author: Mr. Presiding Justice Stone

text:
    G. D. Cassens, Appellee, v. J. E. Paynter and Ray Paynter, Trading as Community Cab Lines, Appellants.
    Opinion filed May 5, 1937.
    Geers & Geers, of St. Louis, Mo., for appellants.
    ■ Burroughs, Simpson & Reed, of Edwardsville, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion

of the court.

This cause is before the court on a motion of G. D. Oassens, appellee, to dismiss an appeal from the circuit court of Madison county and to assess damages in favor of the appellee or in the alternative to strike the cause from the docket. The motion is supported by affidavits of counsel for the appellee and by the chief deputy clerk and the deputy clerk of the circuit court of Madison county. It appears from the record that on June 2, 1936, the appellant filed and served appellee with a notice of appeal to this court. No praecipe for a record was filed or served within 10 days thereafter but appellants requested the court reporter to prepare a report of the proceedings at the trial. Such report was prepared and was certified to by the trial court on July 21, 1936, and was on the same day filed in the office of the circuit clerk of Madison county. The file mark appears to have been changed from July 21, 1936, to July 27, 1936, and a question of fact has arisen whether the change was properly authorized by the office of the circuit clerk and whether the 21st day of July or the 27th day of July is the correct day on which the said report is to be taken as filed. On August 26, 1936, counsel for appellants delivered the report of proceedings together with the complete transcript of the record to the chief deputy clerk of the circuit court with instructions to forward the transcript to the clerk of the Appellate Court. On August 29,1936, the clerk of the Appellate Court wrote to the counsel for the appellants calling his attention to the fact that the clerk had not received the docket or filing fee necessary for docketing an appeal in this court. On September 1, 1936, the clerk received a letter from counsel for appellants inclosing the $20 docket or filing fee and thereupon the transcript of record was marked filed in the Appellate Court. No application was made for extension of time for filing the record' in this court.

It appears from an affidavit of counsel for appellants that on July 16, 1936, the record of proceedings was delivered to the attorney for appellee by the court reporter and that on July 18,1936, appellants’ counsel was notified by appellee’s counsel that the record of the proceedings was ready for delivery. The affidavit further says that in response to the foregoing notice appellants’ counsel called at the office of appellee’s counsel for the record and was informed that it had been left at the office of the clerk of the circuit court. Appellants’ counsel removed the record from the office of the clerk of the circuit court on July 21, 1936, and did not return it until July 27, 1936, at which time the original assignment of errors was attached to the record of the proceedings in the trial court. Appellants’ counsel contends that the record was filed on the date that the same was returned to the office of the clerk by appellants’ counsel and not on July 21, 1936, the day on which the record was left in the office of the clerk by appellee’s counsel. There are some conflicting assertions in the affidavits of counsel for the respective parties.

If it be taken in the light most favorable to the appellants, that is, that the true date upon which the report of proceedings should be considered as filed was July 27, 1936, it nevertheless appears that appellants have not complied with the requirements of Rule 36, subsection 2 of the Supreme Court of Illinois, and Rule 1, subsection 2 (b) of this court. It further appears that under Rule 36, section 2, subsection C, this court has no alternative in the matter of an appeal sought as a matter of right except to dismiss the appeal where the record is not transmitted to this court within 30 days from the time of the filing of the report of proceedings of the trial court. Boy v. City of Springfield, 282 Ill. App. 238; West Side Trust & Savings Bank of Chicago v. Damond, 280 Ill. App. 343, 350; Holmes v. Burk, 277 Ill. App. 46; and Corrigan v. Von Schill College of Chiropody & Pedic Surgery, 277 Ill. App. 350.

The appeal is accordingly dismissed.

Dismissed.


source: Caselaw Access Project

author: Mr. Presiding Justice Denis E. Sullivan

license: Public Domain

text:
    Henry Thomas and Evangeline Thomas, Appellees, v. National Paper Napkin Manufacturing Company et al. Appeal of National Paper Napkin Manufacturing Company et al., Appellants.
    Gen. No. 39,077.
    Opinion filed May 19, 1937.
    Rehearing denied June 2, 1937.
    Morris K. Levinson, of Chicago, for appellants.
    A. A. Pantelis and Harry A. Linaweaver, Jr., both of Chicago, for appellees.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a decree entered in the circuit court awarding the plaintiffs, Henry Thomas and Evangeline Thomas, his wife, title to 3,498 shares of the common capital stock of National Paper Napkin Manufacturing Company, as well as an accounting from defendants based on a complaint in chancery brought by plaintiffs.

Plaintiff Henry Thomas contends that Thomas N. Deligianes, during his lifetime, gave to the plaintiffs Thomas and his wife 3,498 shares of the capital stock of the National Paper Napkin Manufacturing Co., represented by two certificates, as a gift causa mortis and upon a demand made of the defendant corporation, it refused to recognize them as stockholders and, consequently, plaintiffs filed a bill to compel the issuance by said company of such stock certificates and asked that an accounting for money which plaintiffs claimed was due and owing from Deligianes as well as from the corporation.

Deligianes died July 25, 1932, and one Andrew Deligianes, his brother, was made executor of the estate. Plaintiffs claim in their bill of complaint that they being the true owners of said stock went to the National Paper Napkin Company, defendants, and told said company that they were the legal holders and owners of the said stock certificates which they exhibited to the agents of the defendant corporation, as well as to the executor of the estate, and asked that new certificates of stock be issued to them. Plaintiffs further contend that they were advised by the defendant corporation that it would accept plaintiffs as such owners of said stock and that it would upon request issue new certificates in the names of the plaintiffs.

Plaintiffs further contend that shortly thereafter they requested the issuance of said certificates and on October 26, 1933, they made a written demand upon the defendant corporation to make such transfer, informing said corporation that the certificates were in plaintiffs’ physical possession, hut that the corporation has failed and refused to transfer said certificates.

Plaintiffs further contend that they held said certificates in their possession from the day of assignment and delivery to them up until December 28,1933, when the same were either lost or stolen; that they stand ready and willing to indemnify the new corporation if they will issue the new certificates.

Plaintiffs further contend that the said defendant corporation caused spurious certificates to be issued to some person or persons unknown to plaintiffs; that Thomas N. Deligianes, deceased, Andrew Bourdes and William Yiakoumelos Were the same officers and directors of Narrownap Folding Machine Company and National Paper Napkin Manufacturing Company, National Paper Napkin Company, a common law trust, consisting of Andrew Bourdes, Thomas N. Deligianes, William Yiakoumelos, George Stamos, George Bourdes, Paul Rellias and Peter Danos, and that the same persons are officers and directors of National Paper Napkin Manufacturing Company, and that by manipulation of royalty contracts, salary agreements and other spurious arrangements have caused said defendant corporation to become depleted, and have greatly impoverished said corporation and National Paper Napkin Company, a trust estate, and further pray for a receiver and an accounting.

Plaintiffs further contend that the defendant corporation is indebted to the plaintiff Henry Thomas to the extent of $1,700 for cash which he gave them to purchase an interest in said last named company and that said corporation is indebted to plaintiff Henry Thomas in the sum of $10,000 in cash or $16,000 par value of the company’s unissued preferred stock.

Plaintiff further contends also that he is the owner of certain patent rights in the Narrownap Folding-Machine Co., and that said patents or contracts are in the possession of said trustees; that plaintiff gave other large sums of money to purchase an interest in said company.

All the allegations were denied by the defendants and proof was offered and admitted by which the decree found in favor of plaintiffs, directing* that the stock of the National Paper Napkin Manufacturing-Company be issued in favor of plaintiffs and also that plaintiffs are entitled to an accounting. The master’s report and the decree found in favor of the major portion of plaintiffs’ claims as to the Narrownap Folding Company.

It is unnecessary to set out in detail the evidence and finding of the court for the reason that this decree must be reversed and the cause remanded for a new trial because of the errors committed in the admission of certain evidence, the refusal to admit other competent evidence and for other reasons herein stated.

At the hearing- before the master the testimony of Thomas and other interested parties was permitted to be introduced as against the executor of the estate of Deligianes, in violation of chapter 51, paragraph 2, section 2, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 107.068; that ydien the evidence on behalf of defendants was offered of an expert witness as to his tracing of the signatures of Deligianes on the assignment clause of the so-called lost certificates of transfer from Deligianes to Thomas and his wife, it was charged to be forgery, and, when offered in evidence it was refused by the master. This was error.

One of the defenses in this case was charges of forgery, both as to the assignment of the stock certificates as well as the promissory notes, and evidence tending to prove such charges was pertinent in the trial of the cause. The evidence should not have been excluded.

As was said in the case of Penix v. Sloan, 3 Fed. 358;

“Where the genuineness of the signature to a deed was in issue, and the deed was not produced, and it did not appear that it had ever been in the possession of plaintiffs, it was permissible for them to prove the appearance of the signature by secondary evidence, and for that purpose a duly authenticated tracing of it was admissible.”

Before the decree was entered, counsel for defendant filed a petition setting forth newly discovered evidence which he offered to introduce which could not, from the very nature of things, have been available at the first hearing. The deceased against whose estate this claim is being made, having no family, lived alone in a hotel: It is claimed that the plaintiff in this case took advantage of him while he was very sick, just prior to his death. After searching for. some time, but too late for presentation before the master, the defending executor found certain documents, papers and accounts of the deceased, which if admitted in evidence would possibly have some effect upon the decision of the master and chancellor. The court dismissed the petition without requiring an answer thereto. In this the court was in error.

