text:
    Louise Styblo and Rudolph Styblo, Appellees, v. James H. McNeil, Appellant.
    Gen. No. 42,186.
    Opinion filed January 6, 1943.
    Barnet Hodes, Corporation Counsel, for appellant; Jambs A. Velde, Emil J. Broz, Joseph W. Grigal, Alphonse Cerza and Barney Fagen, Assistant Corporation Counsel, of counsel.

      Abram E. Adelman, of Chicago, for appellees; Charles E. Gruenberg, of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

Rudolph Styblo and Louise Styblo, husband and wife, filed their amended two count statement of claim in the municipal court of Chicago against James H. McNeil to recover damages for personal injuries suffered by Louise and for damages to an automobile owned by Rudolph, incurred in a collision between the Styblo automobile and a police car of the City of Chicago being driven by defendant on August 19,1939. Count 1 alleged negligence and count 2 wilful, wanton and reckless conduct by the defendant in the operation of the police car. The case was tried before the court and a jury. The court directed a verdict for the defendant on count 1. The jury returned verdicts finding the defendant guilty, assessing Rudolph’s damages at $180, Louise’s damages a,t $1,500, and that malice was the gist of the action. Louise remitted the sum of $500. Motions by the defendant for directed verdicts, for judgments notwithstanding the verdict and for a new trial were overruled, and judgments were entered in favor of Rudolph for $180 and in favor of Louise for $1,000. Defendant appeals.

The defendant maintains that the trial court should not have entered judgment in favor of Louise because the verdict exceeded the jurisdictional limits of that" court. The parties are in agreement that this case is properly designated as of the fourth class, defined in section 2 of the Municipal Court of Chicago Act (sec. 357, ch. 37, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 108.028].) Fourth class cases include (a) all civil actions, quasi-criminal actions excepted, for the recovery of money only when the amount claimed by the plaintiff, exclusive of costs, does not exceed $1,000. Defendant cites People ex rel. McClintock v. Skinner, 13 Ill. 287; Reading v. Mead, 16 Ill. App. 360; and G. B. Hemmingway Co. v. Keagle, 181 Ill. App. 5, in support of Ms contention. We do not consider these cases applicable to the factual situation presented by the record before us. At the time Louise Styblo filed her action and at all times she was asking for damages in a sum not to exceed $1,000. The parties understood that the court’s jurisdiction in a fourth class case was limited to $1,000, except that in any action of that class for the recovery of money only, judgment may be rendered in an amount exceeding $1,000 where the excess “shall consist of interest or damages or costs accrued after the commencement of such action. ’ ’ At the time the case was submitted to the jury Louise was asking for an amount not to exceed $1,000. It cannot be doubted that wMle the case was on trial and while the jury was deliberating, the court had jurisdiction of the subject matter. The error occurred when the jury fixed the damages at the sum of $1,500. This error by the jury could not and was not discovered by the parties or the trial judge until the verdict was returned. Thereupon, Louise remitted $500. The court properly entered this remittitur. We are satisfied that the court had jurisdiction of the subject matter during the trial and at the time the judgment was entered.

The second point urged by defendant is that the plaintiffs did not prove their allegations of wilful and wanton conduct. Plaintiffs insist that the verdict is supported by the law and the evidence. At about 9:20 Saturday evening, August 19, 1939 the defendant, a police officer of the City of Chicago, was driving police squad car No. 148 of the 24th district north on WMpple street between 27th and 26th streets in Chicago, when through the police radio receiving set in the car he was told to make an investigation of an accident at Pulaski and Cermak roads. Pulaski road a north and south highway is 4000 west and Cermak road an east and west highway is 2200 south, according to the Chicago lot numbering system. Police Officer Raymond Grace was also on duty in the car. Both officers were in.uniform. At 26th street the defendant turned the car west and the car proceeded to Trumbull avenue (3450 west), eight blocks west of Whipple street. There are buildings on all four corners of the intersection of Trumbull avenue and 26th street. There are eastbound and westbound street car tracks on 26th street. There are no ‘ ‘ Stop and Go ’ ’ traffic signals at this intersection. At this time on Saturday night the intersection is very well lighted. It is a businejss district and the stores have their own lights in the street in addition to the street lights. Numerous pedestrians were on the sidewalks. On that evening the plaintiffs were in a 1934 Chevrolet automobile proceeding south on Trumbull avenue. Mr. Styblo was driving and Mrs. Styblo was in the front seat next to him. When the Styblo car reached 26th street he stopped north of the building line to allow pedestrians to cross. He then looked to the left and right and started to cross. He was going about six or seven miles an hour. Defendant testified that when he was about 40 feet from the intersection he saw the Styblo car and swerved to the left about five feet to avoid it; and that he thought Styblo would stop. Mr. Styblo testified that there was a screeching of brakes of the police car, which called witness’s attention to it; that when witness first saw the police car it was about 20 feet from him straddling one eastbound rail and one westbound rail, and that witness’s car was then between the westbound street car rails and had not reached the center of the street; that the police car skidded about 20 feet and struck the driver’s door of witness’s car. A crowd of about 400 people gathered. There were skid marks on the street for about five or ten feet back of the police car. The Styblo car was turned over on its right side facing in a southeasterly direction. Mrs. Styblo was pinned under the car and received serious and painful injuries. The Styblo car was damaged. Mr. Styblo climbed out, the car was righted, and he and Mrs. Styblo were removed to St. Anthony’s Hospital. Mrs. Styblo remained there for about two weeks. Both Officer Grace and defendant were injured and were also taken to St. Anthony’s Hospital. Officer Grace remained there for five days. His nose, mouth and head were injured and he was “supposed to have a possible skull fracture.” The defendant received a “bad bang” on the head and suffered cuts and bruises. At the scene of the collision the defendant was spitting blood into his handkerchief. After the collision both officers were walking in a sort of stupor or dizzy manner. There is a conflict in the evidence as to certain phases of the case.

