Cab Company owned any of the capital stock of Five Cent Cab Company, nor was there any such ownership as to justify this court in concluding, by reason of any such ownership, that a relationship of agency existed between the two corporations. There was no corporate contract entered into or contractual interest existing between the corporations, nor is there any element shown which would indicate that fraud was practiced by the use of the Five Cent Cab Company corporate entity. The Yellow Cab Company’s only interest, so far as we can find from the evidence, was its contractual interest by reason of the chattel mortgages securing the unpaid purchase price of taxicabs sold to Five Cent Cab Company. These chattel mortgages were for the protection of Yellow Cab Company for the amount due from Five Cent Cab Company on the purchase of these taxicabs, and, of course, contained the provision that if the mortgagee at any time felt insecure it had the right to take possession of the mortgaged property.

From the evidence as detailed and presented, we can find nothing from which we can determine that there was an estoppel sufficient to justify holding the Yellow Cab Company liable. The plaintiff did not think she was taking a Yellow Cab, nor was there any holding-out by either company that they had any connection with each other.

The facts appearing- in this record with all inferences arising- therefrom are to be considered in the light most favorable to the plaintiff, the party against whom the motion for directed verdict is directed. In considering- these facts, with all the legitimate and natural inferences to be drawn from them, it must appear, before holding- that error,was committed in sustaining the motion for directed verdict, that they are sufficient to justify the court in concluding that there had been prima facie evidence presented which should have been submitted to the jury. We have examined this record carefully for the purpose of determining what the Yellow Cab Company did which would justify the submission of the case to the jury. On the contrary, under the evidence and the law as called to our attention, it would seem that the Yellow Cab Company did nothing- which would raise a presumption sufficient that the jury should pass upon it. We are all familiar with the general rule that where defendant makes a motion to instruct the jury to find for the defendant, the court is to only consider whether or not there was any evidence, which, with all reasonable inferences therefrom, viewed in the light most favorable to the plaintiff, tended to prove the material allegations of the complaint or some count thereof. This court in Gillett v. Williamsville State Bank, 310 Ill. App. 395, said:

“Upon a motion of the defendant for a directed verdict, the Court can only determine whether or not there was any evidence, which, with all reasonable inferences therefrom, viewed in the light most favorable to the plaintiff, tended to prove the material allegations of the complaint or some count thereof. If there was such evidence, it became the duty of the Trial Court to deny the defendant’s motion for a directed verdict and to submit controverted issues of fact to the jury, subject only to the giving of proper written instructions by the Court as to the law applicable thereto. A motion to direct a verdict should be allowed if, when all the evidence is considered, with all reasonable inferences to be drawn therefrom in its aspect most favorable to the party against whom the motion is directed, there is a total failure to prove one or more necessary elements of the case.”

When we come to consider as to whether there is any evidence of fraud that would involve Yellow Cab Company, we would like to call attention to the fact that Five Cent Cab Company, at the time of the accident, carried automobile liability insurance in its own name. The fact that later the insurer company was liquidated by the State Director of Insurance, does not act to impose liability where none before existed. The plaintiff further contends that Five Cent Cab Company was organized for the purpose of permitting Yellow Cab Company to get out of its lease. The Yellow Cab Company’s lease was still in force and had not expired when Five Cent Cab Company took possession, but the fact that Five Cent Cab Company took possession did not relieve Yellow Cab Company from its liability to pay rent. The facts in the record show that Yellow Cab Company paid the rent and was still paying it at the time of the trial, and there is nothing to warrant the conclusion that the failure to assign or sublet to Five Cent Cab Company would relieve the Yellow Cab Company of its written liability under its lease.

One of the questions involved in this controversy is as to whether or not William J. Hunter was the controlling factor behind Five Cent Cab Company or whether it was Yellow Cab Company. That Yellow Cab Company was the controlling factor was not borne out by the evidence and witnesses heard at the trial. The two witnesses, Schoenfield and Conway, who testified on this question, stated that Hunter was the boss, that he organized the company and asked them to work for him, and so did the witness Cleveland, who prepared the incorporation papers for Hunter. It does appear from the testimony of witness Conway that he was not favorable to Yellow Cab Company, but, even he testified that Hunter was the boss. Plaintiff further contends that there was a “fair inference” from the testimony of the assistant treasurer and secretary of the Yellow Cab Company that the Yellow Cab Company supplied the original $2,500 in cash capital. When we come to examine this evidence it appears that this witness answered in effect “no” to the question as to whether or not Yellow Cab Company contributed any money to Hunter or the Five Cent Cab Company for the purpose of capital. As a fact, therefore, the evidence does not support the suggestion of plaintiff that the capital was supplied by Yellow Cab Company.

It does appear from the facts in this record that Yellow Cab Company aided certain ex-employees to form their own cab business, as Yellow Cab was closing its Evanston garage because it was losing money there, and wished to salvage something on the rental payments it was bound to make on the vacated garage. There is nothing, however, to indicate that the Yellow Cab Company exercised control over the Five Cent Cab Company, and it is essential, to establish that the Yellow Cab Company had control.over the operations of Five Cent Cab, to prove facts which show that it had such control by an agreement with Five Cent Cab Company covering to some extent the operation of the business. From the facts as we have them in this record, there was no such agreement. As is well said by defendant, a promoter of a corporation is not liable for its torts, and, in promoting a corporation of the character and kind of Five Cent Cab Company, the Yellow Cab would not be liable at the time of this accident for plaintiff’s damages unless it actually controlled the Five Cent Cab Company. That does not appear from this record.

There are other questions called to the attention of this court but in view of the conclusion we have reached it will not be necessary to pass upon them. The judgment that was entered by the court upon the verdict of the jury finding defendant Yellow Cab Company, not guilty, returned pursuant to the court’s instruction at the close of plaintiff’s evidence, is affirmed.

Judgment affirmed.

Burke, P. J., and Kilby, J., concur.


source: Caselaw Access Project

author: Mr. Justice Hebel

license: Public Domain

text:
    Felice Menolascino, Appellee, v. Superior Felt and Bedding Company, Appellant.
    Gen. No. 41,858.

