author: Mr. Justice McSurely

text:
    Cody Buren, Appellee, v. Mercury Press, Inc., Appellant.
    Gen. No. 38,095.
    Heard in the first division of this court for the first district at the April term, 1935.
    Opinion filed May 6, 1935.
    O’Shaughnessy, O’Shaughnessy & Cunningham, of Chicago, for appellant; Walter F. Cuhhihgham and Joseph C. Stastny, of Chicago, of counsel.
    Harold A. Feih, of Chicago, for appellee; Mordi E. Kallick, of Chicago, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff, bringing suit for a balance of salary claimed from defendant, upon trial by the court had judgment for $700, from which defendant appeals.

In September, 1933, a written agreement was entered into between the parties whereby defendant employed plaintiff at $135 a week. The contract ran for a year, but with a provision that defendant might terminate it at the expiration of six months unless plaintiff produced sales for defendant to an amount stated. The contract was terminated at the end of six months. Plaintiff claimed there was then due him $50 a week for 14 weeks, or $700. Defendant admits that $50 a week for this period was deducted from the salary of $135 a week provided in the contract, but says this was pursuant to an oral agreement to modify the written agreement, whereby plaintiff was to receive $85 a week, and the balance of $50 a week was to be paid only out of profits of the business plaintiff might procure.

Thomas Boot, vice president, treasurer and general manager of defendant, testified that such a modification was made. Plaintiff testified to the contrary. His version of the agreement was that in the latter part of November a verbal agreement was made whereby $50 of his weekly salary was to be retained by defendant until such time as defendant’s finances were in better shape, or until plaintiff left its employ; he testified he was on a straight drawing salary of $135 a week and that nothing was said about paying commissions on the business he brought in.

Defendant’s books tend to support plaintiff’s version of this verbal agreement. The account, up to January 1,1934, shows that the $50 a week retained by defendant from plaintiff’s salary was charged to “Accounts Payable” and the “Pay-Boll account” was credited at the rate of $135 a week. The bookkeeper testified that by the end of December the books showed $150 due plaintiff for salary. The book entries subsequent to January 1, 1934, were changed under instructions from Mr. Boot, and the $50 weekly salary retained, instead of being charged to the pay roll account was charged to the commission account. There is substantial evidence, however, that this change was made after plaintiff’s employment terminated and after demands were made by him for the payment of the balance due on his salary. It is stipulated that the originals of the book entries indicate that erasures and entries were made changing the account from its original condition. The bookkeeper admitted that she made these changes all at one time.

The books also show that in compiling defendant’s income tax return for 1933 the item of $150 credited to plaintiff’s account as additional salary was deducted in determining the net profits.

The court was justified in finding that there was a balance of $700 due plaintiff.

Plaintiff asked for an allowance of $150 as attorneys’ fees, which the court refused. On cross appeal he asks for this allowance. A proper demand was made on defendant for the balance, and it was stipulated that $150 is a reasonable attorney’s fee. The question presented is whether plaintiff’s employment as a salesman or solicitor of business at the salary named falls within the provision of the Illinois statute, Cahill’s St. ch. 13, f| 14, which provides:

“That whenever a mechanic, artisan, miner, laborer or servant or employee shall have cause to bring suit for his or her wages earned and due, and owing according to the terms of the employment, and he or she shall establish by the decision of the court or jury that the amount for which he or she has brought suit is justly due and owing and that a demand has been made, in writing, at least three days before suit is brought, for a sum not exceeding the amounts so found due and owing, then it shall be the duty of the court before which the case shall be tried, to allow to the plaintiff, when the foregoing facts appear, a reasonable attorney fee in addition to the amount found due and owing for wages, and in justice court such attorney’s fee shall not be less than $5, and in the county or circuit court, not less than $10, to be taxed as costs of suit.”

Rowland v. Records, 43 Ill. App. 198, involved a claim for attorneys’ fees in a suit to recover the salary of a salesman; the judgment was reversed and the cause remanded because no proof was made as to the service of the demand, although the opinion seems to indicate that had proper service been made the plaintiff would have been entitled to recover attorney’s fees. In Standard Fashion Co. v. Blake, 51 Ill. App. 233, the court reversed an allowance of attorneys’ fees on the ground that the plaintiff, a traveling salesman, was not an employee within the meaning of the statute. This was based on two earlier cases in the Appellate Court, but an examination of them shows they were not in point. In Vogel v. Pekoc, 157 Ill. 339, the statute above quoted was declared constitutional, the court saying on petition for rehearing: “It embraces a well-defined class of cases and persons, not singled out, as is contended, wholly without reason, and arbitrarily, hut upon grounds which may, we think, properly serve as a basis for valid legislative action. Those to whom the wages of labor are due, and who, after demand, in writing, of a sum no greater than that subsequently recovered, are compelled to establish and do establish their rights, as demanded, by judgment of court, are within the provisions of the act, and we cannot say this classification is so arbitrary and unreasonable, and the law so partial and unequal, as to be beyond legislative discretion and power.”

In Manowsky v. Stephan, 233 Ill. 409, the court said that this statute applies “only to wage earners. The amount claimed by them in most instances will not, in the nature of things, be large, and often so small that the persistent refusal of the employer to pay would, in effect, result in the denial of the employee’s right to recover, for the reason that the sum that the latter would necessarily be obliged to pay for attorney’s fees would be greater in amount than the sum due from the employer. Persons to whom the benefit of that statute was extended are persons composing a class who are in a condition making it proper to afford to them the remedy granted by that statute, and the statute applies to all wage earners without discrimination ...” Goodridge v. Alton, 140 Ill. App. 373, involves the claim of attorneys’ fees of a transit man and topographer receiving $100 a month. The opinion says that the word “employe” in the statute was not used in its broadest sense, for it was preceded by the words “mechanic, artisan, miner, laborer or servant”; that “if the legislature intended to provide that all ‘employes, ’ using the word in its largest sense, should in judgments for wages or salary be allowed attorneys’ fees, then those words are superfluous. The use of those words in the statute preceding the word ‘employe ’ indicates that the word ‘employe’ was used in a limited and restricted sense, and was not intended to include all persons who were in the service or employment of other persons, irrespective of the degree or nature of their service or employment. The word ‘employe’ in the statute is a word of larger import than the words ‘mechanic, artisan, miner, laborer or servant’ which precede it. When a general word follows a particular one, the rule is to construe it as applicable to persons ejusdem generis. Sandiman v. Beach, 7 B. & C., 96. The word ‘employe’ in the statute, we think, must be held to comprehend and include all persons employed to render to another regular, continuous and exclusive services of the same general degree, kind and nature that are due from a ‘mechanic, artisan, miner, laborer or servant.’ ” This reasoning seems to us convincing. It could not be said with any degree of accuracy that one employed as a salesman or as a solicitor of business for a printing establishment, such as the plaintiff was, is engaged in services like those of a “mechanic, artisan, miner, laborer or servant.”

We hold that the court properly denied plaintiff’s claim for an allowance of attorney’s fees.

For the reasons indicated the judgment is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: Mr. Justice Matchett

license: Public Domain

text:
    William E. Maher, Appellee, v. The New York, Chicago and St. Louis Railroad Company, Appellant.
    Gen. No. 37,941.

      Heard in the first division of this court for the first district at the December term, 1934.
    Opinion filed May 6, 1935.
    Rehearing denied and opinion slightly modified May 20, 1935.
    Winston, Strawn & Shaw, of Chicago, for appellant ; Silas H. Strawn, Harold A. Smith and Douglas C. Moir, all of Chicago, of counsel.
    Joseph D. Ryan and Louis P. Miller, both of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

On November 12, 1931, plaintiff, -who was employed by defendant as a switchman, was working with his crew assigned to the Stony Island yard of defendant located at Stony Island avenue and 87th street in the cityv of Chicago.

The railroad tracks in this yard ran in a general southeasterly and northwesterly direction. The multiplicity of tracks, buildings, etc., renders it somewhat difficult, notwithstanding a plat offered in evidence, to get an accurate picture of the circumstances under which the accident to plaintiff occurred which is the basis of this suit. A drawing attached to plaintiff’s brief gives a clearer view of the situation. Viewing the switch yard from the north, it shows well toward the center running from north to south what is called a spur lead track which intersects various switch tracks at angles more or less acute. These tracks are numbered in succession from north to south 1, 2, 3, 4, 5 and 6. To the right, or west, are other tracks, the most westerly being No. 14. Between the spur lead track and No. 14 were the transfer building and numerous cars placed upon the tracks, and at about half distance was a structure described as a covered platform. To the left and east of the spur track lead and intersecting it at a considerable distance north of switch track No. 1 was a track known as hold yard track No. 3.