This is an unusual case — supported by unusual testimony. The court appreciates the difficulty in making proof of claim against the estate of a deceased person when death intervenes and, by the same token, the difficulty of making a proper defense on behalf of a decedent’s estate by those who are charged with this duty and yet not in possession of or familiar with all the facts. In this case, the deceased had been ill and his death had been forecast for many weeks. He was, just prior to his death, a daily associate and in charge of the plaintiff in the latter’s hotel. Plaintiff Henry Thomas claims that immediately prior to Deligianes’ death he assigned this stock valued at upwards of $100,000 to said plaintiff and his wife as a gift causa mortis.

The certificates herein referred to were not produced by plaintiff and no claim was made against the defendant company, National Paper Napkin Mfg. Co. and the estate until some 16 months later. The testimony supporting this claim is mainly in acknowledgment form — that is, the testimony to support plaintiffs ’ claim to the stock is principally by witnesses who say they were present at unusual places and testified to equally unusual statements alleged to have been made by the deceased.

We do not wish to pre-judge this case, but we are of the opinion that greater latitude should have been given by the master and chancellor as'to the introduction of evidence so that a proper defense could have, been made by the representatives of the deceased.

As was said in the case of Delee v. Leahy, 278 Ill. App. 178, at page 181:

“It has long been well settled that courts lend a very unwilling ear to statements of witnesses as to what dead people have said. . . . Lea v. Polk County Copper Co., 62 U. S. 493. In that case the court said (p. 504): ‘In 1856, when these depositions were taken, John Davis was dead, and courts of justice lend a very unwilling ear to statements of what dead men have said. ’ And in 22 C. J., p. 291, in discussing the testimony of witnesses as to statements made by a deceased person, it is said that ‘it is impossible, in most cases, to convict the witness of perjury if his testimony is wilfully false, testimony as to the oral statements of deceased persons, which is therefore regarded as the weakest kind of evidence and subjected to the closest scrutiny. ’ And our Supreme Court in the case of Laurence v. Laurence, 164 Ill. 367, in discussing this question said (p. 377): ‘Evidence of admissions made by a person since dead should be carefully scrutinized, and the circumstances under which they were alleged to have been made carefully considered with all the evidence in the case. Such evidence is liable to abuse.’ ”

We are of the opinion that instead of entering the decree, the court should have re-referred the matter to the master to hear the evidence offered in support of the allegations set forth in said petition and to have directed the master to receive in evidence the tracing of the signatures offered.

As to the fees of the master the latter should have been directed to conform to Rule 58 of the rules of the circuit court relating to procedure before masters in chancery. If objections to fees are then filed, it is the duty of the court to request the master to justify the amounts of his charges in a hearing before the court.

For the reasons herein given the decree of the circuit court is hereby reversed and the cause is remanded with directions to hear the cause pursuant to the views herein expressed.

Decree reversed and cause remanded with directions.

Hebel and Hall, JJ., concur.


text:
    Decorators Supply Corporation, Appellee, v. James Babka et al., Trading as Babka Plastering Company, Appellants.
    Gen. No. 39,117.
    Opinion filed May 19, 1937.
    Henry Blumberg, of Chicago, for appellants; A. Charles Lawrence, of Chicago, of counsel.
    Alfred Lubin, of Chicago, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment for the sum of $3,335.50 entered in the superior court on January 15, 1936, in favor of plaintiff, Decorators Supply Corporation, and against the defendants James, Bernard and Mary Babka, individually and as copartners, doing business as the Babka Plastering Company, in an action of trespass on the case on promises, in which the plaintiff sought, under an amended declaration, to recover as assignee of the Decorators Supply Company from the defendants as partners for goods, wares and merchandise sold and delivered by Decorators Supply Company. The cause was tried without a jury resulting in the above mentioned judgment.

It is claimed in the amended declaration that on November 14,1934, the said Decorators Supply Corporation purchased by assignment all of the accounts receivable of the Decorators Supply Company, a bankrupt, from Robert W. McKinley, trustee in bankruptcy, and that the said Decorators Supply Corporation is now the owner and holder of a certain account against said defendants.

The amended declaration further alleges that on April 6, 1928, said defendants entered into a contract with the Decorators Supply Company for the furnishing and manufacture of plaster ornaments to be installed in the lobby and banquet hall of the Hotel Waukegan at Waukegan, Illinois, for the sum of $3,180; that on April 16, 1928, the said defendants entered into a new contract with the Decorators Supply Company for the furnishing and manufacture of decorative plaster work to be installed at the Hotel Waukegan for the sum of $450; that from April 9,1928, to July 13, 1928, the defendants purchased from the Decorators Supply Company, goods, wares and merchandise to be delivered at the Hotel Waukegan, in the sum of $53.50; that by said contracts the said defendants agreed and promised to pay the aforementioned sums and that pursuant to said contracts, the Decorators Supply Company did furnish, manufacture, deliver and sell to said defendants the merchandise as hereinabove mentioned, and that all of said merchandise was delivered to the Hotel Waukegan at Waukegan, Illinois at the instance and request of said defendants; that said defendants thereby became indebted to the plaintiff, after allowing a credit of $250, in the sum of $3,335.50.

On November 25, 1935, the defendants James Babka, Bernard Babka and Mary Babka, sued individually and as copartners doing business as Babka Plastering Company, filed pleas to the amended declaration among which was a verified plea denying joint liability. The third plea alleged payment and states that on February 6, 1929, the Decorators Supply Company assigned a mechanic’s lien on the Hotel Waukegan in payment of the entire debt. The fifth plea was one of release for a valuable consideration. The sixth plea which was verified states that defendants are not nor were they ever jointly liable in the several causes of action.

The plaintiff took issue by filing a replication on November 27, 1935.

On January 15, 1936, judgment was entered in favor of plaintiff, Decorators Supply Company, and against Louis Babka, James Babka, Bernard Babka and Mary Babka, doing business as Babka Plastering Company and Babka Plastering Company, a corporation, in the sum of $3,335.50.

On March 3, 1936, an order and judgment nunc pro tunc as of January 15,1936, was entered, stating that it appearing that upon a mistake of fact a judgment was entered on January 15, 1936, for $3,335.50 in favor of plaintiff company and against said defendants. It was then ordered that a 'judgment for said amount be entered in favor of Decorators Supply Corporation, assignee of Decorators Supply Company, a corporation, and against James Babka, Bernard Babka and Mary Babka, individually and as copartners, doing business as Babka Plastering Company, and eliminating the name of Babka Plastering Company, a corporation, and Louis Babka, from which order the appeal was perfected.

It appears from the evidence that the Decorators Supply Company went into bankruptcy.

Plaintiff’s Exhibit 1 is a receipt signed by the trustee, being for the sum of $375 and representing the bid made by the Decorators Supply Corporation, by Wm. T. Foster, president, for uncollectible accounts receivable and notes of the Decorators Supply Company. Mr. Foster of the Decorators Supply Corporation testified that this was the only assignment that the Supply Corporation ever received, for that purpose, for the accounts receivable.

Plaintiff’s Exhibit 2 was an order to the Decorators Supply Co., dated April 6, 1928, to proceed with the work on the ornaments for the lobby and banquet hall of the hotel and was signed Babka Plastering Co., by Joseph Hrizak.

Plaintiff’s Exhibit 3 was a letter written on the letterhead of the Babka Plastering Company, dated April 16, 1928, addressed to Decorators Supply Company accepting the proposal of that company for certain work. It is signed Babka Plastering Co., by Wm. Horalek.

Plaintiff’s Exhibit 4, dated February 6, 1929, was an order on the Hotel Waukegan Corp., directing them to pay the Decorators Supply Company out of the balance due them on their contract for the lathing and plastering. This order is signed Babka Plastering Co., by James Babka and Bernard Babka.

Plaintiff’s Exhibit 5 was received in evidence over defendants’ objection, it being a certificate of the recorder of deeds of Cook county, setting forth a certificate of Louis L. Emmerson, secretary of state, dated November 24, 1928, stating that Babka Plastering Company is a legally organized corporation, with 100 shares of stock of no par value and giving the names of the subscribers to capital stock as James Babka, Bernard Babka, Mary Babka and William Horalek and named the first board of directors as James Babka, Bernard Babka and William Horalek. It also gave the names of incorporators as Alfred Magnusson, Joseph T. Scott and Thane T. Swartz. On the second page of said document, among other things, is the following: the partnership takes over the “partnership heretofore conducted in Chicago by Mary Babka, James Babka, Bernard Babka, William Horalek and Joseph Hrizak under the name and style of Babka Plastering Company.” This was improperly admitted in evidence as to Mary Babka. It was mere hearsay evidence at best and was not competent evidence to prove a partnership. Mary Babka does not appear to have signed the application or to have known of its contents.

Plaintiff’s Exhibit 6 was a certified copy of a certificate of increase of capital stock of Babka Plastering Company, filed in the office of the recorder of deeds of Cook county, increasing- the capital stock of the Babka Plastering Company from 100 shares no par value to 1,100 shares no par value, of which 1,090 shares were issued in exchange of all the assets of the partnership heretofore conducted in Chicago, Illinois, by Mary Babka, James Babka, Bernard Babka, William Horalek and Joseph Hrizak under the name and style of Babka Plastering Company.

Plaintiff’s Exhibit 7 consisted of seven invoices of the Decorators Supply Company of Waukegan and were for various amounts, the first being dated April 9, 1928, and the last one was dated November 12, 1928. The amounts set forth on these invoices totaled $3,585.50, with a credit memorandum for $250, leaving a net balance of $3,335.50.

Attempts were made by plaintiff to prove delivery of the material to the hotel. Counsel first called James Babka, one of the defendants, as provided by section 60 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, ff 188; Jones ILl. Stats. Ann. 104.060, but he knew nothing about the delivery of the material and he was not asked who composed the partnership. He testified that Mary Babka acquired an interest in the partnership on the day of the incorporation which was on November 24, 1928, according to the certificate. This was six months after the date it is alleged in the declaration that the contract was entered into.