      Opinion filed March 18, 1942.
    Rehearing denied April 1, 1942.
    Irving Gr. Zazove and Samuel J. Winograd, both of Chicago, for appellant.
    Richard Gr. Finn, Gerald T. Wiley and Halfpenny, Stark & Hahn, all of Chicago, for appellee; Richard G. Finn, of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal from a judgment for $5,000 entered in the superior court of Cook county, on November 20, 1940, in favor of plaintiff and against defendant, Superior Felt and Bedding Company, on a verdict of a jury. The pleadings upon which this action was tried, after some corrections and amendments, appear to have been an original complaint which was filed on November 1, 1935, based on the charge that defendant maintained a public nuisance by operating its mattress factory at 2447 West Roosevelt Road, Chicago, in violation of sections 2395 and 3824 of the 1931 City Code, which specially damaged plaintiff’s property, located directly across the street, by reducing its rental value, and also specially damaged the plaintiff by discharging into the air great quantities of lint, dust, fluff, nap, and other dirty and waste substances which rendered the air in the neighborhood unwholesome and unfit to breathe, and that as a result thereof plaintiff’s health was injured in that said substances infected her lungs and sinuses, causing her to spend large sums for medical dare.

On motion of defendant the original complaint was stricken and on December 29, 1936, plaintiff filed an amended complaint making the same charges and the same allegations of injuries and damages as in the original complaint, the only change being that the ordinances were pleaded in haec verba rather than by reference as was done in the original complaint.

This complaint as amended was stricken and on May 9, 1939, on leave of court, plaintiff filed a second amended complaint based on charges of negligently and carelessly operating the mattress factory from November 1, 1933 to November 1, 1935, so as to discharge into the air, in the vicinity, great quantities of lint, dust, fluff, nap and similar substances, which rendered the air unfit to breathe by persons lawfully in the vicinity, including the plaintiff, which defendant knew or should have known; that during said period plaintiff owned and resided upon the premises located at 2454 West Roosevelt Road in the vicinity of defendant ’s factory; that plaintiff was in the exercise of due care and as a proximate result of defendant’s said carelessness and negligence plaintiff’s lungs, sinuses, throat and chest became infected and diseased, and that her injuries are permanent. The damages claimed were for past, present and future pain and suffering, and the expenditure of money for medical care and other treatment, and future payments for such purposes.

Defendant admitted the ownership, management and operation of the building and mattress factory in question, denied all the other allegations, and filed a special plea of the statute of limitations. No replication was filed to this special plea of the statute of limitations. Plaintiff appellee suggests, in answer to the statement in defendant’s brief that “No replication was filed to this special plea of the statute of limitations . . . and consequently the facts set forth are admitted,” that on June 2, 1939, plaintiff filed a motion to strike the answer and pleas to the second amended complaint, which motion to strike directly denied the allegations set up in the answer and pleas theretofore filed by the defendant; that on June 20, 1939, a hearing was had before the court who at that time heard the arguments of counsel with respect to the statute of limitations and entered the following order:

“It Is Ordered that defendant’s Answer and Pleas to Second Amended Complaint be and the same is stricken.
“The defendant, electing to stand upon its said Answer and Pleas to Second Amended Complaint, is hereby adjudged in default, for failure to file a new answer or plead to said Second Amended Complaint, and it is so ordered.
“It Is further ordered that this case be set for hearing upon said Second Amended Complaint on September 21,1939, to determine plaintiff’s damages.”

That subsequently, on September 21, 1939, the previous order striking the defendant’s answer, but not the pleas, was vacated and set aside. The defendant made a motion for a jury trial and the case was set for trial.

When the instant case was first called for trial the court, after reading the authorities, stated that he did not believe that the question of negligence had anything to do with the case and at that time the plaintiff was permitted to amend her complaint by striking out the words “carelessly and negligently” in paragraph two of her complaint. Later an order to that effect was entered by the court as follows: “Leave is given the plaintiff to file his second amended complaint and to amend the same by striking out the words negligently and carelessly in paragraph 2 thereof.” This order was entered during the course of the trial on November 30, 1940. It appears from the record that no action, either in the way of an answer, motion to strike, or objection to the striking out of the words “carelessly and negligently” was taken by the defendant.

From the statement of facts, established by the evidence heard by the court and jury, it appears that defendant operated a large factory at 2447 West Roosevelt Road, engaging in the manufacture and processing of cotton mattresses, pillows, and other products of like nature. Several years after the defendant had set up its factory the plaintiff, Felice Menolascino, and her husband purchased (in 1926) a home across the street. The home was one of a number of homes in a block of buildings which ran from Campbell avenue on the west about one-half block to the east. These buildings had been there for many years. For several years plaintiff lived in the neighborhood and the factory operated its business without any complaint. Plaintiff at that time was in perfect health, had never had anything wrong with her nose, her sinuses, her throat, or her chest. She weighed about 116 pounds and, according to the testimony of a doctor who had taken care of her little girl, was in radiant health. Plaintiff’s bedroom was located in the front of her house directly across the street from the mattress factory. In about 1932 the defendant’s factory began to discharge great quantities of cotton linter, described by witnesses as a grayish white dust. Numerous neighbors testified to the conditions pertaining in the neighborhood between 1933 to 1935 as a result of this great discharge from defendant’s premises.

One witness, Dominick Cherin, who lived next door testified to the frequent and almost daily discharge of this snow-like cotton, saying that it came from a blower, and that when the wind was from the south the stuff “was flying around through the windows into the flats,” and that it was so bad he could not breathe; that the furniture was covered with it, as well as the sidewalks; that frequently defendant’s employees gathered up and swept off the sidewalks; that upon at least ten different occasions he had complained to the defendant of the conditions; that they took sacks of this “stuff” off the roof; that in 1935 or 1936 he started a suit against defendant for damage to his property; that when the cotton was coming from the factory you could not breathe the air; and that, in 1936, after suit had been started, the conditions were alleviated.