The switching crew to which plaintiff belonged came on duty at 10:45 p. m., November 11, 1931. It consisted of W. G. Vanderhye, conductor, H. E. Dittman, headman, William C. Bonta, engineer, H. B. Ferry, fireman, and plaintiff, switchman and fieldman.

There were two flood lights, one on each side of the track on 87th street facing south into the yard. These lights were out during this whole evening, and throughout the night there was much heavy, although intermittent, rain. The crew was assigned to the work of breaking up train No. 35 and moving cars from another train, N. 0. 13. These cars stood on hold yard track No. 3. All the cars in the train came from points outside the State of Illinois. Car NKP X. 50600 was billed from Ohio and consigned to the defendant railroad’s storekeeper, Mr. Temple.

Plaintiff, as fieldman at this time, had a list of all the cars which were to be switched, as well as the different tracks upon which the same were to be placed. Plaintiff’s engine was coupled onto 15 to 18 cars on track No. 3 and proceeded to distribute them. Plaintiff threw some of the switches and the conductor others, as was the usual practice.

In the course of his duties plaintiff was required to go to track No. 14 and west of it about 250 feet distant. In doing so it was necessary to walk around “Transfer House” and a number of intervening cars. In his absence the crew did other switching. When he returned to the lead track three cars were attached to the engine, the third in position from it being car NKP X. 50600. The engine was backing down the spur yard lead in a southerly direction, pushing these three cars at a speed estimated by the different witnesses at from five to ten miles per hour. Plaintiff approaching from the west climbed onto the southwest corner of the NKP X., which as the engine backed was the leading car. He stood on the stirrup; he held on with both hands, also holding his lantern in front of him with his right hand; he was on the same side of the car as the fireman, that is, the west side. The engineer and conductor were on the east side where the controlling signals were given by the conductor directing the movements. Dittman, the other brakeman, rode on the southeast corner of the second car from the engine and was also on the east side of the train as it moved. He was there in order to relay the signals of the conductor to the engineer. The purpose of this particular movement was to shove in the cars on switch track 4 so as to clear the spur lead track, in order that, the cars designated for switch track 6 could be set in on it. Plaintiff testified he did not know that the spur lead track was blocked at a point 180 feet north of switch 4, nor that there were any cars on the spur lead. The conductor was in full charge of the movement. Prom his position plaintiff could not see the conductor. When about a car length from the cars opposite switch No. 2 the conductor discovered the cars that had been left there; he gave a slow-down signal and jumped off the train. Plaintiff could not see the signal and when the train collided with two cars standing on the track he was thrown off, the car on which he was riding ran over him and he received injuries which made necessary the amputation of his arm near the shoulder.

Plaintiff brought suit under the Employers’ Liability Act, the declaration averring that defendant negligently backed these three cars into the others, negligently allowed the cars to be upon the lead track and negligently failed to furnish plaintiff a safe place in which to do his work; that the conductor negligently gave the order to back up the cars on the spur lead track and failed to ascertain the place on the spur lead track where other cars came to a standstill. The cause was submitted to a jury which returned a verdict in favor of plaintiff in the sum of $24,600, upon which the court, overruling motions for a new trial and in arrest, entered judgment.

Defendant contends that all the risks of the movement of the cars by which plaintiff was injured were open and obvious and were therefore assumed by plaintiff. A large number of cases are cited, which we think it quite unnecessary to review. In Roberts Federal Liabilities of Carriers, 2nd ed., vol. 2, ch. 39, sec. 831, p. 1606, the author states the doctrine of assumed risk as follows:

‘ ‘ The nature and elements of the doctrine of assumption of risk, as applied to interstate employees of interstate carriers under the federal act, have been well established in a series of controlling decisions by the United States Supreme Court. The risks are of two kinds, ordinary and extraordinary. Ordinary risks are those that are normally incident to the occupation in which an employee voluntarily engages. An employee is conclusively presumed to have knowledge of such risks and assumes injuries arising therefrom. Such ordinary risks are assumed by an employee whether he is actually aware of them or not; for the dangers- and risks that are normally or necessarily incident to his occupation are presumably taken into account in fixing the rate of wages. But risks of another sort, not naturally incident to the occupation, may arise out of the failure of the carrier to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These are known as extraordinary risks. An employee has the right to assume that his employer has exercised due care for his safety. He is not to be treated as assuming these extraordinary risks arising from defects due to the negligence of the employer unless he has knowledge of them and of the danger arising therefrom, or unless the risk and danger are so obvious that an ordinarily prudent person under similar circumstances would have known the risk and appreciated the danger arising therefrom.”

We hold that the risk to which plaintiff was subjected by this particular movement was not a hazard which was usual or customary for defendant’s employees to take. There was evidence tending to show (and the jury apparently believed) that plaintiff rode into this unusual and extraordinary danger without knowledge and therefore without appreciation of the hazards to which he was subjected. The situation which resulted in his injury was unusual, unexpected, extraordinary and contrary to experience. Under the decisions of federal courts (which are controlling) assumed risk is an affirmative defense, and the burden of proving it is on defendant. Seaboard Air Line Ry. v. Moore, 228 U. S. 433; Central Vennont Ry. Co. v. White, 238 U. S. 507; Kanawha & Michigan Ry. Co. v. Kerse, 239 U. S. 576; Waiswila v. Illinois Cent. R. Co., 220 Ill. App. 113; Wetterer v. Atchison, T. & S. F. Ry. Co., 277 Ill. App. 275; Fisher v. Chicago, R. I. S. P. Ry. Co., 290 Ill. 49; Kiefer v. Elgin, J. & E. Ry. Co., 351 Ill. 634. It is also important in this class of cases to bear in mind the fundamental distinction between assumed risk and contributory negligence. Schlemmer v. Buffalo, R. & P. Ry. Co., 205 U. S. 1. We have no hesitancy in holding that the question of assumed risk was for the jury.

Defendant complains that in some of the instructions given at plaintiff’s request the words “interstate commerce” were used instead of “interstate transportation.” To this point defendant cites Chicago & N. W. Ry. Co. v. Bolle, 284 U. S. 74; Chicago & E. I. R. Co. v. Industrial Commission, 284 U. S. 296; New York, N. H. & H. R. Co. v. Bezue, 284 U. S. 415. As plaintiff points out, in none of the cited cases was the plaintiff actually engaged in transportation. In the instant case the uncontradicted evidence shows that plaintiff was in fact engaged in interstate transportation. The instruction seems to have followed the language of the statute, and the giving of it, even if technically erroneous, was not reversible error.

Defendant further complains that the court erred when, after restricting each of the parties to 15 suggestions for instructions to the jury, it was ruled that the peremptory instructions which defendant requested as to each count of the declaration were to be counted. The ruling was, we think, subject to criticism, but in view of the fact that the jury seems to have been fully and accurately instructed as to the law applicable, we Avill not reverse for this reason.

Defendant argues reversible error by reason of a ruling of the court that it might not peremptorily excuse two jurors of the second panel, Mr. O’Brien and Mr. Vanderbok. The jurors were examined in panels of four. In examination of the first panel the question arose as to whether when the plaintiff tendered the panel to defendant, such act amounted to an acceptance of them, Mr. Ryan for plaintiff contending that he could tender without accepting, which he did. Mr. Smith for defendant then examined the four and tendered them back to Mr. Ryan. Mr. Ryan then accepted the four and the court directed them to be sworn when Mr. Smith objected, stating he had not yet accepted the four and that he wished to excuse one of them. Thereupon, without objection the challenge was permitted.

The second panel of four were sworn to answer questions; Mr. Ryan after examination of them stated: “I will tender the four gentlemen.” Mr. Smith for defendant then examined the four and inquired if they were “acceptable to you, Mr. Ryan.” Mr. Ryan replied, “I tender these four gentlemen to you for acceptance. ’ ’ The court inquired of Mr. Smith as to his views, to which he replied that he did not understand the law to be that it was for defendant to accept first and that it was up to plaintiff to do so. Mr. Ryan said that was not the rule and that he would state what it was, when the court interposed: “He has tendered them to you. How what? Do you tender them?” Mr. Smith replied, “When he has accepted them.” Mr. Ryan said, “They are accepted.” The court then directed that the second four should arise and be sworn, whereupon Mr. Smith objected.