E. E. Foster was called by the plaintiff and testified that he was a salesman for the plaintiff company, but did other work in addition to selling; that he sometimes collected accounts and sent out the statements, but that he did not have anything to do with the making of the contract.

At the conclusion of plaintiff’s evidence the court denied defendants’ motion to find for the defendants.

Foster was also called under section 60 of the Civil Practice Act for the defendants and stated that he made a personal visit to Waukegan and saw some ornamental plaster up and some lying around to be put up; that his assumption was that it had been made by the Babka Plastering Company, inasmuch as they had the contract, but that he did not know as he did not see it delivered there; that “the only personal knowledge I have is the times I seen the trucks being loaded to go up there. ... I never saw it.actually delivered at the building.”

We do not believe the evidence shows a delivery of material to the Hotel Waukegan as alleged in the declaration. Kitchin v. Clark, 120 Ill. App. 105.

It is next contended by the defendants that the proof of the partnership does not sustain the allegations thereof contained in the declaration or the judgment entered by the court.

In the case of Powell Co. v. Finn, 198 Ill. 567, the court said:

“The theory of the plaintiff’s case is, that the defendants . . . are jointly liable in this action as partners. Of course, to make them so liable it was necessary that the plaintiff should prove that they were each members of the association,- — in other words, to prove the partnership and also that each of the defendants was a member of the firm.”

This contention must be sustained especially as to Mary Babka. We fail to find any evidence in the abstract to show the organization of such partnership or that she was a member of any such partnership. In fact the only affirmative evidence appearing in the record is that her interest in the partnership occurred on the day of the incorporation which was November 24, 1928, being six months after the time of the transaction with the Decorators Supply Co.

Much is said by both sides in discussing the state of the pleadings and that the declaration does not allege sufficient to sustain the judgment, or that the plea of non-joint liability states conclusion, etc. Inasmuch as these points were not objected to in the trial court, they cannot now be raised here. We are not inclined 'to consider such objections at this time except to say that in another trial any such errors may be avoided.

This cause was tried by a judge without a jury and reviewing courts hesitate to reverse such cases as the presumption is that the trial judge considered only the competent evidence. But, where there is a lack of competent evidence to sustain the judgment entered, reviewing courts will not hesitate to reverse the same.

From a review of this case we are impelled to say that there is not sufficient competent evidence to sustain the judgment against the defendants as partners and the judgment is, therefore, reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded.

Hebel and Hall, JJ., concur.


text:
    B. Leopold et al., Trading as Home Finance Company, Appellees, v. Universal Credit Company, Appellant.
    Gen. No. 39,126.
    Opinion filed May 19, 1937.
    Kehearing denied June 2, 1937.

      Goldman, Allshouse & Healy, of Chicago, for appellant; Egbert.G. Dreefein, M. M. Loman and M. J. Hirschenbein, all of Chicago, of counsel.
    Eothbart, Peterson & Eosenfield, of Chicago, for appellees.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

A judgment was entered in the circuit court of Cook county against the defendant, Universal Credit Company, for the sum qf $1,738.50, plus interest, in a suit in trover commenced by the plaintiffs, B. Leopold, G. H. Leopold and S. M. Leopold, copartners, doing business as Home Finance Co., for the conversion of six automobiles, from which judgment this appeal is taken.

The complaint alleges that on October 9, 1934, the plaintiffs were the owners of six automobiles and on that day the automobiles were unlawfully and illegally seized and retained by the defendant; that the fair and reasonable market value of said automobiles at that time was $2,600; that plaintiffs have demanded the return of the same as the legal owners of each of said automobiles, but defendant has refused to do so.

Defendant answering’ denies specifically all of the statements and charges set forth in plaintiffs’ complaint and prays to be discharged with costs.

The cause was tried before the court and jury and a verdict was returned in favor of plaintiffs for $1,738.50, plus interest of $130.39, making a total of $1,868.89.

The facts in this case, as disclosed by the evidence, are substantially as follows: The defendant Universal Credit Company, a corporation, was engaged in a finance business with offices in Chicago, Illinois; that C. G. Carpenter, doing business as Carpenter Motor Co., was engaged in the business of buying and selling automobiles at Knox, Indiana; that the Universal Credit Co. had, prior to this time, financial dealings with the Carpenter Motor Co.; that B. Leopold, G. H. Leopold and S. M. Leopold, copartners, doing business as Home Finance Co., the plaintiffs, are also engaged in the finance business with offices at Rensselaer, Indiana; that prior to the bringing of this suit plaintiffs, from time to time, financed automobile transactions for the Carpenter Motor Co.

The facts as disclosed by the evidence further show that on May 21, 1934, Carpenter Motor Co. purchased from the Ford Motor Co., a 1934 Ford Victoria Sedan, Motor No. 18-897566, under a conditional sales contract executed by the Carpenter Motor Co., which for value received the Ford Motor Company assigned to the defendant; that the contract provided that the title is reserved in the vendor or assignee until the purchase price is paid and that the purchase price shall be paid at the office of the defendant 90 days after date; that shortly before the due date for the payment of the purchase price under the Ford Motor Company contract, Carpenter Motor Co. sold and delivered said Ford Victoria to Guy Sellers, as purchaser; that this latter contract of sale of the Carpenter Motor Co., for value received, gave title to the automobile to the defendant; that the defendant accepted this contract in exchange for its interest in the contract with the Ford Motor Company, which had theretofore been assigned to and held by it.

The evidence further shows that prior to the execution of the Seller’s contract, C. G. Carpenter, doing business as the Carpenter Motor Co., sold to himself, as an individual, the same automobile by way of a conditional sales contract and assigned that contract, together with title to the car, to plaintiffs for value received.

The evidence further shows that the possession of the automobile was not delivered to either the plaintiffs or to the defendant in any of these transactions; that the Carpenter Motor Company, for the purpose of securing loans from the plaintiffs on five other automobiles, executed bills of sale to such cars to the plaintiffs, containing notes as part of the sale evidencing loans; that plaintiffs never had or received possession of any of those automobiles. Subsequently, one of these automobiles was sold by Carpenter Motor Co. to a farmer named McCoskey who lived near Knox, Indiana.

The evidence further shows that early in October, 1934, two checks issued to the defendant by the Carpenter Motor Co., one being for $1,050' and the other for $500, were returned stamped “Not Sufficient Funds” and the Guy Seller’s contract was in default; that on October 8, 1934, the defendant sent its representative G. F. Alleott to the Carpenter Motor Co. at Knox, Indiana, and he discovered Carpenter had absconded and could not be found; that Alleott took possession of four automobiles there to which plaintiffs claimed title had been conveyed to them by bills of sale. Alleott also went to the farm of McCoskey and took possession of the automobile which was included in one of the bills of sale held by plaintiffs; that Alleott, after driving about with Guy Sellers in his car, took possession of it and Sellers protested claiming that the car was his own.

As to these cars that were taken by the defendant’s agent, defendant did not claim to have any color of title and, without any legal process it took them wherever it saw them, apparently to protect its account for money loaned Carpenter Motor Company on other cars.

Defendant contended that plaintiff’s title was not good as against their corporation and the plaintiffs contend that the defendant was a mere tortfeasor with no color of title or any lien or any legal process and for that reason plaintiffs ’ title was as good as against defendant’s general claim, whether recorded or not. The evidence shows that the day the agent of the defendant took possession of the cars defendant was notified that the plaintiffs had a claim to the automobiles by bill of sale, but the defendant took possession of the cars with the observation that he would rather have Carpenter owe money to the plaintiffs than to them.

When the cars and trucks were taken by defendant’s agent from the showroom of the Carpenter Motor Co., they were stored in various garages in other towns in Indiana. A demand was made upon the defendant by the plaintiffs prior to the commencement of suit asking for the return of the cars, but defendant refused to turn the cars over.

Plaintiffs’ Exhibit 1 is entitled “Conditional Sales Contract,” executed on July 9, 1934, at Knox, Indiana, by the Carpenter Motor Co. by C. Gr. Carpenter, Mgr., as seller, and C. Gr. Carpenter, as purchaser. The contract recites that Carpenter Motor Co. sells to C. Gr. Carpenter the 1934 Ford Victoria in question for the sum of $746.54, payable as follows: $234 in cash on delivery of the car and the deferred balance of $512.54 in six monthly successive instalments commencing August 9, 1934, the first five for $20 each, and the balance of $412.54. The contract further provides that title to the automobile shall not pass to the purchaser until said contract, together with all interest, costs and charges shall have been fully paid in cash; that the loss, injury or destruction of said motor vehicle shall not release the purchaser from the payment of the contract; that the purchaser shall keep said motor vehicle free and clear of all liens and incumbrances; that if the seller shall at any time deem said contract, said property or said debt unsafe or insecure, the whole amount remaining unpaid on said contract is by said purchaser admitted to be due and payable, and the seller may, at the seller’s option, repossess the motor vehicle; that if default be made in the payment of any instalment on said contract, or if the purchaser shall fail or refuse to comply with any terms or conditions thereof, the balance of said contract shall become due and payable immediately at the election of the holder of said contract, and in any event, the seller, with the aid of any other person or persons, may take immediate possession of the motor vehicle without any liability on the part of the seller or seller’s assignee; that the seller may sell said motor vehicle at public or private sale with or without notice to the purchaser and apply the proceeds of such sale after deducting expenses of delivery and repossession to the payment of the amount due from the buyer to the owner of the contract, and the owner of the contract shall have a right to sue for and collect any balance owing on said contract; that the purchaser of the contract shall have the right to purchase the motor vehicle at public sale, etc. On the back of said instrument is an assignment and repurchase agreement executed by the Carpenter Motor Co., by C. 0. Carpenter, Mgr., on July 9,1934, by which Carpenter Motor Co. assigns the conditional sales contract to the Home Finance Co., the plaintiff, also transfers title to the automobile described therein to said assignee, and agrees to repurchase from the Home Finance Co., the said automobile in accordance with the provisions of Carpenter Motor Co.’s protective agreement.