There was the further evidence of Fred Lang who testified for plaintiff that he had formerly been an employee of defendant company, working in the basement where the cotton was chopped up. It appears that there was a large hopper into which the baled cotton was thrown, and that it was his duty to open the bales and throw it into the hopper. He said there was lots of dust from this operation. He also owned a home at 2423 Roosevelt Road, and testified that the dust from the hopper where he had worked was the same dust which was discharged about the neighborhood and onto his as well as his neighbor’s premises; that he was affected personally by this dust being blown up his nose, mouth and ears, and that at one time between 1932 and 1935 the condition in his home was awful; that the sidewalk was filled every day, every hour, an inch thick for two or three weeks; and that he made complaints to his straw bosses and told them to fix it and that they laughed at him. Numerous other witnesses corroborated these stories. Witness, Danny Cherin, 2450 Roosevelt Road, testified to substantially the same things. He also testified that he noticed in the morning he would constantly have to sneeze and his throat would dry up; that “it made you constantly sneeze and that your eyes would get red”; and that at times it was so bad it made breathing difficult. There were other witnesses who testified and a witness named Emil Van Hoorde, who lived just east of the factory in question. His back porch overlooked the roof of the factory. He was a chemist and when questioned as to how he knew that the dust was coming from the factory said “Of course, I could see — right there from the factory — it was right straight from there — there ivas no question about it, the whole roof on the factory was full and all over was this stuff and they put up there some of the new parts — it was all full — there was no question about that. ’ ’ He further testified that he had to go to one of his friends, a specialist for sinus trouble; that it did not get into his lungs, but that it -affected the general condition of his sinuses and respiratory organs. Other witnesses testified as to the conditions that appeared to be present in the vicinity of the factory.

In answer to hypothetical questions, both Dr. Lip-man and Dr. Snitman, eye, ear, nose and throat specialists, testified that the facts stated in the hypothetical question were sufficient from a medical and surgical point of view to cause or bring about the nasal polyps and the asthmatic condition from which the plaintiff had suffered, and gave as the basis of their opinion, that the continual exposure, day and night, sleeping or awake, to the continuous inhalation of the cotton lint could cause or bring about the nasal polyps and the asthma.

The defendant produced three employees of the factory, one a foreman, and two laborers, all of whom testified that although the factory produced as many as 1,100 mattresses per day and chopped up as many as 20 to 25 bales of cotton in the course of such a day they never saw any dust about the factory. The blower in question was installed and serviced by a separate company. It further appears from the evidence offered by defendant that it has been operating a mattress factory for 20 years; that the factory was on the south side of the street and plaintiff has lived on the north side of the street for 14 years; that the factory equipment was the same as it is now since 1928; that bales of cotton are wheeled in on hand trucks, opened with a hook and the cotton thrown in a hopper, which tears it apart; and that from each machine there are pipes leading to a blower system which collects the dust. One can see the cotton during the process as it falls automatically from one machine to another, where the cotton is combed like wool and turned in on rolls. Men with sticks pat the lumps out of it, which creates a little dust, but defendant contends it is all inside the machine which is located in the basement below the street level.

The position of the defendant is based upon the theory that the plaintiff must allege and prove negligence on the part of defendant and the exercise of ordinary care upon the part of plaintiff. • This is the issue involved in this case. The plaintiff contends on this issue that the authorities consistently have held that in an action based upon a nuisance of this character the carelessness or negligence on the part of defendant is immaterial and that the failure on the part of plaintiff to exercise ordinary care is not a defense. It is urged that since the courts have held that there is no necessity on the part of plaintiff to move, citing Laflin & Band Powder Co. v. Tearney, 131 Ill. 322, and Oehler v. Levy, 234 Ill. 595, and that the defendant does not acquire a prescriptive right to maintain a nuisance, the only question then arises as to whether or not the plaintiff could have done anything to avoid inhaling this noxious dust which permeated the atmosphere of her home. In 46 C. J. 663, the general rule is stated as follows :

“As a general rule, negligence is not involved in nuisance actions or proceedings, and is not essential to the cause of action. If a particular use of property causes a nuisance this fact is sufficient to entitle a person injured thereby to relief. If a nuisance exists, the fact that due care was exercised and due precautions were taken against the annoyance or injury complained of is no excuse. The fact that defendant has used the ordinary means to avoid the nuisance complained of which are used in general by others engaged in the same business is no defense. A nuisance may be created or maintained with the best or highest degree of care.” This same authority, 46 C. J. 665, on the subject of contributory negligence, says:

“As a general rule, contributory negligence in its ordinary meaning is not applicable to an action sounding in nuisance.” On this question of the necessity of there being negligence or carelessness on the part of the defendant, or due care upon the part of the plaintiff, in an action of this character, plaintiff cites O’Connor v. Aluminum Ore Co., 224 Ill. App. 613; Laflin & Rand Powder Co. v. Tearney, 131 Ill. 322; and Cooper v. Randall, 53 Ill. 24. In McFarlane v. City of Niagara, 247 N. Y. 340, Justice Cardozo in expounding the theory of nuisance, said:

“Nuisance as a concept of law, has more meanings than one. The primary meaning does not involve the element of negligence as one of its essential factors . . . One acts sometimes at one’s peril. In such circumstances the duty to desist is absolute whenever conduct, if persisted in, brings damage to another . . . Illustrations are abundant. One who emits noxious •fumes or gases day by day in the running of his factory may be liable to his neighbor though he has taken all available precautions . . . He is not to do such things at all, whether he is negligent or careful. ’ ’ In 29 Clyc. of L. & P. at page 1155, the fundamental principle is laid down as follows:

“The question of negligence is not involved in an action for the creation or maintenance of a nuisance, and hence no negligence need be shown in order to establish defendant’s liability in damages or plaintiff’s right to an injunction, nor can a showing that there is no negligence defeat a recovery.” We are inclined to agree with the plaintiff that contributory negligence on the part of the plaintiff was not in issue in the present case, nor the question of whether defendant was negligent or careful.

It is contended by the defendant that the trial court erred in refusing to direct a verdict for defendant and also in refusing to enter a judgment notwithstanding the verdict, which is not based upon the pleadings. In-reply to this contention of defendant, plaintiff answers that under the decisions in Illinois it is entirely immaterial as to whether the actions of defendant in diffusing these noxious materials over the neighborhood and permeating the air of plaintiff’s home were charged to be careless or negligent or were charged to be a nuisance. Plaintiff relies on the case of O’Connor v. Aluminum Ore Co., 224 Ill. App. 613, in which it was held that “If the facts alleged, of themselves, constitute a nuisance, it is not necessary to further characterize them by the use of the word ‘nuisance,’ nor is it necessary to aver or prove negligence.”