There was an extended colloquy in which Mr. Ryan indicated his opinion that after he had accepted the four, defendant might interpose a challenge. The court inquired the why “of all this foolishness” and asked Mr. Smith whom he wished to challenge. Mr. Smith said that he wished Mr. Ryan to challenge first. The court then directed the second four jurors to be sworn, but both Mr. Ryan and Mr. Smith protested that they had not accepted the panel. The court stated that when the jurors were tendered they were accepted. Mr. Ryan insisted otherwise and called the attention of the court to the case of People v. Gray, 251 Ill. 431, and the reported case was apparently handed to the court for examination. While the court was examining it Mr. Ryan interrupted to ask if in the meantime he might question Mr. Cooper, one of the jurors, and he was allowed to do so. After quite an extended examination Mr. Ryan said that the jurors were acceptable to him. Mr. Smith then said that he would excuse juror Doyle, but the court ruled that he was too late and defendant took an exception. The court then directed the four of the second panel to arise and be sworn, which was done, defendant again taking an exception. Later Mr. Ryan after examining the third panel of the veniremen said that he would tender the four, and Mr. Smith again inquired if they were acceptable to Mr. Ryan; Mr. Ryan replied that he was tendering the next four. Mr. Smith again asked if they were accepted by Mr. Ryan. The court said, “Yes, that means that they are accepted by Mr. Ryan” unless Mr. Smith should challenge them, and Mr. Smith said that was all right.

Before proceeding further with the examination Mr. Smith suggested to the court that he wished to make a motion out of the presence of the jury. The parties retired to the judge’s chambers where attorney for defendant made a motion that a juror be withdrawn and the case continued for the reason that the incident which occurred during the examination of the second panel was, as counsel described it, “unfortunately unfair to me.” Counsel stated that he had attempted to excuse Mr. Doyle and even mentioned his name when the court ruled that it came too late. He also stated that he then desired and still wished to excuse Mr. Vanderbok. The motion, however, was denied.

Plaintiff says that the real point in issue is, When is a panel accepted? He further says that the word “tender” as used in the instant case and in the reported decisions is a word unknown to the statute; that the question is whether “tendering” is synonymous with “accepting,” and that so far as research has developed the precise point has never been squarely decided. He insists, however, that a number of decisions clearly indicate that when a party tenders a panel he accepts it. Section 21 of chapter 78, Cahill’s Ill. Rev. Stats. 1933, directs the manner in which juries shall be impaneled, and the section is applicable in both civil and criminal cases. That section provides: “ . . . The jury shall be passed upon and accepted in panels of four by the parties, commencing with the plaintiff. ’ ’

In People v. Nylin, 139 Ill. App. 500, the State tendered a panel of four to defendant, who excused one of them. Another venireman was called, and defendant insisted that the State should examine him before defendant was required to do so. Defendant had exhausted his peremptory challenges, and the excused juror had been successfully challenged for cause by defendant. The Appellate Court said that defendant having challenged a juror and the challenge having* been allowed, the practice in this State was for the party who broke the panel by challenging jurors to fill the places of those excused by him and tender a full panel back to the opposite party; that each party when a full panel had been tendered him must tender the other party a full panel of four, and that the court did not err in its ruling. The judgment was affirmed in 236 Ill. 19.

In Mayers v. Smith, 121 Ill. 442 (while passing upon the third panel and before it was accepted by them and before any of the jurors were sworn and while the defendants had two unused peremptory challenges) defendants offered to challenge peremptorily two jurors, who were in the panels previously accepted but who had not been sworn. The court refused to permit the challenges, and upon appeal defendants contended that the statutory rights of challenging* any juror peremptorily might be exercised at any time before the juror was sworn, although he was previously passed upon and accepted by both parties. The Supreme Court said that under our statute the right of peremptory challenge was cut off with respect to any one of a panel of four jurors which had been passed upon and accepted by both parties, citing Sterling Bridge Co. v. Pearl, 80 Ill. 251; and Belt v. People, 97 Ill. 461.

In Collison v. Illinois Cent. R. Co., 239 Ill. 532, the defendant complained that in impaneling the jury it was compelled to examine and pass upon the second panel of four jurors before the same were examined and accepted by the plaintiff. The court said:

“When one panel of four is complete the plaintiff is to pass upon and accept the next panel of four and tender the same to defendant, and so on. The plaintiff is not called upon to tender a second panel of four to the defendant before the defendant has tendered back the first panel of four (Spies v. People, 122 Ill. 1) but when four are taken by both sides the plaintiff must go ahead with the next panel. The ruling was wrong, but the rights of the defendant do not appear to have been prejudiced in any way by it and therefore it is not ground for a reversal.”

In People v. Gray, 251 Ill. 431, it appeared that counsel for the State examined a panel of four jurors and tendered them to counsel for defendant who excused two and thereafter filled the panel and tendered the four to opposing counsel. The State then challenged peremptorily one of the two jurors who had been originally tendered to defendant, and the challenge was allowed over objection. The court distin7 guished Mayers v. Smith, 121 Ill. 442, and held that the trial court did not err and that “until both sides accept the panel of four, without question the statute permits either side to challenge peremptorily a juror theretofore tendered to the other side.”

In People v. Munday, 280 Ill. 32, it appeared that on two occasions the State tendered to the defendant four jurors, and that upon examination by defendant’s counsel a juror in each instance was excused for cause, and the court thereupon required the defendant to fill the panel. It was contended in the Supreme Court that the State was bound to tender to the defense in panels of four, competent and qualified jurors, and that if, after tender it was disclosed that any member of the panel was disqualified for cause the examination then shifted to the State to fill the panel. The Supreme Court, however, said that the trial court did not err in this respect, cited sections 21 and 23 of the statute concerning jurors and said that it was incuim bent on the State to secure a panel of four that was acceptable to it, and that it might tender them to the defense; that the examination on the part of the State might disclose that one of the jurors in the panel was disqualified for cause, but that the State had the right, if it saw fit, to waive its. privilege to challenge for cause and to accept the jurors.

In People v. Curran, 286 Ill. 302, it appeared that four jurors were accepted by both sides and sworn; that nine days afterward, during the examination of the second four, one of the jurors named Brown was excused for physical incapacity. There were a number of defendants, each of whom then attempted to interpose a peremptory challenge to another juror of the first four, named Shaw. The challenge was overruled, and it was urged that the court erred in denying the peremptory challenge of Shaw because of the provision of the statute that the jury should be passed upon and accepted in panels of four. The Supreme Court pointed out that at common law each juror was sworn as he was chosen and that there was no right to peremptorily challenge after the juror was sworn, and said that until both sides accepted a panel of four the statute permitted either side to challenge peremptorily a juror tendered to the other side. The court, after reviewing cases, further said that no case had been found deciding that after a juror was accepted and sworn- and became one of the jury to try the issue he could be challenged peremptorily as a matter of right, and that the court did not err in denying the peremptory challenge.

We have reviewed all the cases cited. It is true, as plaintiff suggests, that none of them decides the precise question arising here. Under the statute the examination of the jurors must be begun by the plaintiff, and when four jurors are found satisfactory to the plaintiff, he should announce his acceptance of them and tender the panel thus accepted to his adversary for examination. It is believed that this has been the usual practice in well-tried cases, and if it had been followed in this case this unfortunate misunderstanding would not have occurred. The practice of plaintiff in first tendering a panel to defendant without accepting it, and of defendant in then tendering that panel back without accepting and awaiting the decision of plaintiff as to whether he will accept a panel which he has already tendered, would be intolerable; yet that seems to have been the practice indulged in in the selection of the first panel. Counsel for defendant was therefore excusable in thinking that since plaintiff had only tendered the panel he could tender the panel back for acceptance by plaintiff, without waiving his right to a peremptory challenge. The judge was right, in our opinion, when he expressed the view that the tender of a panel implied on the part of the one making the tender an acceptance of it. Nevertheless, we think the ruling • against defendant was erroneous. The former acceptance of the panel was practically set aside when the attorney for plaintiff by permission proceeded to re-examine one of the jurors. The reexamination was satisfactory to plaintiff. Defendant (Ms peremptory challenges were not exhausted) had a right to say after this further examination whether the panel was then satisfactory to Mm. Moreover, in the selection of the first panel the court allowed challenges after the panel was tendered. The rule should not have been changed without warning. The effect was to mislead defendant. It was thereby deprived of the exercise of a substantial right, and the error was reversible.