Plaintiffs further claim to title is based on their Exhibit 2, which is a bill of sale, executed September 8, 1934, by Carpenter Motor Co. by C. G. Carpenter, Mgr., and recites that the Carpenter Motor Co. for valuable consideration, grants, sells and transfers to Home Finance Co., Ford Truck Motor No. 5158646 for $250 and a Ford Tudor Motor No. 316879 for $300. Directly below the signature of C. Gr. Carpenter and as part of the same instrument is a note for $550 executed by Carpenter Motor Co., by C. Gr. Carpenter, Mgr. dated September 8, 1934, payable 60 days after date to the order of the Home Finance Co. with 8 per cent interest from date. The note provides that in consideration of the acceptance of this note by the Home Finance Co., the Carpenter Motor Co. agrees that title to the property is and shall remain in the Home Finance Co. and its assigns until said note is paid; that upon default in payment of the note or interest thereon or breach of any covenant therein contained, or the use or attempt to sell, dispose of or incumber said automobiles or any other circumstance which would cause the payee or its assigns to believe said motor vehicle to be in jeopardy by reason of Carpenter Motor Co.’s possession of said automobiles, such note shall immediately become due without notice to anyone and the payee, or its assigns, may at their option retake the property. The Carpenter Motor Co. acknowledged that the motor vehicle is the property of the Home Finance Co. and agrees to hold the same at its sole risk as to all loss or injury for the purpose of storing said property at Carpenter Motor Co., to keep the automobile brand new, not to operate it and to return it to the Home Finance Co., upon demand, and that “The execution of this note shall be conclusive proof of the delivery of said property to the undersigned under the terms hereof.”

Plaintiff’s Exhibit 3 is another bill of sale and contains the same provisions as plaintiffs’ Exhibit 2, except that it is dated September 22, 1934, and provides for the sale of a Ford Tudor, Motor No. 485061 for $300 and the note is dated September 22,1934 for $300, due 30 days after date.

Plaintiffs’ Exhibit 4 is another bill of sale dated September 14, 1934, from the Motor Co. to the plaintiffs and provides for the sale of a Ford truck BB5128972 for $250 and a Studebaker sedan E8 628, Serial No. 5081244 for $125, and the note is dated September 14, 1934, for $375, due 60 days after date.

The evidence further shows that checks were issued by the plaintiff made payable to the Carpenter Motor Co., as follows:

July 9, 1934........................$513.50
September 8, 1934.................. 550.00
September 14, 1934................. 375.00
September 22, 1934................. 300.00
Total............................$1,738.50

That amount being the amount of the verdict and judgment entered by the trial court.

There were six automobiles which the plaintiffs claim the defendant converted, two Ford Tudor coaches, two Ford trucks without bodies, one 1929 Studebaker sedan, and a 1934 Ford Victoria sedan. On the first five of these cars, the conveyances of title to plaintiffs, were made by virtue of Exhibits 2, 3, and 4. It is claimed as to five of these cars that the defendant had no claim to title, nor were they interested aside from being creditors of the company and, as before stated, the cars were seized without process ‘of any kind.

It is claimed by defendant that the most the plaintiffs acquired was a chattel mortgage or equity interest in the five cars. In support of this they cite paragraph 8055, sec. 33-301 in Vol. 7, of Burns Annotated Statutes,-1926 (Indiana Statutes) relating to chattel mortgages, which was in force at the time the above instrument was entered into. It reads as follows:

“No assignment of goods by .way of mortgage shall be valid against any other person than the parties thereto, where such goods are not delivered to the mortgagee or assignee and retained by him, unless such assignment or mortgage shall be acknowledged as provided in case of deeds of conveyance, and recorded in the recorder’s office of the county where the mortgagor resides, if he resides in this state, and if not a resident of this state, then in the county where said property is situated, within ten (10) days after the execution thereof.”

Defendant also cites the case of Roudebush v. Nash, 93 Ind. App. 283, 177 N. E. 335, wherein it is stated:

‘1 Since 1843, our statutory law has contained a provision similar to that contained in our present statute requiring, where the possession of the goods mortgaged is not delivered to the mortgagee and retained by him, that a chattel mortgage be recorded within 10 days after its execution in order to be valid against any person not a party thereto, and our Supreme Court and this court have consistently held that there must be a strict compliance with the terms of the statute on the part of the mortgagee or no claim under the mortgage can be legally asserted against any person not a party thereto.” (Citing cases.) We do not believe that the law cited by defendant and the cases apparently supporting the same are in point in the instant case.

Defendant contends that plaintiffs did not have title to any of the property on the ground that delivery of possession was not given to the plaintiffs at the time of the delivery of these bills of sale. Delivery of possession was not necessary, even at common law, to transfer the title to the goods sold. Commonwealth Title Ins. & Trust Co. v. Gregson, 303 Ill. 458, at p. 463, and cases there cited.

The Uniform Sales Act in force in Indiana since 1929, which is similar to the Illinois statute, provides that title may pass without transfer of possession. Ill. State Bar Stats. 1935, eh. 121a, If 21, §18; Jones Ill. Stats. Ann. 121.22, wherein it is said:

“(1) Where there is a contract to sell specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.
“ (2) For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties, usages of trade and the circumstances of the case.”

Paragraph 22, section 19, Ill. State Bar Stats. 1935, ch. 121a; Jones Ill. Stats. Ann. 121.23, provides that unless a different intention appears, the following rules apply for ascertaining the intention of the parties :

“Bule 1. Where there is an unconditional contract to sell specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment, or the time of delivery, or both, be postponed.”

When the default occurred in these contracts, plaintiffs became invested with the right to the property therein described. When the Carpenter Motor Co. purchased the vehicles from the plaintiffs, subject to the condition that the title shall not pass until payment in full of the purchase price is paid, they had a lawful lien upon the said automobiles according to the terms .of the conditional sales contract.

If, as counsel for defendant argues, the contracts between the plaintiffs and the Carpenter Motor Co. were unrecorded chattel mortgages (which they were not), yet the unrecorded chattel mortgages as between the parties were valid and, as between them, the title passes to the mortgagee. Allcock v. Loy, 100 Ill. App. 573; McTaggart v. Rose, 14 Ind. 230; Reynolds v. Quick, 128 Ind. 316.

Analyzing further defendant’s contention, we believe the intent and purpose of these chattel mortgage acts was to protect innocent third persons who, for value, acquire rights in the property conveyed while the mortgage remains unrecorded. In the instant case, the defendant was a wrongdoer — a trespasser. Defendant had a general open account for money owing to them from the Carpenter Motor Co. They sent an agent who took possession of these cars, without any warrant or process of law, but simply took physical possession and thereby became a tortfeasor. We do not think that the Mortgage Act, or the law with relation thereto, was intended to protect such unlawful acts. Defendant had notice of the rights of the plaintiffs as information was given to the agent before he took possession of these cars that the plaintiffs had financed them and they understood that to mean that Carpenter Motor Go. held possession only under a conditional sales contract from the plaintiffs. So far as their taking possession of the cars after they had been sold to McCoskey, as well as the car sold and in the possession of Sellers, is concerned, they could not defend this unwarranted taking on the theory that they were protected by the Chattel Mortgage Act.

In the case of Martin v. Dry den, 1 Gilm. (Ill.) 187, the court at page 218 said:

“Who is a creditor, in the meaning of our recording acts? He is one who, without actual or constructive notice of a prior conveyance or incumbrance, institutes such proceedings, or takes such steps, as effect a lien on the land, before the recording of such conveyance or incumbrance, whether the debt be prior or subsequent to them, and whether the vendor, at the time of conveying or incumbering, had other property sufficient to pay the debt or not.”

A case very similar to the instant case is that of All-cock v. Loy, 100 Ill. App. 573, wherein the court at page 575 said;

“The requirements of Sections 1, 2, 3, and 4 of the chattel mortgage act, apply only as to interested third parties, and do not in any manner affect the status of the parties to the instrument. Third parties who may avail themselves of the statute must have an interest in the property, such as that of subsequent purchaser, lienor, judgment creditor, or an officer, bailiff or custodian in possession by virtue of a valid writ, execution or warrant.” Sumner v. McKee, 89 Ill. 127.

In Jones on Chattel Mortgages and Conditional Sales (Bowers Ed.), Yol. 1, sec. 237a, p. 386, it is said:

“An unrecorded mortgage is good as against tortfeasors, partners and creditors of a purchaser. A mortgage though not recorded vests the general property in the mortgagee, and, when there is no stipulation to the contrary, the right also to the immediate possession of the property; and therefore he may maintain an action of tort against one who, without any title, takes the property from the mortgagor’s possession. ’ ’

In Yol. 2, section 446, page 210, the said author, continuing, says:

“As against third persons the mortgagor’s possession may be the possession of the mortgagee. . . .
“The mortgagee may maintain trover for conversion of the mortgaged property whilst it was in the possession of the mortgagor.”

And continuing at sec. 447a, page 211:

“The right of action against a wrongdoer depends upon the plaintiff’s title or possession. The registry acts do not affect the determination of the question, for in general they make an unrecorded mortgage void only as to purchasers without notice and as to creditors. A wrongdoer cannot invoke the protection of the statute as against a mortgagee entitled to possession.
“Even in Massachusetts, where the statute declares that an unrecorded mortgage is not valid against any other person than the parties thereto, it is held that a mortgagee whose mortgage is not recorded may maintain an action of tort against one who, without title, takes the property from the possession of the mortgagor, if the mortgagee has, as against the mortgagor the right of immediate possession.”