The question which we have to consider is whether the evidence offered supports the allegation of the complaint and, if so, it is a question entirely for the jury. [However, the question as to whether the allegations state the law correctly, so that the evidence that was offered supports the allegations is an important one.] After careful consideration of the facts as they appeared in this record, we are of the opinion that the evidence is sufficient to support the verdict. With reference to the question of the statute of limitations, the lower court was undoubtedly correct in striking the pleas to that effect. In each of the complaints, the original complaint, the amended complaint, the second amended complaint, and in the complaint as amended during the course of the trial when the words “carelessly and negligently” were stricken therefrom, the allegations of the defendant in discharging the lint, dust, etc., into the air, and the effect upon the plaintiff, upon her lungs, and the permanent effect upon her health, were all the same. The answer seems to be well stated by the plaintiff, namely, that the fact that the plaintiff in the second amended complaint charged that such action of the defendant was negligent is entirely immaterial. It is urged that section 46 of the Civil Practice Act, par. 2 [Jones Ill. Stats. Ann. 104.046], expressly permits amendments of this character, and that in many decisions, including the cases of Metropolitan Trust Co. v. Bowman Dairy Co., 369 Ill. 222, and Wanless v. Peabody Coal Co., 294 Ill. App. 401, the courts have permitted amendments of this character to be made if the transaction or occurrence out of which the causes of action arose was the same. Considering this question, it would appear that the transaction or occurrence out of which the actions in the respective complaints arose was the same, and that the actions arose out of the acts before the court. The defendant argues, however, that a cause of action for personal injuries has a different statute of limitations from an action for nuisance; that under the statute actions for personal injuries are barred in two years unless suit is brought within that time, and that a suit based on nuisance is not barred until five years have elapsed. It is urged by plaintiff that defendant’s argument is based upon a misinterpretation of section 16 of the statute of limitations [Jones Ill. Stats. Ann. 107.276], and that, whether a cause of action for a nuisance is barred within two or five years, would be entirely dependent upon whether or not it was a cause of action for injuries to the person, or injuries to property. Our attention is called to Desiron v. Peloza, 308 Ill. App. 582, where sections 14 and 15 of the statute of limitations (Ill. Rev. Stat. 1939, ch. 83, pars. 15, 16 [Jones Ill. Stats. Ann. 107.274, 107.275]) are interpreted in relation to an action under the Dram Shop Act and where it was held — as in the case of Handtoffski v. Chicago Consolidated Traction Co., 274 Ill. 282— that the limitations in the paragraphs in question are not based upon the form of the particular action, but on the particular injury sued for. In other words, it would be entirely immaterial so far as the statute of limitations was concerned as to whether the form of this action was in negligence or in nuisance, but that the question of the statute of limitations would be dependent upon whether a claim was for personal injuries or one for property damage. When we come to consider this question and the facts offered in evidence, we are of the opinion that the cause of action was the same, and that the question of whether negligence was charged or a nuisance, under the statute of limitations, would be dependent upon whether the claim was for personal injuries or one for property damage. In considering the facts as we have stated them, we believe under the circumstances that the court was justified in submitting the cause to the jury.

Defendant’s next point is that the trial court erred in giving improper instructions for plaintiff and in refusing proper instructions requested by defendant. One of the instructions tendered by defendant and refused by the court, was defendant’s instruction No. 1, which read:

“The Court instructs the jury that even though you should find, from a preponderance of the evidence, that the condition of the plaintiff Felice Menolaseino was brought about by the action of the defendant, still if you further find that the plaintiff could have avoided such condition by the exercise of ordinary care, and that she negligently failed to do so, then you are instructed that the plaintiff would not be entitled to recover, and it will be your duty to find the defendant not guilty.” The defendant’s argument is that none of plaintiff’s given instructions touched upon the question of due care, but that all of plaintiff’s instructions were based upon the theory that defendant’s liability depended upon its maintenance of a nuisance, and that in such cases contributory negligence is no defense. It is, of course, unnecessary to cite authority that want of ordinary care in negligence cases is a complete bar. In David M. Swain & Son v. Chicago, B. & Q. R. Co., 252 Ill. 622, cited by defendant as an authority for its position — that to recover damages arising out of a nuisance it must appear that plaintiff was in the exercise of reasonable care — the court said:

“. . . but if another person in attempting to use the highway in the exercise of reasonable care, falls into the trench and receives a personal injury, or if his horse should fall into the ditch and receive an injury, clearly an action would lie for the special damage to his person or his property.” In the further case of McEniry v. Tri-City Ry. Co., 254 Ill. 99, the court, in discussing under what circumstances a public nuisance may become a private nuisance, said:

“Such a nuisance may also under some circumstances sustain a private action for special damages to an individual in which the unlawful character of the obstruction would form the basis of the action. In such case the injured party would be required to allege and prove the unlawful character of the obstruction, and this fact, coupled with the proof of special injury and freedom from contributory negligence on the part of the plaintiff, would warrant a recovery.” The plaintiff contends that the court was justified in refusing-defendant’s instruction No. 1, for the reason that in an action based upon a nuisance, as in the case at bar, contributory negligence is not a defense. In Laflin & Rand Powder Co. v. Tearney, 131 Ill. 322, the court said:

“As a general rule, the question of care or want of care is not involved in an action for injuries resulting from a nuisance. If actual injury result from the keeping of gunpowder, the person keeping it will be liable therefor, even though the explosion is not chargeable to his personal negligence. ’ ’ And in Johnston v. City of Galva, 316 Ill. 598, it is said:

“The rule requiring the injured party to protect himself from the consequences of the wrongful act of another by the exercise of ordinary effort, care and expense on his part does not apply in cases of nuisances.” In the instant case we agree with the plaintiff’s theory that contributory negligence is not a defense.

It is further objected by defendant that the refusal to give defendant’s instruction No. 2 and in giving-plaintiff’s instruction No. 14 was error. The defendant’s refused instruction read:

“The Court instructs the jury that if you find the issues for the plaintiff and against the defendant, and if you further find that the plaintiff has sustained damages, then in assessing such damages you have no right to consider any damages suffered or sustained by the plaintiff after November 2, 1935.” November 2, 1935, was the date of the filing of this action. It is contended by defendant that where damages are sought by reason of the maintenance of a continuing nuisance, as distinguished from a permanent nuisance, the plaintiff is limited to only such damages as he or she may have suffered up to the time of the filing of the complaint, and it is urged that plaintiff recognized this rule in her pleadings by specifically limiting defendant’s negligence in the second amended complaint from November 1933 to November 2, 1935. In support of its contention defendant cites Schlitz Brewing Co. v. Compton, 142 Ill. 511. The plaintiff, however, submits that the evidence clearly showed that by November 1, 1935, the date of this action, the nuisance in question had set up within the plaintiff a chronic ailment. It is urged that the record shows that after the suits were started the defendant changed the conditions in the factory so that it no longer spewed this noxious material over the neighborhood, but that, by that time, the injuries to plaintiff had become so severe that the medical testimony showed without contradiction that there had been fastened upon her chronic and permanent injuries to the nose and throat from which she would never recover. It does appear from the testimony of the doctors that the injuries were permanent. The court did not err in refusing to give the defendant’s instruction limiting plaintiff’s recovery to previous injuries sustained.