There is merit also to the further contention of defendant that the conduct of the attorney for plaintiff in the course of the trial was subject to criticism. Dig-gin, who was a member of the switching crew, was called as a witness by defendant and testified to a conversation with John Davis, to whom the witness had made a statement on February 21, 1932. He was asked by Mr. Ryan on cross-examination as to whether he told Davis certain facts, and he replied he had. The witness was then asked whether that was the fact, to which he replied: “It is. He wanted that statement, he said, so Maher could get his insurance from the B. R. T.” The attorney for plaintiff then said: “I • move to strike out the answer, if the Court please, and I submit this is viciously, prejudicially injected into this case, and it certainly was not inspired by this witness himself.”

“Mr. Smith: I take exception to that slanderous remark.
“Mr. Ryan: Well, you take all the exceptions you want.
“Mr. Smith: If the Court please, I want to make a motion out of the presence of the jury right now.
“Mr. Ryan: Tour Honor, his conclusion could not have any possible relevancy.
“The Court: I know, hut your statement that it was inspired by somebody other than the witness himself is not sustained by what was said in the case. Objection sustained.
“Mr. Ryan: Then I move to strike it out as not responsive to the question.
“The Court: The last part of his answer is not responsive.”

Upon redirect examination of yardmaster Wilson, the record shows:

“Q. Was it his duty to clear that fouled lead?
“Mr. Ryan: I object, if the Court please.
1 ‘ The Court: Sustained.
“Mr. Smith: Exception. '
“Mr. Ryan: It is not his duty at all, and you know it.
“Mr. Smith: I object to that statement.
“Mr. Ryan: I object to this yardmaster telling the jury whose duty it was to do anything.”

In the course of Mr. Ryan’s argument to the jury the record shows the following:

“Mr. Ryan: They have got a receipt where way back in 1925, some nine years, that he signed for one. Where is the receipt for his rule book? He told you he got a rule book.
“Mr. Smith: Here it is. Do you want it?
“Mr. Ryan: I object to this, your Honor.
“Mr. Smith: Oh, you don’t want the exhibits.
“Mr. Ryan: These are more of these underhanded tactics.
“Mr. Smith: I take exception to that statement.
“Mr. Ryan: I object.to counsel’s remark..
“The Court: All right, take your objection. Gfo ahead, counsel, with the argument.”

Again, in the examination of plaintiff, the following took place:

“Mr. Ryan: Well, your Honor, — Mr. Smith, don’t I understand, or am I in error about it, that you have agreed that train 35 was on this track at this time, and there were ten cars on the track—
“Mr. Smith: I don’t agree to that.
“Mr. Ryan: Well, then you are going back on your agreement.
“Mr. Smith: I am not going back on anything.
“The Court: Well, now, gentlemen, go on with this case and do not argue with each other.
“Mr."Ryan: All right. I will start issuing subpoenas here for the records.
“Mr. Smith: You can have anything we have got by mere request.”

On the cross-examination of the witness Bonta, Mr. Ryan said: “Well, had you heard all of my question before answering, or did you say ‘no’ anyway, just on general principles?” Mr. Smith then said: “Well, now, just a moment. I object to that.” The court sustained the objection.

We have not recited all of the matters of which defendant complains, but in those we have recited we think plaintiff’s counsel is subject to criticism. His insinuation that the opposing counsel had viciously inspired a witness to give an unresponsive answer, his observation at another time in the presence of the jury that opposing counsel was guilty of underhanded tactics, his suggestion that counsel was unfairly going back on an agreement he had made with him and that it would be necessary to start issuing subpoenas in order to obtain the records of the defendant company, and his intimation to the jury that the witness whom he cross-examined was ready at any time to say “No” without understanding the nature of the question put to him, all were unfair reflections upon defendant, upon counsel for defendant and upon the witness in the case, which cannot be justified.

Counsel for defendant was " not blameless. In the course of the trial he persisted in getting to the jury the wholly immaterial but prejudicial fact that plaintiff after the accident collected insurance on an accident policy on account of injuries received. His reference in the presence of the jury to exhibits not in evidence also deserves criticism. The case was bitterly contested. This extenuates but does not condone. The well-known ability and experience of both attorneys make it impossible to justify these departures from proper practice. It is unnecessary to review cases cited.

For the error pointed out the judgment will be reversed and the cause remanded for another trial.

Reversed cmd remanded.

0’Connob, P. J., and McStxrehy, J., concur.


text:
    Oscar Haugan, etc. v. John Michalopoulos et al. Steve Kachantones, Appellee, v. John Michalopoulos et al., Defendants. John Michalopoulos, Appellant.
    Gen. No. 38,034.

      Heard in the first division of this court for the first district at the February term, 1935.
    Opinion filed May 6, 1935.
    James Percival Pio, of Chicago, for appellant.
    Foreman, Bluford, Krinsley & Schulte and A. Edmund Peterson, all of Chicago, for Chicago Title & Trust Co.; Milton J. Foreman, Victor Hedberg and David C. Kenyon, all of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Haugan, trustee named in a deed executed March 17, 1926, by John Michalopoulos, conveying real estate in Cook county to secure bonds of the principal amount of $300,000, filed his bill to foreclose said trust deed on November 23, 1932, alleging defaults in the payment of principal, interest, taxes and assessments. On November 8, 1933, the court after hearing motion for the appointment of a receiver, found the premises to be scant security for the indebtedness, and in lieu of such appointment directed that Michalopoulos be permitted to remain in possession upon executing a bond that he would faithfully account for rents, issues and profits. Individual holders of the bonds were not made party defendants to the proceedings, further than they were represented by Haugan as trustee in the filing of the bill.

July 13, 1934, Steve Kachantones filed a petition in the cause in which he averred that he was the owner of $173,000 worth of bonds; that Haugan as trustee had resigned as under the provisions of the trust deed he might do; that the State Bank of Chicago, a successor in trust, had theretofore been consolidated with the Foreman Trust & Savings Bank; that Charles H. Albers had been appointed receiver of the consolidated bank which was in the process of liquidation; that Albers, in behalf of the bank, had also resigned as successor trustee. His petition prayed that summons and process issue against the “unknown owners” of the bonds; that they be given opportunity to be heard, and that upon hearing a successor trustee should be appointed as provided by the terms of the trust deed. The petition was verified. The petitioner also filed an affidavit of nonresidence to the effect that the unknown owners on due inquiry could not be found, so that process could not be served upon them or either or any of them, and that upon due and diligent inquiry their present place of residence could not be ascertained and that their last place of residence was unknown.

Albers, in a petition for leave to appear, set up that he was the owner of $8,000 principal amount of the bonds. By order he was allowed to appear and his petition to stand as an answer.

Marie Eisner, holder, as she averred, of $2,500 of bonds, appeared and by leave filed an answer. The Meyercord Co. by leave appeared and filed an answer averring that it was the owner of bonds to the amount of $25,000.

November 22, 1934, defendant Miehalopoulos filed a general and special demurrer. The cause was set down for hearing, upon which the court on motion of solicitors for petitioners Marie Eisner and the Meyercord Co., ordered that the Chicago Title & Trust Co. be appointed successor trustee and vested with all the rights, powers and duties provided in the trust deed sought to be foreclosed, and that the Chicago Title & Trust Co. be substituted as complainant to succeed to the rights, powers and duties of Haugan. December 19, 1934, the cause again came on for hearing on the demurrer of Miehalopoulos, and the court entered an order that the appointment of a successor trustee should be adjudged and was considered by the court as an overruling of the demurrer. The order was entered on that date nunc pro tunc as of November 22, 1934, and from these orders this appeal has been perfected by defendant Miehalopoulos.