In Johnson v. Brown Bros. Iron & Metal Co., 208 Mo. App. 189, 231 S. W. 1011, the court quoting from Landis v. McDonald, 88 Mo. App. 335, said at page 339:

“Broad as this statutory phrase ‘any other person’ is, it does not apply to strangers; and one claiming the mortgage to be void must have some right to, or claim upon, the mortgaged property.”

In Johnson v. Jeffries, 30 Mo. 423, the court at page 425, said:

“It is a great misconception of the statute to so interpret it as to apply to all persons indiscriminately, except the parties to the instrument, and thus permit any third person, a trespasser or wrongdoer it may be, to invoke its aid. ’ ’

Two members of the Indiana Bar testified as to the law of the State of Indiana stating that in order for a general unsecured creditor to obtain priority over a mortgagee who has not recorded his mortgage, he must necessarily have to take some legal process against the specific property covered in the mortgage. And in the words of one of the witnesses —

“He couldn’t go out and say ‘this mortgage is unrecorded; therefore, I have a prior lien?’ ”

A similar case was before this court entitled Western Suburban Finance & Thrift Co. v. Graham, 285 Ill. App. 587, 3 N. E. (2d) 172 (Abst.). In that case it was held that the conditional sales contracts were valid contracts and that Falone was in possession of the fixtures as owner at the time the agreements were entered into and that even though plaintiff there never acquired actual possession of the fixtures, Falone nevertheless remained in possession pursuant to the terms of the conditional sales contracts, which were valid and binding as between Falone and the plaintiff. Citing the Slierer-Gillett Co. v. Long case, 318 Ill. 432, and holding plaintiff’s titles were good and plaintiff’s conduct had not been such as to give rise to estoppel. Therefore, in the instant case, defendant could not deprive plaintiff of the cars or their value by forcibly taking and unlawfully maintaining possession of same.

Other questions were raised in the briefs, but we do not believe they are controlling in any sense.

From a review of the entire matter it appears that a fair trial was had and the jury was properly instructed as to the law. We are of the opinion that the defendant acquired no rights by its forceful and wrongful seizure of the cars in question. The plaintiffs should not have been deprived of their rights under their bills of sale and conditional sales contracts by such tortious action. The proof herein shows that the plaintiffs were deprived of the value of the-cars by the wrongful action of the defendant and that their loss was the amount of said verdict, or even more, and that plaintiffs’ cause of action should be sustained and the verdict approved.

For the reasons herein given the judgment of the circuit court is hereby affirmed.

Judgment affirmed.

Hebel and Hall, JJ., concur.


text:
    Hazel Proud, Appellee, v. Arthur J. Adelberg and Lillian Berndt, Appellants.
    Gen. No. 39,142.
    Opinion filed May 19, 1937.
    Bobertson, Crowe & Spence, of Chicago, for appellants ; Eugene P. Kealy, of Chicago, of counsel.
    Wright & Kamin and Edward T. Duday, all of Chicago, for appellee; Alfred Kamin, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment entered in the circuit. court for $2,000 in favor of plaintiff, Hazel Proud, for personal injuries which she received while riding in the automobile owned by Arthur J. Adelberg which, at the time of the accident was being driven by Lillian Berndt, and from which judgment the defendants bring this appeal.

The suit was brought under the so-called “Guest Statute” of the Illinois Motor Vehicle Act and the declaration consisted of one count, in which plaintiff charges that Lillian Berndt was the agent of the other defendant, Arthur J. Adelberg; that the plaintiff was their passenger and that the defendants individually and by agent or servant with conscious indifference to surrounding circumstances and conditions, wilfully and wantonly drove the said automobile off the highway into a ditch, resulting in the injuries of which plaintiff complains, etc.

Answers denying the allegations were filed by the defendants. No questions are raised as to the pleadings.

The facts as disclosed by the evidence are substantially as follows: The plaintiff, a young lady about 23 years of age at the time of the accident, was one of a party of four women who were going by automobile from the home of defendant Adelberg, which was located at 3040 North "Whipple street, Chicago, to a golf course located on Lake avenue, about one-half mile east of Waukegan Road, west of the Village of Wilmette. The defendant Arthur J. Adelberg, is a practicing dentist with offices on the northwest side and who resides at 3040 North Whipple street with his wife and family.

The evidence further discloses that on the evening of August 12, 1932, plaintiff went to Dr. Adelberg’s office regarding some dental work; that plaintiff knew the defendant Dr. Adelberg, having been previously introduced to him by her husband who had known the doctor for some years; that at the doctor’s office she and her husband met two men friends of the doctor; that some conversation was had about the men going out to play golf on Lake avenue, near Wilmette, and it was finally agreed that they would all go to Dr. Adelberg’s home at 3040 North Whipple street; that at the doctor’s home they met Mrs. Lillian Berndt, a neighbor of the Adelbergs ’ who was visiting there when they. arrived, and it was agreed that the four men would go out to the golf course and that the plaintiff, Mrs. Lillian Berndt, codefendant, Mrs. Adelberg, wife of Dr. Adelberg and a Miss Lois Helquist, a niece of Mrs. Adelberg’s would drive out later in Dr. Adelberg ’s car; that the doctor’s wife did not drive an automobile and the doctor gave the keys to his car to Mrs. Lillian Berndt so that she might drive it; that Mrs. Lillian Berndt was an experienced driver, having driven a car for 11 years and having driven the Adelbergs ’ car on several previous occasions.

The evidence further discloses that the automobile in which plaintiff was a passenger was driven to Elston avenue, and then on Milwaukee avenue to the Waukegan Road and then north on Waukegan Road; that the maximum speed on the trip was between 35 and 40 miles an hour; that Waukegan Road is a 4-lane highway and Lake avenue, which is not a through street but ends at Waukegan Road, is also a 4-lane highway for a distance of about 250 feet east of Waukegan Road, where it narrows down to a 2-lane highway ; that the defendant Mrs. Berndt had never driven on Lake avenue before; that it was a moonlight night and the lights on the automobiles were lighted and cast a light on the pavement for approximately 50 feet ahead of the automobile; that as the defendant Lillian Berndt continued east the automobile went off the paved portion of the road and on to what is known as a “shoulder” of the pavement, being a strip of gravel about two feet wide and beyond that was a strip of grass which sloped down into a ditch; that when the automobile was on this strip of grass, the defendant Mrs. Berndt tried to turn the car back on to the road, but it slid down after traveling about 50 feet and struck a culvert, injuring the plaintiff as well as the driver of said automobile.

Hazel Proud, the plaintiff, testified that the defendant, Mrs. Lillian Berndt, at the time of the accident had her head turned and was talking to the other parties in the back seat, which said defendant denies; that when the car turned east on Lake avenue she said to the defendant, “Oh, lady, you are off the road” and that defendant continued to drive this way, except that she may have put on the brakes as they slowed down, until they slid into the ditch; that defendant had practically abandoned the car until it landed in the ditch and hit the cement culvert which was over the ditch.

Plaintiff further testified that on the way out to the golf course the defendant Mrs. Berndt drove the car at a speed of from 50 to 55 miles an hour while driving on Waukegan Road; that when she turned the corner at Lake avenue she was going at the rate of 35 miles an hour and made a wide turn, going on to the left side of the street because of her speed. This evidence was contradicted by the other witnesses who stated that they traveled at a speed of 30 to 40 miles an hour and that the defendant, Mrs. Berndt, testified that she went around the corner at Lake avenue at about 22 miles an hour. Plaintiff further testified that she was annoyed • by the defendant looking around constantly.

There is no evidence in the record as to what is supposed to be the legal and proper speed in that territory, and there is no charge that defendant violated any law or any ordinance, nor is there any evidence as to the nature of the territory, whether it was built up or congested, or a typical country highway.

The defendant Lillian Berndt testified that she had driven an automobile for nearly 11 years; that she had driven Dr. Adelberg’s car several times prior to the time of the accident; that she drove the car on the occasion in question at the rate of 35 to 40 miles an hour; that she had never driven on Lake avenue prior to the time of the accident; that as she turned on to Lake avenue, the clear headlights of an automobile approaching from the opposite direction blinded her so that she could not see that Lake avenue suddenly tapered down from a 4-lane highway to a 2-lane highway; that the automobile went about 50 feet after the lights blinded her; that she had been driving on the shoulder of the road about 50 feet before she realized it and that she then felt the car slipping and attempted to turn back on to the road; that after leaving the gravel she went a few feet before striking the culvert; that the plaintiff said nothing to her about being off the road; that an automobile was approaching her at about 35 miles an hour.

The defendant Lillian Berndt further testified that when she got out of the car her head was bleeding; that she had hit the shift gear with her knee and the steering wheel crushed her chest.

All the witnesses who rode in the automobile with Mrs. Berndt agreed that in driving out to the golf course they were stopped many times by the changing of traffic lights and that the driver of the automobile observed all of them.

Dr. Adelberg, one of the defendants, testified that Mrs. Berndt had driven his car on 10 or 12 occasions previous to the time of the accident; that his car was in good mechanical order and the lights were in good working order.

Counsel for plaintiff contends that the evidence shows, as alleged in the declaration, wilful and wanton misconduct which proximately caused the accident, as a result of which plaintiff was injured; that Dr. Adelberg, by his agent or servant, the other defendant, with conscious indifference to surrounding circumstances and conditions, wilfully and wantonly drove the said automobile off the highway into a ditch adjacent thereto, etc.