The next instruction complained of is plaintiff’s given instruction No. 14, which is as follows:

“The court instructs the jury that if from a preponderance of the evidence and under the instructions of the Court, you find for the plaintiff; in such event in determining the amount of damages the plaintiff is entitled to recover in this case, if any, the jury have a right to and they should take into consideration all the evidence pertaining to the plaintiff’s physical injuries, if any, so far as such injuries are the proximate result of the conditions complained of in the second amended complaint, as such conditions, if any, are shown by the evidence, to have existed prior and up to thfe commencement of this suit; the nature and extent of such physical injuries, if any, are shown by the evidence, her suffering and loss of health, if any, attributable to such conditions, and such future suffering and loss of health, if any, as the jury may believe from the evidence before them in this case she will sustain by reason of such conditions; all moneys necessarily expended or become liable for, for doctors’ bills and hospital bills while being treated for injuries so received, if any, are shown by the evidence, and may find for her such sum as in the judgment of the jury under the evidence and instructions of the court will be a fair compensation for the injuries she has so sustained or will sustain, if any, so far as such damages are alleged in the second amended complaint and proven by a preponderance of the evidence.” It is urged that the court erred in instructing the jury that plaintiff could recover for such ‘ ‘ future suffering ’ ’ and for the injuries she has sustained “or will sustain,” citing in support of its contention the cases of N. K. Fairbank Co. v. Bahre, 213 Ill. 636; Schlitz Brewing Co. v. Compton, 142 Ill. 511, and Atchison, T. & S. F. R. Co. v. Jones, 110 Ill. App. 626. The plaintiff justifies this instruction by saying that she is entitled to recover any and all damages, past, present, and prospective, which are shown to be the proximate result of the actions of the defendant up to the first of November 1935, as alleged in the complaint. The case of Schlits Brewing Co. v. Compton, supra, is criticized by plaintiff as not being a personal injury action, but rather a property damage suit, and it is pointed out, that by reason of the fact that the nuisance there involved was a continuing rather than a permanent one, the court held that only those damages could be recovered up to the commencement of the suit. The basis for this decision is that each repetition of the nuisance gave rise to a new cause of action and that the plaintiff might bring successive actions as long as the nuisance lasted. As suggested by plaintiff, the application of this doctrine to an action for injuries would be a farce. It would mean that each time defendant threw the dust, lint, fluff, etc., into the plaintiff’s home she would have to start a new suit and, if necessary, a new suit each day for the separate injuries she had received on that day. The controlling question is not whether the nuisance itself is continuing or temporary, but rather whether the injury set up or caused by the nuisance is temporary or permanent. In Collins v. Cosgrove-Meehan Coal Co., 279 Ill. App. 98, which case distinguished the Schlitz Brewing Co. case, supra, the court said:

“To apply the rule, it is necessary to consider the proof, to determine whether the injury sustained was permanent or temporary. Appellees insist that the testimony shows the chemically and minerally laden water from the mine so poisoned the soil that it was rendered unproductive and valueless, and would thus continue for so long a period of time as to amount to practical irremediability; hence it was a permanent injury. If the evidence justifies such conclusion, appellees were entitled to make the proof allowed by the trial court, as ruled by this court in Vogler v. Chicago & Carterville Coal Co., 180 Ill. App. 51.”

In the matter of instructions, defendant further complains of plaintiff’s given instruction No. 5, which is as follows :

‘ ‘ The court instructs the jury that the fact, if it is a fact, that the defendants were operating their business at the place in question prior to the time the plaintiff acquired the adjacent premises as a residence will not relieve the defendant of liability, if by the preponderance of the evidence and under the instructions of the court you find they are otherwise liable.” It would seem that this instruction is supported by law and correctly states it. The fact that defendant may have been operating its business when the plaintiff acquired the adjacent property is immaterial and does not constitute a defense. (Laflin & Rand Powder Co. v. Tearney, 131 Ill. 322.) Defendant’s further" argument is that this instruction leaves the jury free to find defendant guilty on any grounds that might appeal to them and throws the burden on defendant of disproving liability. The liability of the defendant under the instruction expressly depends upon the jury’s finding that by a preponderance of the evidence and under the instructions of the court the defendant was otherwise liable, referring, of course, to the charges in the complaint, the only instruction directing a verdict for plaintiff was plaintiff’s instruction No. 2, which required the plaintiff to prove the various elements alleged in the complaint by the preponderance or the greater weight of the evidence.

There is also the further charge made by defendant that the court erred in giving plaintiff’s instruction No. 3, for the reason that it is abstract in form. The same objection might be made to any instruction which defines some term applicable to any case, such as “negligence” or “proximate cause,” still they are proper.

Complaint is made that the court erred in giving plaintiff’s instruction No. 2, which directed a verdict for plaintiff in event the jury should find from the evidence that the plaintiff had proven her case as alleged in the second amended complaint, which instruction followed exactly the allegations of the second amended complaint as amended. It contains all the elements necessary to establish the plaintiff’s cause of action and requires as a condition precedent to recovery that the jury find all such elements present before the plaintiff could recover. The objection that it omitted the question of due care and lack of contributory negligence is answered by the authorities hereinabove discussed on the question of whether contributory negligence is a defense in this action.

The defendant further continues to offer objection to certain of plaintiff’s instructions and points to plaintiff’s given instruction No. 4, criticizing the giving of same because it does not require the negligent or careless management of the factory to be included. As we have already pointed out in our discussion of other instructions, neither negligence, carelessness, or contributory negligence have anything to do with a nuisance case. In Feder v. Perry Coal Co., 279 Ill. App. 314, cited by plaintiff, the identical issue was discussed upon the refusal to permit defendant to show the usual, approved method. In Cooper v. Randall, 53 Ill. 24, it was held that evidence introduced for the purpose of showing that the machinery of the mill was excellent and the mill properly managed was not admissible. After consideration of the point offered and the other authorities called to our attention, we are of opinion that the court did not err in giving this instruction.