The record fails to disclose that as a matter of fact any summons issued against the unknown owners who were made parties defendant to the petition, and defendant contends that under section 7 of the Chancery Act, Cahill’s St. ch. 22, jf 7 (Smith-Hurd’s Ill. Rev. Stats., 1933, ch. 22, sec. 7, p. 251) the court could not acquire jurisdiction over the unknown owners unless such summons issued. Defendant quotes from Puterbaugh’s Chancery Pleading & Practice, vol. 1, ch. 5, sec. 85, p, 139, as follows:

“In order to acquire jurisdiction over ‘Unknown Owners’ or ‘Unknown heirs or devisees,’ under section 7, it is absolutely essential that they be made defendants by proper designation in the bill, and that the summons, affidavits and publication notice conform to the allegations of such bill, consequently the allegations of the bill, the affidavits and publication notice should be carefully prepared so as to exactly comply with the statute.” Defendant contends that this provision for the issue of summons is jurisdictional, and that if the present order of the court stands without compliance therewith, no title would ever be had of any sale conducted by the new trustee, because any bondholder who could bring himself within the class of unknown owners could at any time come in and move to set aside the order appointing a trustee upon the ground that no summons had ever been issued against him. Defendant says that such owner would be entitled to have the proceedings vacated. Puterbaugh makes the statement above quoted without the citation of authority, and petitioner contends that the case of Alexander Lumber Co. v. Kellerman, 358 Ill. 207, is to the contrary. In that case it appeared that the summons for unknown owners was issued prior to the filing of the affidavit, and it was contended that service thereafter had by publication was void for that reason. The opinion of the Supreme Court said that Werner v. Thornton, 98 Ill. 156, was relied upon to support the contention but did not sustain it, and further:

“It does not hold that it is necessary to issue a summons against unknown parties, nor does sectioü 7 of the Chancery Act make any such requirement. After providing for the filing of an affidavit as to unknown parties, section 7 provides: ‘And process shall be issued against all such parties by the name and description given as aforesaid; and notices given by publication, as is required in this act.’ Any means of acquiring jurisdiction is properly denominated process. (21 R. C. L. 1262.) Jurisdiction of a party may be acquired by personal service of summons or by constructive service. Constructive or substituted service may be made by filing the necessary affidavits and publication as to unknown parties. Such constructive service constitutes process as much as the service of a summons. We cannot conceive how an officer can personally serve a summons upon unknown parties, and the fact that one was issued against unknown owners before the affidavit was filed is immaterial.” Irrespective of this authority, however, we hold that defendant Miehalopoulos is not in a position to raise this question. He is not an unknown owner; he does not appear as of that class. His appearance is in the case. There has been no attempt made to serve him by publication. He is named defendant as the maker of the trust deed and the party who executed the bonds. He is not in a position to object that process has not been served upon codefendants who belong to a different class. Fergus v. Tinkham, 38 Ill. 407; Bonham v. Joyce, 257 Ill. 112; St. George v. Bender, 342 Ill. 296.

In Dodd and Edmunds’ Appellate Jurisdiction & Practice, in the Courts of Illinois, sec. 963, p. 708, the authors state the rule as follows:

“Errors may be assigned only by a party against whom they are committed of who is affected thereby. Thus a party who was not served and who is not named in the decree cannot assign errors.” On page 712, section 969, the same authors state:

“As a further corollary to the principle that parties can assign errors or cross-errors only upon questions which affect them directly, it follows that alleged error affecting only parties who have not joined in review cannot be taken advantage of by those who are in the reviewing court. Errors on behalf of or relating to such absent parties cannot be assigned unless they affect those who are parties to the review. And matters as to such absent parties are obviously concluded. ’ ’ The Illinois cases which sustain this rule are too numerous to be either cited or reviewed.

There is a further reason why this contention cannot be sustained, and that is that it was not raised in any way in the trial court. Michalopoulos did not at any time complain to that court that summons did not issue against his codefendants, the unknown owners. He complains of that omission for the first time in this court. This court exists for the purpose of reviewing rulings of the trial court and not for the purpose of passing upon questions not raised there. In Dodd and Edmunds’ Appellate Jurisdiction & Practice in the Courts of Illinois, sec. 77Í, p. 518, the rule applicable is stated:

“The general rule is that courts of review will not consider questions which have not first been raised in the court below. The Appellate Court reviews the judgment of the trial court upon the record alone. The Supreme Court reviews the judgment of the Appellate Court in the same way. If the case is one which goes direct from the trial court to the Supreme Court the trial court record is the only bhsis for consideration. The question in each case is whether the court whose judgment is under review committed reversible error, and, generally speaking, the only complaint that can be made is one resting upon such rulings of the court below as were properly objected to.” The same authors in section 776, page 521, point out that this general rule is applicable to such situations and questions as defects in process and service. The first contention of defendant therefore cannot be sustained.

In the second place, defendant argues that the appointment of a new trustee was unnecessary because nothing remained except to enter a decree of foreclosure, and defendant cites to this point Lill v. Neafie, 31 Ill. 101; Waughop v. Bartlett, 165 Ill. 124, and Morse v. Holland Trust Co., 184 Ill. 255. The circumstances in each of the cases cited differ widely from those which appear here. The trust deed in this case vests exclusive right of action in the trustee. It appears that the bonds issued were sold to the general public and are to a great extent held by unknown parties. The trust deed gives to the trustee upon default the right to enter and take possession of the mortgaged property and to manage and operate it. It provides that the proceeds of any sale shall be paid to the trustee and distributed by him. It also contains the provision that upon sale, unless someone else bids the full amount of the indebtedness, the trustee may bid and purchase the mortgaged property either for the full amount of the indebtedness or for any less amount and demand, receive and hold in his own name, as trustee, the certificate issued pursuant to the decretal order or judgment directing the sale, and thereafter in the event of no redemption, he may take title to the property for the equal pro rata benefit of the holders of the bonds and coupons.

We have recently held that the duties of the trustee under such trust deed and under such circumstances are active in their nature and that under such circumstances the trust becomes active. Straus v. Chicago Title & Trust Co., 273 Ill. App. 63; Chicago Title & Trust Co. v. Bamburg, 278 Ill. App. 1; Chicago Title & Trust Co. v. Robin, 278 Ill. App. 20; Grant v. West End Pine Bldg. Corp., 279 Ill. App. 190. We hold the court did not err in appointing a successor trustee.

Defendant in the third place urges the point that the insolvency of the trustee does not ipso facto remove him as trustee, and that a resignation in accordance with the trust deed is necessary. To this point defendant cites Dillon v. Elmore, 276 Ill. App. 548. The point refers to the qualifications of the Foreman-State Trust & Savings Bank but disregards the controlling fact made to appear by the record that its resignation was tendered.

The appeal is without merit. Haugan, as the original trustee, who filed the bill, represented all the bondholders and continued to represent them until the order of court was entered appointing his successor. It was therefore unnecessary, we think, to make unknown owners parties or to summon them at all. The facts disclosed indicate that the appointment of a trustee was necessary if the interests of the holders of the bonds were to be safeguarded. The original trustee, as well as the successor in trust, having both resigned, the order appealed from was properly entered, and it is affirmed.

Affirmed.

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


text:
    City National Bank and Trust Company of Chicago, Appellee, v. Davis Hotel Corporation et al., Defendants. Abel Davis et al., Appellants.
    Gen. No. 38,111.

      Heard in the first division of this court for the first district at the February term, 1935.
    Opinion filed May 6, 1935.
    Depress, Buckingham, Jones & Hoppman, of Chicago, for appellants; Don Kenneth Jones and Thomas R. Mulroy, of Chicago, of counsel.
    Samuel A. & Leonard B. Ettelson, of Chicago, for appellees. Samuel A. Ettelson, as friend of Hon. Harry A. Lewis, as judge of Superior Court of Cook County; Samuel A. Ettelson, Edward C. Higgins and Carl J. Appell, all of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

December 20, 1929, the predecessor trustee of the City National Bank & Trust Co. of Chicago filed its bill in chancery in the superior court of Cook county to foreclose a trust deed made and delivered by the Davis Hotel Corporation June 15, 1926, to secure an indebtedness of $2,500,000 represented by bonds of the same date. The bill was in the usual form and prayed for the relief usually asked in such cases and also for general relief. December 23rd thereafter a receiver was appointed.

January 24, 1935, the court, upon consideration of the report of the receiver filed January 4, 1935, entered an order removing' the receiver and appointing Oscar Weiner successor. Afterward on the same day the court entered an order reciting in substance that the cause came on further to be heard on the order of substitution of trustee (complainant) theretofore made; that it appeared to the court from the records, proceedings and petitions on file that a sale was held by the master in chancery under the decree of the court; that the sale had not yet been confirmed and that objections by certain bondholders to such confirmation were pending. The order then recited:

“. . . it is necessary to protect the jurisdiction of this court so that it may finally dispose of the matters now pending before it in connection with the administration of the trust estate and with the reorganization plan pending herein;
And the court having taken judicial notice of the prevailing practice now for litigants to attempt to remove the subject matter from the State court to other jurisdictions because of fear of an adverse decision, as was heretofore done in many other instances, and in order to protect the jurisdiction of this court, and to uphold its dignity so that it may dispose of the matters now. pending before it to a final determination;
“It Is Therefore Ordered, Adjudged and Decreed by the court, of its own motion, that all parties, their agents, solicitors and attorneys, be and are hereby restrained and enjoined from taking any action, directly or indirectly, tending to interfere with the jurisdiction of this court of the subject matter until such time as this court will have passed upon the matters now pending before it and all parties, their agents, solicitors and attorneys, be and are hereby further restrained from using any of the bonds deposited under any depositary agreement for the purpose of soliciting the bondholders in connection with any reorganization scheme, and to take any action thereon until the further order of this court.”