Counsel for defendants contend that while there may have been negligence, there was no evidence of wilful and wanton misconduct on the part of the defendants.

The first and only question to determine is whether or not the evidence is sufficient to show wilful and wanton misconduct on the part of defendants.

In Provenzano v. Illinois Cent. R. Co., 357 Ill. 192, at page 195, the Supreme Court said:

“In order to constitute wilful and wanton misconduct the injury must either have been intentionally inflicted, or produced by acts so grossly negligent as to exhibit a reckless disregard for the safety of others.” In Streeter v. Humrichouse, 357 Ill. 234, at page 238, the court said:

“Ill-will is not a necessary element of a wanton act. To constitute an act wanton, the party doing the act or failing to act must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of the surrounding circumstances and conditions, that his conduct will naturally and probably result in injury. An intentional disregard of a known duty necessary to the safety of the person or property of another, and an entire absence of care for the life, person or property of others, such as exhibits a conscious indifference to consequences, makes a case of constructive or legal wilfulness.”

In Noslco v. O’Donnell, 260 Ill. App. 544, the court at page 551, said: “Primarily, the words ‘wilful and wanton’ convey the thought of intentional injury, and this is undoubtedly the reason that contributory negligence is not allowed as a defense to an action charging facts which constitute wilfulness and wantonness. This does not mean that there must be proof that defendant was actuated by ill will (Illinois Cent. R. Co. v. Eicher, 202 Ill. 556), but a consideration of the cases discloses that the conduct which in law will be held wilful and wanton must be either such conduct as intentionally inflicts an injury or conduct which ethically, under the facts and circumstances appearing, is the equivalent thereof.”

In passing upon the question as to whether or not the defendant, Dr. Adelberg, could be guilty of wilful and wanton misconduct at the time of the accident, when he was several miles away playing* golf, we do not believe the evidence here shows any wilful or wanton act on his part or on the part of the other defendant, Mrs. Lillian Berndt.

The evidence shows that Dr. Adelberg, the principal defendant, evidently desiring* to entertain and provide a pleasant time for some of his friends, which included his patient, the plaintiff, and her husband, conceived the idea of taking them all out to the golf club for the evening. To accomplish this purpose the men preceded the ladies on the trip out to the club as the men .wanted to play some golf. In order that the doctor’s wife and the other women would have means of transportation to the golf club he gave the keys to his automobile to Mrs. Lillian Berndt, the other defendant herein, and at the time his car was in good mechanical condition. Mrs. Berndt, as shown by the evidence was an experienced driver, having driven some 10 or 11 years and had driven this particular automobile on some 10 or 12 occasions previous to the time of the accident.

The evidence further shows that she drove the car at a reasonable rate of speed, observing the traffic signals, and apparently used due care in the operation of the automobile; that as she approached the intersection where Lake avenue joins Waukegan Road, she turned to the right and was blinded by the lights of an automobile which was approaching from the opposite direction. At that point the road narrowed down to a 2-lane highway. The driver did not know that the road narrowed down at that point as she had never been on it before and made the mistake of continuing straight ahead. No one advised her of the narrowing of the road and, as soon as she became conscious of it, she tried to right the car by turning on to the concrete, but the automobile apparently slipped on the grass at the edge of the gravel and she was unable to get back on the road and struck a culvert. She was injured as well as the plaintiff. From the evidence before us it appears that the accident was inevitable. There were no lights there or other signals to warn the driver of the automobile of the danger ahead or that the road narrowed down and with the bright lights of an approaching automobile temporarily blinding her, she did not notice that the road narrowed down to a 2-lane road.

Plaintiff contends that the driver of the automobile had her head turned, talking to the parties in the rear seat at the time of the accident, but this is denied by the defendant and the other witnesses.

In the case of McGuire v. McGannon, 283 Ill. App. 293, the court in quoting from Jones v. Massie, 158 Va. 121, 163 S. E. 63, at page 302, said:

“ ‘The law is well settled that a person using a street or public way in the ordinary manner has the right, in the absence of knowledge to the contrary, to act on the assumption that the street or way, throughout its entire width, or so much of it as is intended for travel, is in a reasonably safe condition, and he is not required as a matter of law to be on the lookout for defects or obstructions therein.’ City of Richmond v. Courtney, 32 Grat. (73 Va.) 792; 43 C. J. 1078; Bedford City v. Sitwell, 110 Va. 296, 65 S. E. 471. . . .”

And in the same opinion, Mr. Justice Hebei speaking for the court at page 301, said:

“The driver of the automobile for the defendant is charged with wilful and wanton conduct in the operation of the automobile as his agent. Apparently, from the record, the operation of the car by her was careful, and was questioned by the plaintiff only as to the intersection in question. It seems rather strange that this driver would operate the car in so wilful and wanton a manner as to be chargeable with a desire to injure the occupants of the very car of which she was the driver. This would seem to be contrary to the law of self-preservation. The mishap occurred not because of acts which were wilful or wanton, but for the reason that the spotlight interfered with her vision, and the further fact that the end of the road was not so protected that drivers of oncoming cars would be warned as to the condition of the road beyond the end of the concrete pavement.”

It is contended by the plaintiff that the case of Murphy v. King, 284 Ill. App. 74, opinion by writer, supports the position they take in the case at bar. In that case this court said: “It may well be that a segregated single act, such as passing a stop light, excessive speed or the non-observance of a through street, if taken by itself, would not show wilfulness or wantonness, but when considered collectively under the circumstances presented, together with the result flowing therefrom, these acts show such a conscious indifference as to consequences as to render defendant’s act wilful and wanton.”

In the Murphy case, the reckless acts of the driver of the automobile were continuous, over the protests of her passenger, and in violation of the laws, and directly contributed to and were the proximate cause of the accident. In the instant case the testimony of plaintiff that the driver exceeded the speed limit, without any protest, on Waukegan Eoad several miles from the point where the accident occurred, would, if it were true, have no direct connection with the driver running off the road on Lake avenue several miles beyond that point.

From a careful review of facts and circumstances presented to us and the law applicable thereto, we do not believe the evidence shows wilful and wanton misconduct on the part of the driver and certainly not on the part of Dr. Adelberg who, at the time of the accident was playing golf several miles away. We do not believe the evidence as shown in the record supports the verdict and judgment of the circuit court.

For the reasons herein given the judgment of the circuit court is reversed and the cause is remanded.

Judgment reversed and cause remanded.

Hebel and Hall, J J., concur.


text:
    Vera Lill, Appellee, v. Murphy Door Bed Company of Chicago and Chicago Title and Trust Company. Appeal of Murphy Door Bed Company of Chicago, Appellant.
    Gen. No. 39,151.

      Opinion filed May 19, 1937.
    Wendell H. Shanner, of Chicago, for appellant; Charles Y. Laughlin, of Chicago, of counsel.
    Ryan, Sinnott & Miller, of Chicago, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment entered against the defendant Murphy Door Bed Company of Chicago, a corporation, in an action in case in the superior court on the verdict of a jury for the sum of $4,000 in favor of plaintiff Vera Lili.

The action was filed prior to the adoption of the Civil Practice Act and is not governed by same. The suit was originally brought by plaintiff, Vera Lili, against the Murphy Door Bed Company of Chicago, a corporation, and the Chicago Title and Trust Company, a corporation, as trustee under a certain deed of trust, to recover damages for personal injuries alleged to have been sustained by plaintiff when a bed in which she was lying is alleged to have broken and injured her.

At the close of plaintiff’s case the trial court directed the jury to return a verdict of not guilty in favor of the defendant, Chicago Title and Trust Company. The case was submitted to the jury as to the defendant Murphy Door Bed Company of Chicago, against which company the verdict was returned.

A special demurrer to plaintiff’s original declaration, consisting of two counts, was sustained. An amended declaration Was filed which also consisted of two counts and upon which plaintiff proceeded to trial. The first count alleges that the plaintiff was a tenant in a building located at 535 Cornelia avenue, which was owned by the defendant Chicago Title and Trust Company, as trustee; that plaintiff’s apartment was furnished with a bed, which was constructed and installed in such a manner that, when not in use, it could be secreted in a closet provided for that purpose; that the said bed was manufactured by defendant Murphy Door Bed Company of Chicago and by that company sold to the owner of the building; that Murphy Door Bed Company, in disregard of its duty, carelessly, negligently and wrongfully manufactured, sold and delivered the bed in a defective condition and, as a result of such defect, the bed broke while the plaintiff was using it and she thereby incurred the injuries of which she complains.

The second count of the amended declaration is substantially the same as the first count, except that it alleges more specifically that the defendant Murphy Door Bed Company of Chicago failed to inspect or test the said bed before selling and installing the same.

At the time of the trial, by leave of court, plaintiff was permitted to file two additional counts to her declaration and at that time the Chicago Title and Trust Company the other defendant had already been directed out of the case. The additional counts, therefore, declared only against the present defendant, Murphy Door Bed Company of Chicago, hereinafter referred to as defendant.

The two additional counts are substantially the same as the two original counts of the amended declaration, except that they do not allege that defendant manufactured the bed in question. They allege that the defendant sold and installed the bed and, held itself out to the public as the manufacturer.

The first additional count alleges that the defendant delivered and installed the bed in a defective condition, and in the second additional count that the defendant did not perform its duty to inspect and test the bed.

Defendant demurred to the additional counts, which demurrer was overruled. The court sustained the motions of the defendant Murphy Door Bed Company of Chicago for a directed verdict in its behalf, at the close of all'the evidence, as to the first and second counts of the amended declaration, but denied similar motions as to the two additional counts. Consequently, the case was submitted to the jury only upon the two additional counts.