Defendant made a motion to withdraw a juror because the plaintiff cried, and contends that it was error for the court to deny this motion. From an examination of the briefs it appears that defendant’s first contention under this point is that the damages were excessive by reason of plaintiff’s conduct during the argument of her counsel to the jury. The record discloses that the plaintiff had from 1934 to the time of trial undergone an extensive, painful and distressing series of treatments and operations, by numerous doctors and in various hospitals in the community. We are of opinion that the verdict for $5,000 is not an excessive one, and that there was no error in entering judgment on the verdict. The motion made to withdraw a juror because plaintiff cried before the jury (which motion was denied) would seem to have been directed to the sound discretion of the trial court. (Kempinski v. Tuthill Bldg. Material Co., 255 Ill. App. 375.) As far as appears from the record there was no abuse of discretion nor was the denial of this motion such error, under the facts and circumstances submitted, as to justify a reversal.

The further error complained of was that plaintiff’s counsel was permitted to repeatedly misstate the law in argument. Criticism is made to plaintiff’s argument dealing with the question of whether it was necessary for plaintiff, under the circumstances as shown by the evidence, to move from the neighborhood. Our attention is called that defendant’s counsel, in cross-examining plaintiff, after a series of questions concerning her knowledge of the nuisance across the way and its deleterious effect on her, asked her, “Why didn’t you move out of the premises?” An objection made by plaintiff’s counsel was' sustained. While it is the general rule that defendant has a right to use its property as it sees fit, still, if in doing so, regardless of whether it is negligent or not or whether its factory is properly operated, it creates and maintains a nuisance and thereby deprives neighbors of the use and enjoyment of their homes and injures their health, it is liable. (Feder v. Perry Coal Co., 279 Ill. App. 314; Cooper v. Randall, 53 Ill. 24.) Applying this principle to the facts and argument of counsel in question, we are of opinion that counsel correctly stated the law.

Another matter complained of by defendant is that improper evidence was admitted and that the court erred in refusing to strike incompetent and prejudicial evidence. The admission of evidence concerning the effect of the dust and lint upon other parties than the plaintiff, is objected to. In Cooper v. Randall, supra, it was held that evidence of this character was improperly rejected “for the reason that it tended to show the extent and character of the injury sustained . . .” and “. . . tended to show that the mill was capable of inflicting the injury complained of . . . .” This and other cases cited seem to sustain the position of the plaintiff, and we quite agree that the court did not err on this question of admissibility of' evidence. There are objections offered to the admissibility of other evidence, but after careful consideration we are of the opinion that the court properly passed upon the questions presented, and that there is no reason for a reversal on the questions of admissibility of evidence.

After careful consideration of the questions submitted to this court, we are of the opinion that there is no such error in the trial court’s ruling upon the questions called to its attention as would justify a reversal, and that, considering the evidence offered, the jury’s verdict is not contrary to the manifest weight of the evidence.

One further point is called to our attention, namely, the defendant’s criticism of the actions of the trial court in his rulings on the- evidence and the pleadings. From the record it would appear that the court exhibited fairness to both parties and kept the evidence within bounds at every juncture of the proceedings. There is one rather unusual suggestion offered by counsel for defendant, which is that “To all the other errors the court added that of coercing a verdict, when a disagreement or a verdict for defendant might otherwise have resulted, by holding the jury from 4:15 o’clock in the afternoon until midnight.” It is called to our attention that defendant agreed as to the time. The issues were complicated and the record voluminous with testimony of witnesses, and it would .take a reasonable time for the jury to consider the matters before them. The court did not err in permitting the jury to consider the questions of fact until it was ready to submit its verdict.

After consideration of all the questions as we have discussed them, we are of the opinion that there was no error sufficient to justify a reversal, and accordingly judgment is affirmed.

Judgment affirmed.

Burke, P, J., and Kilby, J., concur.


author: Mr. Justioe Hebel

text:
    Martha Rakowski and Helen Langowski, Appellees, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 41,895.
    Opinion filed March 18, 1942.

      Hoyne, O’Connor & Rubinkam, of Chicago, for appellant ; Nathaniel Rubinkam and John C. Melaniphy, both of Chicago, of counsel. x
    E. C. Frank Meier and S. J. Krzeminski, both of Chicago, for appellees.
   Mr. Justioe Hebel

delivered the opinion of the court.

This action was brought by Martha Rakowski as beneficiary under an industrial insurance policy issued by the Metropolitan Life Insurance Company on November 27, 1939 on the life of Wladyslaw Rakowski, her deceased husband, in the sum of $310. The policy also provided that the company would pay an equal sum in the event the insured’s death resulted solely through external, violent and accidental means. The plaintiff, Helen Langowski, also sues as beneficiary under a similar policy issued by defendant on December 18, 1939, on the life of the said Wladyslaw Rakowski, her deceased father, in the sum of $186. This policy also provided for the payment of a similar amount if the insured’s death resulted solely through external, violent and accidental means.

The defendant filed its defense and an amendment thereto. The plaintiffs filed a reply. Upon the cause coming on for trial, the court sustained plaintiffs’ oral motion for summary judgment on the pleadings and, without hearing any testimony, entered a judgment in favor of Martha Rakowski for the sum of $620 and a judgment in favor of Helen Langowski for the sum of $372. From these judgments, the defendant appeals.