It will be noticed that the order is unusual in that it does not purport to be entered uppn the motion or application' of any party to the litigation. There was, so far as the record shows, no motion, no affidavit, no prayer, no facts presented by any party to the suit justifying such an order. It was entered solely upon the initiative of the trial judge. The proceeding is also unusual in this court in that an appearance has been entered and a brief filed by a solicitor who described himself as “friend of Honorable Harry A. Lewis, as Judge of the Superior Court of Cook County.” In the same brief appear the names of four other persons who are described as “appellees,” and whose interest in the subject matter of the litigation is disclosed to be that of bondholders.

The brief sets up Rule 21 of this court and contends that by reason of it we may not consider this appeal on the merits. The rule provides:

“Where an interlocutory order or decree is entered on an ex parte application, the party proposing to take an appeal 'therefrom shall first present, on notice, a motion to vacate the order or decree to the trial court entering such order or decree.” No such motion was made, and it is urged that it was necessary such motion should have been first made and overruled “in order to create a proper basis for an interlocutory appeal to this court.” The contention cannot be sustained. The rule in question is by express terms limited not only to interlocutory orders or decrees but to such orders or decrees as are entered on “an ex parte application.” Here the order expressly says that it is upon the court’s own motion, based upon matters within the court’s own knowledge. It therefore affirmatively appears from this statement of the brief that the order was not entered upon an ex parte hearing. The chancellor is not a party to the proceeding. The function he is supposed to perform is inconsistent with the idea that he should have any interest whatsoever in the subject matter of the litigation. He cannot try a case in his own court. We cannot understand upon what theory it may be supposed that upon an appeal taken from an order entered by him he can properly become a party thereto and entitled to appear by “friend” or otherwise. In State v. Dickman, 175 Mo. App. 543, 157 S. W. 1012, the court said:

“A judicial proceeding, order, injunction, etc., is said to be ex parte when it is taken or granted at the instance and for the benefit of one party only, and without notice to, or contestation by, any person adversely interested.” We think this statement defines accurately the phrase ex parte as used in Rule 21 of this court. Within that definition an order entered by the court on its own motion and based upon its own personal knowledge cannot be said to be ex parte. The purpose of the rule was to prevent appeals from orders entered under circumstances indicating only partial and one-sided consideration. That reason does not apply where a court of its own motion deliberately enters the order.

By consent of those filing hriefs a supplemental record has been filed in this court which discloses that the action the court feared was about to be taken was that the debtor might file a petition in the United States District Court for reorganization under section 77B of the Bankruptcy Act. Under the decisions of the court and other state and federal courts, the superior court of Cook county was without jurisdiction to enter such order, and it is void. DeKalb Trust & Savings Bank v. DePaul Educational Aid Society, 278 Ill. App. 102; Morgan v. State, 154 Ark. 273; In re Henn, 114 N. J. Eq. 452; In re Kepecs, 123 N. Y. S. 872; In re Sterba, 74 F. (2d) 413.

One other matter which appears from the pleadings filed in this case deserves attention. In many cases filed in this court hitherto we have condemned in unmeasured terms the pollution of our language through the use of such combinations of words as “and/or” and “was/were.” The use of these has been condemned by this court in Preble v. Architectural Iron Workers’ Union, 260 Ill. App. 435; Carlin v. Millers Motor Corp., 265 Ill. App. 353; Tarjan v. National Surety Co., 268 Ill. App. 232; Thibodeaux v. Uptown Motors Corp., 270 Ill. App. 191; Wise v. Metropolitan Life Ins. Co., 277 Ill. App. 343; by the courts of Alabama in Clay County Abstract Co. v. McKay, 226 Ala. 394; by the courts of Louisiana in State v. Dudley, 159 La. 872; by the courts of Utah in Putnam v. Industrial Commission, 80 Utah 187; by the courts of Nevada in Ex parte Iratacable, 30 P. (2d) 284; by the Federal Court in Irving Trust Co. v. Rose, 67 F. (2d) 89. The practice has also been condemned by leaders of the bar. See American Bar Association Journal, editions of July, August, September and October, 1932. ' The Senate of the United States, we are glad to note, has expurgated such language from pending legislation.

. We hoped it would not be necessary to again refer to the use of such symbols by the legal profession in this district. In the order appointing the Chicago Title and Trust Co., a corporation, receiver we find in tiresome and vain repetitions these further abominations: “it/he,” “itsAis,” “it/him,” all worthy of barbarian genesis. In view of the fact the receiver was a corporation the use of “he,” “his,” and “him” indicates a confusion of thought not to be tolerated. And/or, was/were, is/are, it/he, its/his, it/him — so do bad habits grow. It is only fair to say that none of the attorneys of record in this court is responsible for the use of these symbols.

For the reasons indicated the order of the superior court is reversed.

Order reversed.

O’Cohhor, P. J., and McSurely, J., concur.


author: Mr. Justice Murphy

text:
    Edna Darmody, Appellee, v. Kroger Grocery and Baking Company, Appellant, and F. G. Olbrich, Defendant.

      Heard in this court at the October term, 1934.
    Opinion filed March 4, 1935.
    Rehearing denied May 29, 1935.
    W. J. MacDonald, of East St. Louis, for appellant.
    E. B. Hendricks and Beasley & Zulley, all of East St. Louis, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

Appellee, herein referred to as plaintiff, seeks to recover damages for personal injuries alleged to have been sustained when she stepped into a broken tile drain which extended across a cinder walk near the intersection of Forth Forty-sixth street and Casey-ville avenue in Canteen township in St. Clair county. The suit was instituted against appellant and F. G-. Olbrich. Appellant is herein referred to as defendant.

At the time of the accident, Olbrich was the owner of a building located on the southeast corner of the intersection of said streets. Appellant was occupying it as a tenant under a written lease arid operating a store therein. Parallel with the building was a cement sidewalk four or five feet in width. At the south end of the building where the cement walk terminated, there was a cinder walk which extended farther south. The tile drain in question extended through the cinder portion of the walk near the south end of the cement walk. It had been placed there by Olbrich two or three years before the accident and was connected with a downspout at the south end of the building. It was used for carrying roof waters from’ the downspout away from the building and across the walk.

Suit was started and a declaration filed prior to January 1,1934, but, subsequent to that date, plaintiff filed a complaint under the Civil Practice Act. The accident is alleged to have occurred on the 23rd day of May, 1933. The negligence charged in the various paragraphs of the complaint is as follows: in the second, that the defendants kept, maintained and permitted to remain, a certain tile drain about seven inches in diameter across the sidewalk, thereby creating an obstruction in violation of paragraph 564, chapter 38 and paragraph 158, chapter 121, Cahill’s Illinois Statutes; in the third paragraph, that the defendants kept, maintained and permitted to remain a certain tile drainpipe across the sidewalk in such a manner as to render it dangerous for pedestrians; by the fourth, it was alleged that defendants kept, maintained and permitted the drainpipe to remain across the sidewalk and that the defendant, Kroger Grocery Company, in driving its trucks across the sidewalk, caused the tile drain to break from the top, creating a hole six or seven inches deep, which condition the defendants afterwards carelessly, negligently, and improperly permitted to remain for a long space of time; that Olbrich had due knowledge thereof or with the exercise of care should have known it; that the allegation of the fifth paragraph is that the defendant permitted rain water from the roof to be discharged in the center portion of the cinder walk, thereby creating a hole or depression; and the sixth, that the defendant wantonly kept, maintained and permitted a dangerous condition to exist in the sidewalk.

Defendant filed an answer denying* each charge of negligence and as a further defense alleged that it did not have control over the sidewalk or the tile drain, that there was no duty upon it to keep the sidewalk or drain in repair, that it was in possession of the premises in question by virtue of a written lease with Olbrich and that by the terms of the lease Olbrich had covenanted to fepair the roof, supply pipes for gas and water (leading to the building) and the drainage pipes leading therefrom.

Olbrich filed a separate answer denying all negligence with which he was charged in the complaint and later filed a counterclaim against the defendant company seeking to recover for the damage done to the sidewalk by the defendant’s trucks driving* thereon. Upon plaintiff’s claim, the jury returned a verdict for the plaintiff and against the defendant herein for $10,000 and a verdict of not guilty as to Olbrich. On Olbrich’s counterclaim against the defendant they found for the defendant. The court set aside the verdict on plaintiff’s claim against Olbrich and after requiring* a remittitur of $4,000, overruled defendant’s motion for a new trial and in arrest of judgment and entered a judgment against defendant for $6,000. No appeal was taken as to any of the orders entered except as to defendant’s appeal on the judgment entered against it.