The second point on the pleadings is that after the court overruled the defendant’s demurrer to the additional counts, the defendant filed two pleas: (1) A

plea of the general issue and (2) a plea that the cause of action, if any, set out in the two additional counts was barred by the limitation period provided by our statutes. Plaintiff’s demurrer to this plea was sustained and the ruling of the court is urged as error.

Plaintiff contends that the defendant sold the bed, which caused plaintiff’s injury, to the owner of the building at 535 Cornelia avenue; that defendant held itself out to the public as the manufacturer of the bed because the word “Murphy” was engraved upon certain of the metal castings of the bed; that because of such representation or holding out, the defendant assumed the same liability toward plaintiff as though it had manufactured the bed; that the bed was defective, which defect was the result of careless and negligent manufacture and that the bed was not properly inspected and tested before being put upon the market; that the manufacturer knew of such defective condition or by the exercise of reasonable care could have known of it.

Plaintiff further contends that she was a tenant in the building located at 535' Cornelia avenue and occupied the particular apartment in which the bed which caused her injuries was located; that while in the exercise of due care for her own safety, she was lying on the bed preparatory to retiring for the night, that the U-shaped bar referred to broke, causing the bed to assume an abnormal position, and causing a hinged headpiece to swing over and strike her on the head, causing the injuries of which she complains.

Defendant contends that it owed no duty to the plaintiff to exercise any care whatsoever in the sale or installation of the bed in question because no privity of contract existed between plaintiff and defendant; that it did not sell the bed to plaintiff but to the owner of the building in which plaintiff became a tenant; that the evidence does not establish the existence of any of the three exceptional situations in which a manufacturer or vendor of an article may owe a duty to exercise care to those with whom there is no privity of contract; that a bed is not an inherently dangerous instrumentality intended to preserve or destroy life; that defendant neither by implication or otherwise invited the plaintiff to make nse of the bed in question; that the defect in the bed, if there was a defect, was not of such a nature as to render its use so imminently dangerous that injury was likely to result therefrom.

Defendant further contends that unless facts are proven which bring a case within the scope of one of these three situations, a manufacturer or vendor owes no duty to one, other than the purchaser, to carefully manufacture or to inspect the article sold; that as an additional alternative theory, even if it owed some duty to the plaintiff, the evidence does not show that it violated any such duty.

Defendant further contends that it was not a manufacturer of beds and did not manufacture the bed in question but only sold beds manufactured by the Simmons Bed Company; that the duty of a vendor is less than that of a manufacturer; that in regard to the argument of plaintiff that defendant held out to the public that it was the manufacturer of the bed, defend-, ant contends in the alternative: (1) That even if it did cause it to appear that it manufactured the bed, that circumstance is legally immaterial; and (2) That the defendant did not represent to the public that it manufactured the bed in question, and that the presence of the word “Murphy” upon the metal casting of the bed did not constitute such a representation, but was consistent with the status of the defendant as a mere vendor.

Defendant further contends that the two additional counts to the plaintiff’s amended declaration do not state a cause of action; that the court erred in sustaining the plaintiff’s demurrer to its plea of the statute of limitations filed to those counts and that the court committed errors during the trial.

The evidence shows that the plaintiff Vera Lili was at the time of the trial 28 years of age and at the time of the accident was occupying a two-room apartment with her friend Myrtle Lenander at 535 Cornelia avenue ; that plaintiff had leased the apartment from the Chicago Title & Trust Co., trustee, in which apartment the bed which caused plaintiff’s injuries was installed. The bed was in the living room which was the largest room in the apartment which consisted of a living room, a kitchenette, a dressing room and a bath room. On the west wall of the living room was a large closet in which the bed was kept When not in use. There was a door to that closet which could be closed when the bed was placed therein. In order to put the bed into the closet the bed had to be in a vertical position and when one wished to let the bed down at night one would swing it around into the living- room; that the bed was attached to the door jamb that it swung around on. There were two legs at the foot of the bed when the bed was in an upright position, the legs were parallel with the mattress, they folded down, and when the bed was in a horizontal position for use the legs were at right angles with the mattress and with the floor. They held the bed up. There was a headpiece on the bed which was of metal which weighed about 8 pounds and extended across the width of the bed and when the bed was in an upright position to be put away, that, piece was parallel with the mattress. When the bed was lowered for use that piece was in an upright position and at a right angle to the bed. The bed was supported at the head by a U-shaped piece of iron metal. The base castings of the bed did not rest on the floor as legs do, but were approximately an inch above the floor and carried the weight of the head end of the bed by being attached to the jamb frame, which was attached by the lower casting to the door jamb. The metal piece at the head of the bed was movable and was about 17 inches from the hinge to the top and about 53% inches wide. The bed was 6 feet 3 inches in length and the permanent parts were all made of metal. To lower the bed for use it was necessary to swing it around on the door jamb and then pull it down and in lowering the bed, the frame of the bed operated on pivots on the base castings about a foot from the jamb frame. The headpiece at its lower ends was attached by hinges to certain metal posts which, together with the headpiece, formed the head of the bed. Attached to the rear of the upper horizontal bar of the headpiece was a helical spring which connected the top of the headpiece to the top of the so-called carrying frame or jamb frame. The pivot castings were inserted in the sockets which were attached to the jamb of the door and the weight of the bed was supported by the lower or base castings, one of which broke at the time of the accident and injured plaintiff.

The evidence further shows that on the nig’ht of the accident as plaintiff was preparing for bed the young woman who shared the apartment with her opened the door of the bed closet in the usual manner, swung the bed out into the living room and lowered it into a horizontal position with the legs of the bed resting on the floor; that after plaintiff got in bed and was about to lay her head on the pillow the head end of the bed dropped and plaintiff received a terrible blow on her head which rendered her unconscious. The U-shaped bar or base casting on the left side of the bed had suddenly broken, causing the bed to drop and the legs at the foot of the bed to fold under and the headpiece or part of it to drop forward from its vertical position and strike the plaintiff.

Counsel for plaintiff urges that the defendant Murphy Door Bed Company had a bed manufactured for it which it held out to the public as its product and thereby the defendant assumed liability toward the plaintiff; that the bed was defective which defect was the result of the bed having been carelessly and negligently manufactured; that the manufacturer either knew of the defective condition, or with the exercise of due care could have known of this condition and had not properly inspected or tested the bed before putting it upon the market and the defendant because of its holding out to the public that it was the manufacturer was responsible for the manufacturer’s negligence and is liable as though it had manufactured the bed.

Plaintiff testified that on the night of the accident the bed had been lowered into a horizontal position by Miss Lenander, the other occupant of the apartment, and that as she, the plaintiff, went to bed she sat on the edge of the bed for a minute or two and then swung her legs up on the bed and started to lean back; that as she did so she felt the head end of the bed just drop slightly and then that she felt a terrible blow on her head and that is all she remembered; that at the time of the accident she weighed 118 pounds and that as she got into bed she did not jump in, but just sat down quietly.

Plaintiff further testified that prior to the accident she indulged in athletics, played golf frequently and enjoyed swimming; that she danced and did a lot of walking and that her health was very good; that after the accident when she regained consciousness her head hurt terribly and that she was very dizzy and nauseated and the next day her head ached worse than it did just after the accident; that she did not return to her employment until about a month after the accident and then she would go down late in the morning and come home early, a few hours each day; that she was not paid for the time she was not working; that after she started to work steadily she still had headaches and dizzy spells and found it difficult to concentrate upon her work and at the end of the day she felt terrible; that she was nervous and finally had to resign in February, 1933; that she did not go back to work again until August, 1933; that at the time of the trial she still complained of headaches and dizzy spells.

Myrtle Lenander Colcaire, the other young woman who shared the apartment with plaintiff, testified that on the night of the accident she lowered the bed into the living room in the usual manner and while she was in the bathroom she heard a crash and rushed back into the living room and found the plaintiff “all crouched” in a heap on the bed; that plaintiff’s head was on the bed covers and the bed clothes were covered with blood and plaintiff appeared to be unconscious and she tried to arouse her; that she then telephoned the Belmont Hotel and asked them to send over the house doctor; that she also telephoned the manager of the building in which they lived; that the doctor came and sewed up the wounds in plaintiff’s head.

The witness Colcaire further testified that after the accident she noticed that the bed was out of position ; that the spring was loosened from the head board and it had become disengaged from the other mechanical apparatus on which the bed swung and that the legs of the bed had folded and that the H-shaped bar had become disjointed and broken; that she talked with Mr. Howard, the manager of the building, and he pointed out where the pipe had broken that the paint had run through the crack on the metal on the inside of the pipe; that the pipe she referred to was a solid iron bar.

Dr. A. B. Rimmerman, called in behalf of plaintiff, testified that he had been practicing medicine and surgery for the past 23 years and that on or about September 19, 1932, he received an emergency call and found the plaintiff lying in bed in a pool of blood and unconscious; that he tried to stop the bleeding from the scalp and head which was from the posterior lateral near the back and side of the body; that he sewed up plaintiff’s head and examined for any possibility or probable fracture or paralysis, pupil examination, etc., and waited until she became conscious; that he diagnosed her condition as concussion of the brain, laceration of the scalp, possible fracture; that he later had X-ray pictures taken of her head; that the X-ray pictures did not show any pathological condition of the skull; that he attended her every day for 10 days and thereafter about 2 or 3 times a week, gradually decreasing the number of visits; that she was under his care from September, 1932, to March, 1933; that during that time she made complaints of headaches and dizziness, especially on exertion of work, she was melancholy, and nervous; that a concussion of the brain is a shaking up of the brain and that hemorrhages scatter throughout the surface of the brain; that she was unable to work but for a few hours at a time and that he advised complete rest until she had fully recovered; that he made a charge for his services of $150.