It is contended by defendant that it having denied that the death of the insured resulted from bodily injuries caused solely through external, violent and accidental means within the terms of the policies, the burden of proof was on plaintiffs to establish facts sufficient to entitle them to recover double the amount stated in the policies. Defendant admits that insured died on July 8, 1940, “but denies that the death of the insured resulted from bodily injuries caused solely through external, violent and accidental means within the terms and provisions of said policy.” It is urged that an issue is thereby tendered and, before any finding and judgment that death resulted from accidental means, as plaintiff alleges, a preponderance of evidence on plaintiff’s behalf would have to be introduced at the trial. Counsel for plaintiff in his argument before the court and on this appeal took the position that because proofs of death had been submitted to the defendant and retained by it, the statements therein contained thereby became binding on the defendant, and that no testimony was necessary to establish the allegations in the statement of claim for recovery of double the amount of the insurance. The trial court followed this suggestion as is evidenced by the ruling and judgments entered. Defendant urges that satisfactory proofs of death within the meaning of a benefit certificate means satisfactory proof that the insured is dead, and a statement as to the cause of death, but that the statements contained in said proofs of death are not binding upon either the company or the beneficiary when the cause of death becomes a disputed question between them. Although the proof was satisfactory as formally establishing the death, the defendant had the right to refuse to pay upon the ground that the insured did not come to his death by accidental means as defined by the policies. Proofs of death are competent to show that plaintiffs complied with the requirements of policies or, by defendant, that plaintiffs did not meet the requirements thereof, but are not conclusive as to either party when the question whether the cause of death was such as to charge defendant with double liability or to relieve it therefrom. (Knights Templars & Masons Life Indemnity Co. v. Crayton, 209 Ill. 550.) The purpose of proof of death is to enable the insurer to form an intelligent estimate of its rights and liabilities under the contract. (5 Joyce on Insurance, 2d Ed., sec. 3277.) Statements made as to the cause of death in proofs of loss are not conclusive upon the parties. (5 Joyce on Insurance, 2d Ed., sec. 3319.)

In United, States Life Ins. Co. v. Kielgast, 26 Ill. App. 567, the court, in discussing the admissibility of proofs of loss in evidence, said:

“The rule seems to be well settled that where, in a suit upon a policy of insurance, the proofs of death are offered in evidence by the plaintiff, they are admissible only for the purpose of showing performance by the assured of the conditions of the policy in relation to preliminary proofs (citing cases). But where the proofs are offered in evidence by the defendant, a somewhat different effect should be given them. Thus, in Mutual Life Ins. Co. v. Stibbe, 46 Md. 302, it is held that where the proofs of death are offered in evidence by the plaintiff they are admissible solely for the purpose of showing compliance with the conditions of the policy; but where they are offered by the defendant, they are admissible as declarations by the plaintiff.” In 8 Couch’s Cyclopedia of Insurance Law, sec. 2225, it is stated

“As a general rule, supported by the weight of authority, proofs of loss are admissible in evidence'only for the purpose of showing a compliance with the requirements of the policy, since such proofs are declarations or statements by the insured in his own behalf, and cannot be admitted as evidence. (Lycoming F. Ins. Co. v. Rubin, 79 Ill. 402; Knickerbocker Ins. Co. v. Gould, 80 Ill. 398; Imperial Fire Ins. Co. v. Shimer, 96 Ill. 580). Since the insurer is not a party to the proofs of loss, it is not bound by any statement which may be contained therein or omitted therefrom.” The defendant admitted receipt of notice and proofs of death as satisfying the provision of the policy, but it did not, by retaining them, waive any right to contest liability under the policies.

The defendant further urges as an affirmative defense that the insured, within two years prior to the dates of the issuance of the insurance policies, had been a patient at or an inmate of an institution for the treatment of physical or mental disease; and that this defense was sufficiently alleged and tendered an issue in which the plaintiffs joined by filing a reply thereto. In a fourth class action in the municipal court of Chicago, such as in the case at bar, the rights of the parties will not be determined by technical rules of pleading. (Buchsbaum v. Halper, 265 Ill. App. 226.) In entering judgment for plaintiffs on the pleadings, the court did not strike the defense filed by defendant for any insufficiency nor give any reason for entering judgment thereon. The policies provided that they shall be incontestable after they had been in force, during the lifetime of insured, for one year from their date of issue, except for nonpayment of premiums. The policies were not in force during the lifetime of insured for one year, having been issued on November 27,1939 and December 18,1939, and the insured having died on July 8, 1940. The policies were therefore not incontestable.

Under the provisions of the policies, if within two years prior to the date of issue of these policies the insured had been a patient at or an inmate of any institution for the treatment of physical or mental disease, unless it shall be shown by the insured or any claimant that no such institutional treatment or attention was for a serious disease, injury, or physical or mental condition, the policies were voidable by the company unless reference to such institutional treatment or attention was indorsed on the policies. The defendant in its defense sets forth these provisions and alleged that insured within two years prior to the date of issuance of the policies, had been a patient at or inmate of an institution for the treatment of physical or mental disease; and further sets forth that it had not been shown either by insured or by plaintiffs or by anyone else, that the above mentioned institutional treatment and attention was not for a serious disease, injury or physical or mental condition and that reference to the above mentioned institutional treatment was not indorsed on the policies in accordance with the provisions above set forth nor disclosed in the written applications for said policies; and it is further alleged that by virtue of said institutional treatment had by insured, within two years prior to the issuance of the policies, said policies had been declared to be void by the defendant and that the defendant’s only liability on said policies is for the return of the premiums paid, setting them forth, which amounts had been and were again tendered in full satisfaction of defendant’s liability.

To this affirmative defense the plaintiffs filed a reply in which they averred that they had no direct knowledge of the allegations therein contained, but that the allegations if true are not sufficient in law to avoid the policies and they denied that the defendant at any time voided the policies of insurance. It' would seem that issue was joined upon this affirmative defense by these pleadings.

This form of policy has been passed upon by this court in the case entitled Gambill v. Metropolitan Life Ins. Co., 312 Ill. App. 538, and courts of other jurisdictions have done so repeatedly, holding that where the defendant alleges and proves hospital or medical attention or treatment within the two years prior to the issuance of the policies, the burden is then upon the plaintiff to prove that such hospital or medical attention or treatment is not for a serious disease. (Davis v. Metropolitan Life Ins. Co. (Ohio), 31 N. E. (2d) 98; McDermott v. Metropolitan Life Ins. Co. (Wisc.) 8 N. Y. S. (2d) 896; Grant v. Metropolitan Life Ins. Co., 194 S. C. 25, 9 S. E. (2d) 41; Melnyk v. Metropolitan Life Ins. Co., decided April 19, 1940, Appellate Term, 1st Dept. N. Y.; Baranowica v. Metropolitan Life Ins. Co. (decided June 17, 1940, by the Court of Appeals of Lucas County, Ohio.)