Defendant’s grounds for reversal are that the court erred in overruling its motion in arrest of judgment for the reason that the complaint did not state a cause of action; that the court erred in overruling its motion for a directed verdict and in rulings on evidence.

Upon the question of the sufficiency of the complaint, appellee in her brief states that this is a suit for damages against the defendant who caused the obstruction or dangerous condition in the public sidewalk or highway, and the question of whether or not the defendant is the owner of some property in the vicinity or whether it is landlord or tenant is wholly immaterial. Construing the pleading in the light of plaintiff’s theory, we are of the opinion that the complaint states a cause of action against the defendant in that it charges that the defendant kept and maintained the drainpipe in a dangerous condition; in other paragraphs, it is alleged that defendant negligently broke a drainpipe in a public sidewalk by driving its trucks over it and permitting it to remain in a broken condition. The pleading is silent as to whether the drainpipe in the sidewalk was within or outside the corporate limits of a city or village but it is referred to in the pleadings as a public sidewalk, dangerous for the public to travel over and that it was obstructed in violation of 'certain sections of the statute which refer only to sidewalks outside the corporate limits of cities and villages. Under these allegations, the plaintiff alleged" sufficient facts to state a cause of action.

The error assigned on the court’s ruling on the motion for a directed verdict requires a consideration of all the evidence to determine whether there is any evidence, when taken in its most favorable light, which tends to prove the charges of negligence in the complaint.

The undisputed evidence is that Olbrich placed the tile drain through the walk. It also appears that the defendant had leased the building for store purposes but there is no evidence which tends to prove that defendant had anything to do with the roof, downspout or the repair of the tile drain. Under this state of the record there is no evidence tending to prove the charge of negligence that the defendant kept and maintained the tile drain in a dangerous condition.

The other charge of negligence is that defendant drove its trucks over the tile drain causing it to break and then permitted it to remain in a broken condition for 20 days.

The evidence shows that there was no entrance to the building from the rear, but on the side where the cement walk was located there was a side entrance which was eight to ten feet from the corner of the building where the tile drain was located.

Plaintiff introduced the evidence of several witnesses to the effect that they had seen defendant’s trucks drive up to the side entrance, had seen them with their wheels on the walk, that the walk was crushed and cracked under the weight of the trucks. None of the witnesses fixed the approximate time when they observed the defendant’s trucks in the vicinity of the building or backed up to the side entrance further than it was some time during the three weeks immediately preceding the date of the accident. The width of the cement walk was shown to be about four feet and the cinder walk is assumed to have been the same width, thus making the tile drain through the walk about that length. The evidence does not disclose in what part of that drain the break occurred. If it were at the outer edge of the walk, it would be more reasonable to suppose that it was broken by a truck passing-over it than if it were near the inner side of the walk and close to the corner of the building. The gist of the evidence on this point is that the witnesses saw the trucks with defendant’s name on the side unloading at the side entrance. The witnesses fixed the location of those trucks at various positions, some of them stating that the trucks were backed up to the side entrance door and the merchandise was being removed from the rear; others, that the trucks were standing parallel with the building and unloading from the side of the trucks. There is nothing in the evidence which tends to prove the location of the wheels of the trucks while standing-in such position. The only evidence as to the size of the truck is that one witness said it was as big as a box car. No witness testified that they knew how the drain was broken or by whom. No witness testified that he ever at any time saw the wheels of the defendant’s truck on the cinder walk at the point where the drain was located. The evidence shows that the building did not cover all of Olbrich’s lot and that there was vacant space to the rear of the building; that at times it was used as a means of ingress to buildings adjacent to this; that the clerk and manager parked their automobiles in this space; that automobiles and trucks in driving to the rear of the lot crossed the cinder walk. Whether it was over the place where the tile drain was located or some other location does not definitely appear from the evidence. There is uncontradicted evidence that trucks other than defendant’s drove up to the side entrance for the purpose of delivering ice and other articles to defendant’s store. The evidence discloses that the cement walk near the side entrance was cracked and crushed. Defendant’s store manager testified that the defendant’s trucks did it, but there is no evidence that they did any damage to the cinder walk at or near where the tile drain was located.

There is no evidence from which it could reasonably be inferred that defendant’s trucks caused the damage to the broken tile. It is just as reasonable to infer that it was broken by some cause other than a truck driving-over it and if broken by a truck, that it was a truck or automobile belonging- to someone other than defendant. In order to sustain plaintiff’s contention on this point, it would be necessary first, to presume that the tile drain was broken by a truck and second, that it was defendant’s truck that did it. The law is that a presumption cannot be based upon a presumption for there is no open and visible connection between the facts out of which the first presumption arises and the fact sought to be established by the dependent presumption. Globe Accident Ins. Co. v. Gerisch, 163 Ill. 625. In this case the court quoted with approval from United States v. Ross, 92 U. S. (2 Otto) 281, as follows: “Such a mode of arriving at a conclusion of fact is generally, if not universally, inadmissible. No inference of fact or of law is reliable drawn from premises which are uncertain. Whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved, and not themselves presumed.” Campbell v. Centralia Gas & Electric Co., 224 Ill. App. 589; Condon v. Schoenfeld, 214 Ill. 226. The court erred in overruling defendant’s motion for a directed verdict.

The defendant offered in evidence the written lease he had with Olbrich for the building. In the lease, 01-brich covenanted to repair drainpipes leading from the building. Objection was sustained to the introduction of the lease. On the charge in the complaint that the defendant kept and maintained the tile drain, the introduction of the lease in evidence was proper.

For the reason assigned the judgment is reversed and the cause remanded.

Reversed and remanded.

On plaintiff’s petition for rehearing and defendant’s cross petition for rehearing it is ordered that the prayer of the cross petition be denied and that the judgment of reversal and remandment heretofore entered be changed and ordered that the judgment of the trial court is reversed.

Judgment reversed.


author: Mr. Justice Dove

text:
    Ciro Stanfa, Appellee, v. Mauriyio Buffo and Lucia Buffo, Appellants.
    Gen. No. 8,895.
    Heard in this court at the February term, 1935.
    Opinion filed May 17, 1935.
    Edward S. Foltz, Jr., of Rockford, for appellants.
    J. E. Goembel and Frank H. Hall, both of Rockford, for appellee.
   Mr. Justice Dove

delivered the opinion of the court.

Appellee instituted this suit on January 31, 1934, to foreclose a mortgage executed by Mauriyio Buffo and Lucia Buffo, his wife, on April 2, 1932, to secure the payment of a note for $4,000 and interest thereon, due two years after date. The mortgagors, who are appellants here, filed an answer and counterclaim, alleging that the mortgage sought to be foreclosed was executed by them in renewal of a previous mortgage which they had given to secure the payment of $4,000 upon which only $650 remained unpaid. Their answer and counterclaim further alleged that at the time of the execution of the renewal note and mortgage for $4,000, they believed they were executing a note and mortgage for the true balance due, which was $650, and that the renewal note and mortgage for $4,000 was procured by fraud and by false and fraudulent representations. The answer and counterclaim admitted that there was due from them under the provisions of the mortgage sought to be foreclosed the sum of $650, with interest from December 1, 1933, and sought to have the note and mortgage described in the original complaint reformed so as to correctly show the intention of the parties. The cause was heard by the chancellor and a decree of foreclosure and sale was rendered in favor of appellee, finding the amount due him to be $4,556, together with attorney fees as provided by the mortgage. From this decree appellants have brought the record to this court for review.

The uncontradicted evidence is that appellants purchased the premises involved herein on October 2,1926, from one Farino and that they obtained a portion of the purchase price by executing on that day their note for $4,000, due five years after date, bearing six per cent interest payable semiannually, and securing the payment thereof by a mortgage upon the premises purchased. Jasper St. Angel was at that time and for several years thereafter engaged in the real estate business and he was named as payee in the note and mortgagee in the mortgage, and the mortgage specified that both principal and interest were payable to the order of the mortgagee at the office of St. Angel & Company, which was a. corporation, Jasper St. Angel being an officer thereof. On the same day St. Angel assigned the mortgage and indorsed the note to appellee herein, but the assignment was never filed for record. For approximately five years appellants made payments of their interest monthly at the office of St. Angel and Company, paying St. Angel himself or an officer or employee of his company and also paid during this period at the same place and to the same parties $3,350 upon the principal, receiving proper receipts therefor. Jasper St. Angel paid appellee the interest on this note as in the note specified, regularly, but retained for his own use, or the use of his company, all of the principal payments which he had received from appellants. When the note and mortgage matured on October 2, 1931, there remained due from appellants thereunder only $650.