Joseph A. Borque, called as a witness on behalf of plaintiff, testified that he lived at 535 Cornelia avenue, Chicago; that he was the engineer of the building in which plaintiff lived at the time of the accident; that the day after the accident the bed was taken to the service hall and that he examined it and that the casting appeared to be defective; that he took the casting-part for the photographer and the examination was made under a high light; that it had the appearance of a burned piece of iron, it looked more like a sand hole. It looked to be 40 to 60 per cent defective.

George Hildebrand, called as a witness on behalf of defendant, testified that he was assistant manager for the Murphy Door Bed Company and had been employed by them for 13 years. He identified plaintiff’s Exhibits 2 and 3, being a catalogue and literature issued by the Murphy Door Bed Co. of Chicago. This literature was issued by the defendant and declares them to be the makers of this bed. After stating that the bed is sturdy and offers all that one could ask in sleeping comfort, it states, “The makers of this bed offer you more than the bed itself; they place at your . disposal the accumulated experience of architects and builders in the successful inclusion of the Murphy In-A-Dor Bed in every type of building from tiny love nest bungalows to towering hotels.”

At another place in the literature issued by the defendant, it is stated: “All castings of the Murphy In-A-Dor Bed are malleable iron — iron that does not break. ’ ’

As to the contention of the defendant that the statute of limitations should have been sustained as to the amended declaration, we think that under section 39 of the Practice Act of 1907, as amended in 1929, the court did not err in permitting the additional counts filed and plaintiff was not barred by the statute of limitations. These counts did not state a new cause of action, but were in the nature of an amendment to correspond with the proof. Skala v. Lehon, 343 Ill. 602; Zister v. Pollack, 262 Ill. App. 170.

As to defendant’s liability, we do not think there is any difference between the liability of a manufacturer and one who holds himself out to be a manufacturer.

In the case of Davidson v. Montgomery Ward & Co., 171 Ill. App. 355, the situation presented is very similar to the case at bar. In that case a person was injured by a saw which was not manufactured by the person who sold it and the question there discussed was whether there is a distinction as to the liability of an actual manufacturer or one who holds itself out to be a manufacturer. There, as here, the appellant claimed himself to be a mere vendor. The catalogue from which the saw was ordered contained the following statement: “You are safe, perfectly safe, in ordering . . . that is why we.offer you only standard make, regular size, thoroughly tested implements,. known to every one by years of reputation as the best made.”

. In the case at bar the defendant held itself out to be the manufacturer of the bed by which the plaintiff was injured. The bed was represented by the defendant to be safe, that the castings were made of “malleable iron — iron that does not break. ” As a matter of fact the piece of iron which broke at the time plaintiff sustained the injuries complained of was defective as the exhibit before us plainly shows as the paint which was put on the casting ran into the cracked portion and could have been easily detected by a proper test or inspection.

Again in the case of Davidson v. Montgomery Ward & Co., 171 Ill. App. 355, the court quoting from the case of Cunningham v. C. R. Pease Mouse P. Co., 74 N. H. 435, after citing the case of Ricker v. Freeman, 50 N. H. 420, said: “Such a person must respond in damages to those who are injured because of his acts, if he either knew or ought to have known that the materials were dangerous and that the persons injured might come in contact with them. . . .

“Vendors and manufacturers have been held liable for injuries to third persons because of dangerous defects in articles sold by them, which were falsely represented to be perfect and safe, or to have been carefully tested; ...”

Defendant further contends that it is not liable for the reason that there was no privity of contract between the injured person and the defendant. That is true as a general rule, but, in the case of Colbert v. Holland Furnace Co., 333 Ill. 78, the court at page 81, said: ‘ ‘ The rule, however, has several exceptions, and the question to be here determined is whether, under the facts as shown by the evidence in this case, it comes within any of such exceptions. One of the well recognized exceptions to the rule is, that one who supplies a thing for such use by others that it is obvious that any defect will be likely to result in injury to those so using it is liable to any person who, using it properly for the purpose for which it is supplied, is injured by its defective condition. (29 Cyc. 484; Hayes v. Philadelphia Coal Co., 150 Mass. 457; Devlin v. Smith, 89 N. Y. 470; Connors v. Great Northern Elevator Co., 90 N. Y. App. Div. 311; . . . The doctrine of invitation has been invoked as a ground of liability in such cases, proceeding upon the theory that he who furnishes a thing for a certain use by others invites others to use it, and is therefore bound to make it safe for such purpose. This rule is consonant with reason and justice and is not inconsistent with any of the decisions of this court, and is especially applicable to the facts of the instant case. . . . The law is presumed to furnish a remedy for every wrong. The defective condition was hidden from ordinary observation and was a latent defect of which the owner, who accepted the work, would not be chargeable with knowledge of its defective construction. We are of the opinion that the facts in this case bring it clearly within the exception to the rule above stated, and that justice requires that plaintiif in error should compensate defendant in error for the injuries which she has sustained by reason of the defective installation of the grating over the cold air shaft.” Wintersteen v. National Cooperage & Woodenware Co., 361 Ill. 95.

We think the rule in this State is that whgn an article is constructed by a manufacturer for others and, by reason of negligence, uses defective material or fails to use ordinary care in testing and inspecting the article after it is manufactured and before it is put into use and by reason thereof persons using the same are likely or liable to be injured, such manufacturer or one who holds himself out to be the manufacturer is liable to such person who suffers injury, through such negligence, while using such article in a proper manner. This is true even though there be no privity of contract between the manufacturer and such persons.

The length of time before the defect in the construction became known would not, in our opinion, preclude the plaintiff from her right to recover damages for the injuries sustained, because when the accident did occur it was the result of the negligence of the defendant in failing to properly test said bed before its sale and discover the defective casting. Siegel, Cooper & Co. v. Troica, 218 Ill. 559, 564; Pierce v. C. H. Bidwell Thresher Co., 153 Mich. 323.

It is claimed by the defendant, appellant here, that the jury was improperly instructed and counsel particularly criticizes the giving of plaintiff’s instruction 11 referring the jury to the declaration. The defendant is scarcely in a position to criticize this instruction and the action of the court in giving it, for the reason that in a peremptory instruction, given at the behest of the defendant, the defendant used practically the same language. It is a well-known rule that a party cannot be heard to criticize an error if a like error appears in instructions submitted by him. In the case of Lerette v. Director General of Railroads, 306 Ill. 348, the court said:

“It is contended that the court erred in giving certain instructions at the request of appellee which referred the jury to the declaration to determine the issues. This form of instruction has been repeatedly condemned by this court. (Krieger v. Aurora, Elgin & Chicago Railroad Co., 242 Ill. 544; Laughlin v. Hopkinson, 292 id. 80.) But appellant is in no position to urge the question in this case, for the reason that the same error is found in many instructions given at the request of the defendants below. Mclnturff v. Insurance Co. of North America, 248 Ill. 92; Fleming v. Elgin, Joliet & Eastern Railway Co., 275 id. 486.”

It is next claimed by defendant that error was committed by the court in permitting the invoice, under which the bed involved in this accident was sold to the building, to be introduced in evidence, as the guarantee or contract on the back of said invoice might mislead the jury and cause them to believe that the cause of action was based on said guarantee which by its terms had expired. While we think it would have been better to have deleted this part of the invoice and avoided any possibility of error, yet we do not believe the error was sufficiently grave to justify a reversal of the judgment.

It is next contended that the damages are excessive. The plaintiff was a young woman of 25 years of age at the time of the accident. On the night of the accident she was just about to retire for the night and just as she was about to place her head upon the pillow she received a terrific blow on the back and left side of her head, as a result of a casting on the bed breaking which caused a movable headpiece on the metal bed to strike her, rendering her unconscious. Plaintiff’s scalp was lacerated and when the doctor arrived he took two deep sutures and four skin sutures to close the wound. She remained unconscious for approximately a half hour. The doctor diagnosed the injury as concussion of the brain, laceration of the scalp and possible fracture. Subsequently it was found that the skull was not fractured. The doctor treated her daily for 10 days. After recovering consciousness she was in severe pain, dizzy and nauseated for a week thereafter and at the time of the trial still complained of her health, as the result of her injuries, and the doctor prescribed the use of a physiotherapy lamp, infra red lamp, sedatives for headaches and medicines for nervousness.

Prior to the accident plaintiff: had a responsible position from which she derived a salary of $130 per month. A month after the accident she started back to work, working short hours, arriving at work late in the mornings and leaving early in the afternoons, but she suffered from headaches, nervousness and dizzy spells and at night was troubled with nightmares and loss of sleep and she was finally compelled to resign from her position and was unable to do any further work until the following August. At the time of the trial which was nearly two and a half years after the accident she still complained of headaches and dizzy spells, which occurred sometimes three or four days a week.

We do not think the evidence shows that the damages allowed by the jury are excessive. The awarding of damages is peculiarly within the province of the jury and unless the court is convinced that they are excessive, it will not alter the verdict.

In Chicago & Alton R. Co. v. Fisher, 38 Ill. App. 33, 43:

“In Sutherland on Damages, Vol. 1, p. 810, it is said: ‘When there is not a legal measure of damages, and when the damages are unliquidated, and the suit is referred to the discretion of the jury, the court will not, ordinarily, interfere with the verdict. It is the peculiar province of the jury in such cases, under appropriate instructions from the court, to decide such cases, and the law does not recognize in the court the power to substitute its own judgment for that of its jury.’ ”

As before stated we are not impressed with the claim that the amount of the verdict of $4,000 is excessive, considering the pain and suffering, the loss of salary and expense plaintiff incurred as a result of her injuries.

We do not find any error in these proceedings which would justify a reversal and for the reasons herein given, the judgment of the superior court is affirmed.

Judgment affirmed.

Hebei, and Hail, JJ., concur.