Counsel for plaintiff made an oral motion for summary judgment in this cause, but no written motion or affidavits were filed. It is contended by defendant that a motion for summary judgment must be in writing and be supported by affidavits so that the court can determine whether a defense exists. Rules 72 and 73 of the municipal court of Chicago, governing the procedure of summary judgments, provide:

“Rule 72. If the plaintiff, in an action upon a contract, . . . shall file an affidavit or affidavits, on the affiant’s personal knowledge, of the truth of the facts upon which his complaint is based and the amount claimed (if any) over and above all just deductions, credits and set-offs (if any), the court shall, upon plaintiff’s motion, enter a judgment in his favor for the relief so demanded, unless the defendant shall, by affidavit of merits filed prior to or at the time of the hearing on said motion, show that he has a sufficiently good defense on the merits to all or some part of the plaintiff’s claim to entitle him to defend the action. If the defense is to a part only of the plaintiff’s demand a judgment may be entered, and an execution or other suitable writ issued, for the balance of the demand, and the case shall thereafter proceed as to the portion of the plaintiff’s demand in dispute as though the action had been originally brought therefor; . . .”

“Rule 73. (1) The affidavits in support of a motion for summary judgment shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the plaintiff’s cause of action is based; shall have attached thereto sworn or certified copies of all papers upon which plaintiff relies; shall not consist of conclusions hut of such facts as would be admissible in evidence; and shall affirmatively show that the affiant if sworn as a witness, can testify competently thereto. If all the facts to be shown are not within the personal knowledge of one person, two or more affidavits shall be used.

“(2) Affidavits of merits to prevent the entry of a summary judgment shall be drawn in the same manner as the affidavits mentioned in the foregoing paragraph of this rule . . . . ” As before stated, no written motion or affidavits were filed in this cause, nor was the defense stricken as being insufficient in law .nor were any alleged deficiencies therein pointed out as to the right to recover the double amount of the insurance. The case of Diversey Liquidating Corp. v. Neunkirchen, 370 Ill. 523, was a direct appeal to the Supreme Court from an order of the municipal court of Chicago granting a motion for summary judgment. The court, in reversing the judgment, said;

“The purpose of a proceeding for summary judgment is to determine whether a defense exists. Where a defense raising an issue of fact as to plaintiff’s right to recover is set up, a summary judgment must be denied. To try an issue of fact by affidavits would deprive defendant of his right to a jury trial. . . . The court, in reliance on plaintiff’s affidavits and an apparent discrepancy between the facts stated by defendant in his original and amended affidavit of merits, must have considered untrue the facts alleged in defendant’s second affidavit of merits. Regardless of the fact that the affidavit stated a defense, it was ordered stricken and judgment entered. The court cannot determine the truth of defendant’s affidavit of merits in a summary judgment proceeding. The truth or falsity of facts disclosing a legal defense must be decided by a jury.” In People for use of Dyer v. Sanculius, 284 Ill. App. 463, the court quoted from the work of O. L. McCashill on the Civil Practice Act, where he said:

1 ‘ There is a striking difference between the affidavits required by the rule and the affidavits which were employed under those sections of former practice acts which established a modified form of summary judgment. The affidavits contemplated in this rule are designed to inform the court of the existence or non-existence of an issue worthy of trial, whereas the affidavits formerly employed were designed primarily to advise a party of the nature of his adversary’s claim of defense.” In this action, the affidavit attached to plaintiffs’ statement of claim is executed by the attorney of record for plaintiffs, and no affidavits in support of motion for summary judgment were filed. If the court deemed the motion in the nature of a motion to strike the affidavit of merits it should have so stated and pointed out wherein the pleading was deficient so that it might be amended where appropriate. It might then strike the pleading and the defendant would under the usual practice, be granted leave to amend. Eule 42 of the municipal court of Chicago provides that all objections to pleadings shall be raised by motion which shall specifically point out the defects complained of. A motion directed against any pleading filed subsequent to the original statement of claim shall be filed within 10 days after the last day allowed for the filing of the pleading attacked. In disposing of a motion directed against any pleading the court shall fix the time for the filing of such further pleadings as are necessary. Under rule 26 of that court it is provided that when new matter by way of defense is pleaded in an answer, a reply shall be filed by plaintiff within 10 days after the last date allowed for the answer. Plaintiffs filed a reply on May 13, 1941, the day before the case was called for trial, and it urged that the plaintiffs, therefore, waived the right to question the sufficiency of defendant’s defense.

As before stated, plaintiffs’ answer is that where notice and proof of loss were submitted to defendant insurer by plaintiffs and were received and retained without objections, defendants waived the right later to object to them as not satisfying requirements of the policies. It is urged that, since defendant admits receiving the proofs of death and nowhere denies the sufficiency of them in relation to the cause of death but merely says “that it has denied liability under said policy,” and having accepted the proofs of death without reservation, the defendant must therefore be charged with having been satisfied with proof of death as well as cause of death. The plaintiffs further contend that the facts constituting any affirmative defense — that an instrument is either void or voidable and — seeks — to defeat the cause of action in whole or in part and any ground or defense — must be plainly set forth in the answer or reply.

As we understand the facts the pleadings put in issue plaintiffs’ right to recover double the amount of insurance, payable upon insured’s death from bodily injuries caused solely through external, violent and accidental means within the terms of the policies. Whether insured’s death was caused solely through external, violent and accidental means is an issuable fact upon which evidence should have been heard before the question was passed upon. Further, the defense that the insured, within two years prior to the dates of the issuance of the insurance policies, had been a patient at or an inmate of an institution for the treatment of physical or mental disease, having been sufficiently alleged and issue joined by plaintiffs’ reply, the burden was upon the plaintiff to prove that such hospital attention or treatment was not for a serious disease. It is clear that the issues joined were questions of fact to be determined by the hearing of evidence. In our opinion the motion for judgment in this case did not comply with the rules of the municipal court of Chicago for summary judgment, and even if it had done so the court could only determine if a defense existed. Under the statements of facts, as we have them here, the cause of death was a disputed issue between the parties. Applying the rules that we have incorporated in our opinion, the court was in error in passing upon an oral motion for judgment without having affidavits in support thereof, or without having the defects complained of pointed out specifically. The court ignored not only the principles of law, but the explicit rules of the municipal court governing pleading • and summary judgments. The court did not have before it the facts to pass upon whether there existed a defense worthy of trial.

For the reasons stated, the judgment is reversed and the cause remanded for a trial by the court upon the facts as they are presented at the time of hearing.

Judgment reversed and cause remanded.

Burke, P. J., and Kilby, J.,- concur.