On September 16,1931, appellants executed an agreement, which recited that the unpaid principal sum of this note was $4,000, that it would mature October 2, 1931, that the then owner was appellee and that he had agreed to extend its payment for six months. On the same day, appellants executed an interest note for $120, due April 2,1932. On this latter date, appellants executed another note in the sum of $4,000 and secured the payment thereof by a mortgage upon the same premises covered by the prior mortgage. In this note, appellee was named as the payee and the mortgage was made to him as mortgagee, and it is this note and mortgage which forms the basis of this proceeding. Just prior to their execution, appellee, St. Angel, and appellants had several meetings and appellants were advised for the first time that the money which they had paid to St. Angel to apply upon the principal had not been turned over to appellee, but that St. Angel had converted it to his own use. It is the contention of appellants that at the time this renewal note- and mortgage were executed, they were led to believe and did believe that they were executing a note for $650 and that the execution of a $4,000 note and the mortgage to secure the payment of the same were obtained by St. Angel as agent and representative of appellee through his, St. Angel’s, false and fraudulent representations.

The renewal note and mortgage were prepared by an attorney representing appellee and given to St. Angel to have executed. He took them to the home of appellants and procured their signatures thereto, and he, St. Angel, executed the certificate of acknowledgment to the mortgage as a notary public. According to the testimony of Mauriyio Buffo, St. Angel told him just prior to the time he came to their home with the renewal note and mortgage that it would have to be renewed for the balance due, which was $650, and that the new mortgage would be for $650 and would be payable to him, St. Angel, just as the first one. At the time he and his wife signed the renewal note and mortgage, he testified that he said to St. Angel: “I’m signing for what I owed, $650.00, and St. Angel said ‘Yes,’ ” and relying on this statement, he signed the renewal note and mortgage. Lucia Buffo, the wife of Mauriyio, testified that before she signed the renewal note and mortgage, she also asked St. Angel if it was for $650 and he replied in the affirmative. St. Angel’s version as to the renewal transaction is as follows: “Before the mortgage was executed we had two or three meetings. Mr. Stanfa wanted to meet there (the home of appellants). Buffo said: ‘I owe only $650.00.’ I said, ‘Yes, but this man has the whole thing coming.’ He (Buffo) said: ‘I can get the money if I go to the people.’ I said: ‘You can’t get the money because you made the payment to St. Angel and Company, but if things get better I’m going to see you get this money after a while. ’ They were working in the basement that day, the table was all wet, I didn’t want to soil the whole thing so I folded it so they could sign it. They said they only owed $650.00. I said: ‘Yes but the balance is a credit to St. Angel and Company. If things get better we can collect the money. ’ Mrs. Buffo said while she was signing that she only owed $650.00 and I said: ‘Yes but this man has the whole thing coming.’ Mr. Buffo always said he only owed $650.00. St. Angel and Company owe the money and I am willing to take the responsibility for the balance if things get better. The agreement that I should pay the difference was agreeable to Mr. Stanfa. Mr. Buffo was to pay $650.00. All of the amount paid on the principal by the Buffos was paid prior to April 2, 1932. Mr. Q-oembel (one of the attorneys for appellee) made out the note and mortgage for Mr. Stanfa. They asked me to act as a Notary Public because they were Italians and I would understand their language. When the mortgage was due, Mr. Stanfa wanted to know who the Buffos were and I told him. The balance due of the principal from November, 1930 to date was $650.00 and I have been paying Mr. Stanfa interest since April 2,1932 and have paid him more than $400.00 money that St. Angel and Company had. I paid Mr. Stanfa direct and Mr. Buffo does not have anything to do or any notice that I am paying Mr. Stanfa.”

It is conceded that appellants are uneducated and could not read or write English. St. Angel was of the same race and they had implicit confidence in him. In procuring the extension agreement and the renewal of the original note and mortgage, St. Angel was acting for and on behalf of appellee, who owned the original note and mortgage from the time it was given in 1926. He, appellee, did not file his assignment of this mortgage for record and appellants did not know who owned it. St. Angel was named therein as mortgagee and appellants made payments to him at the place where by the provisions of the note and mortgage they were to be paid. The general rule that obtains in this State is that where an assignee of a mortgage fails to notify the mortgagor of his acquisition of the mortgage, such mortgagor is entitled, in the absence of knowledge of the transfer of security to show, in equity, as against the assignee, all payments made upon the mortgage after the assignment to the mortgagee. Daniels v. Carr, 233 Ill. App. 531; Towner v. McClelland, 110 Ill. 542. From October 9, 1926, to August 9, 1930, appellants paid St. Angel, the mortgagee, $3,350 to apply upon the principal sum due from Mm, together with all interest due thereon. If there had been no extension or renewal of the original mortgage, and appellee was seeking to foreclose the original mortgage, the amount he would have been entitled to have decreed to him would be $650, the unpaid balance. We do not think he is in any better position because of the execution of the extension agreement or the renewal note and mortgage by appellants, or because appellants and St. Angel executed an agreement dated June 21, 1932, by which they obligated themselves to pay appellee $4,000 evidenced by the renewal note of April 2, 1932, in Italian lire. St. Angel testified that he signed this to save trouble, that it was prepared by appellee’s attorney and signed by appellants in St. Angel’s presence and he told them they could pay $650 they owed and St. Angel and Company would pay the balance and that appellants signed it to avoid a foreclosure. All these instruments were executed because appellants accepted St. Angel’s statement that they'were payable to St. Angel and that the amount stated therein was $650, the true amount. There is no reason advanced and we can think of none, why appellants would knowingly have executed the extension agreement or the renewal note and mortgage for $4,000 when admittedly there was only $650 due from them. No consideration passed from appellee to appellants for their so doing. The last payment made by appellants upon the principal was made August 8, 1930. This payment reduced the principal to $650. On September 3, 1930, appellants paid St. Angel $3.50 on interest and a like amount on October 3,1930. Beginning with November 3,1930, and continuing each month thereafter until November 5, 1933, appellants paid St. Angel $3.25 regularly each month, which is interest at the rate of six per cent on $650. Appellee testified that both before and after the execution of the note and mortgage sought to be foreclosed herein, he, appellee, went to the office of St. Angel and received this interest money from him. On November 5, 1933, when the last interest payment of $3.25 was paid by appellants to St. Angel at his office the actual payment was made by James Branca, appellants’ stepson, who testified that appellee was at St. Angel’s office at that time and that he, Branca, gave the money to St. Angel, who gave him a receipt therefor, and thereupon St. Angel then gave the money to appellee. This is not denied by anyone.

In procuring the extension and renewal of the $4,000 mortgage, when only $650 was due thereon, appellee and St. Angel perpetrated a gross fraud on appellants, which no court of equity should countenance. In the early case of Lockridge v. Foster, 5 Ill. (4 Scam.) 569, the court said: “On the principles of equity and justice, a contract, to be obligatory, must be justly and fairly made. The contracting parties are bound to deal honestly, and act in good faith with each other. There should be a reciprocity of candor and fairness. Both should have equal knowledge concerning the subject matter of the contract; especially ought all of the' facts and circumstances which are likely to influence their action, to be made known. If they have not mutually this knowledge, nor the same means of obtaining it, it is then a duty incumbent on the one having the superior information to disclose it to the other. In making the disclosure, he is bound to act in good faith, and with a strict regard to truth. If he makes false representations respecting material facts, or intentionally conceals or suppresses them, he acts fraudulently, and renders himself responsible for the consequences which may result.” In 13 C. J. 371, the author of the article on Contracts states that if the other party to a written instrument induces the signer to sign the paper without reading it, and to rely on his statement, as to the contents, this may give the signer a right, if the statement was fraudulent, to avoid the contract as against him on the ground of fraud. “A false representation,” continues the author, “that a writing prepared by one party embodies the terms of a previous oral agreement, inducing the other party to sign without reading the instrument, has in a number of cases been held fraud which the party misled may assert against the other. And this, although he may have been guilty of a want of prudence in relying on such representations, the underlying principle of these decisions being that the negligence of a party to a contract induced by the fraud of the other cannot be taken advantage of by the latter.” See also Pustelniak v. Vilimas, 352 Ill. 270.

The decree appealed from is reversed and this cause is remanded to the circuit court with directions to enter a decree reforming the renewal mortgage executed on April 2,1932, as asked for in appellants’ counterclaim, and as so reformed enter the usual decree of foreclosure and sale.

Reversed and remanded with directions.