Mr. Styblo testified that when he first saw the police car 20 feet from him it was going 30 to 35 miles an hour. He testified, “If the defendant sounded the siren, I didn’t hear it.” He also testified, “There .were absolutely no lights” on the police car. After the collision, the only time he saw the defendant was at the hospital, where he was close to him “about a half a second.” He testified that the defendant “was unsteady on his feet and had the odor of liquor on his person.” Mrs. Styblo testified that she did not hear a siren immediately before the collision, nor see any lights on an approaching automobile from either the east or the west and that she did not hear any screeching of brakes before the collision. Irwin Eisenhammer, standing about 200 feet west of Trumbull avenue on the south side of 26th street, heard the squeaking of brakes, looked east, and saw the collision. He ran up and helped others in turning Styblo’s car over in order to release Mrs. Styblo. He testified that when he was standing near the police car a man whom he did not know put his head and hand in the door of the car on the right side and pulled out a pint bottle. On direct-examination the witness said that the bottle “was half-filled with whiskey,” and that he saw a label on the bottle containing the words “blended whiskey,” but on cross-examination he testified that he did not know that the bottle contained whiskey. The man who took the bottle from the car, the witness testified, opened the bottle, put it in his pocket, and said, “I’m going to keep that for evidence.” He did not talk to the defendant and Officer Grace. The defendant, he testified, walked “pretty fair” but his “eyes were kind of bloodshot and when he walked right around why you could smell liquor.” The witness was about a foot away from the defendant for about two minutes. The man who (according to the testimony of Eisenhammer) took the bottle from the car, was not produced as a witness. Charles Blasak, who was 75 feet west of the intersection walking east, testified that he did not see any lights on the police car or hear any siren or horn. He testified that the rear of the Styblo car “was just crossing the south rail of the westbound tracks at the time of the accident.” Edward Cronin testified that about 9:30 on the evening, of August 19, 1939 he was on the south side of 26th street between Christiana avenue (3350 west) and Homan avenue (3400 west). He was walking west. He heard a siren at about Christiana avenue and saw a police squad car going west on 26th street. He heard the siren after the car passed Homan avenue and was approaching Trumbull avenue. After the police car passed him, he stepped into the doorway of a store about three doors east of Homan avenue. Shortly thereafter he went out and approached Trumbull avenue and 26th street and saw the Styblo car and the squad car at the corner. He did not see or hear the collision. He testified that when he viewed the police car after the collision one light on the left hand side was burning and the other light was ‘ all smashed in.” He saw defendant and Officer Grace there. They both were dazed; the defendant was spitting blood; Officer Grace had blood “all over his face” and a cut over his nose. He estimated the speed at which the police car was traveling while he was observing it, at “about 25 miles an hour.” Officer Gfrace testified that the siren on the squad car was operated from a button-on the dash board. When the button is pressed the siren blows for a while and as the warning sound begins to die, the button is pressed again. He testified that as the squad car started west on 26th street “where the traffic is heavy,” they began to sound the siren, that the siren was sounded all the way from Whipple street to Trumbull avenue, where the accident occurred. He estimated the speed of the squad car at about 20 or 25 miles an hour. He stated “there was no liquor in that squad car. ’ ’ On cross-examination he testified that he did not drink at all and that he had never seen defendant take a drink. As to the lights of the car, he testified that they were lighted about 8:30 and he remembered that he saw them ahead of the car when it entered an alley at Pilsen Park. This occurred just before they received instructions by radio to make the investigation. The defendant testified that the siren was sounded steadily from the time the squad car turned into 26th street until the collision. While traffic was heavy on 26th street, he had no difficulty with it since the siren was going and motorists pulled to the side of the street to let the squad car go by. When the car was on 26th street, it was going about 25 miles an hour. He saw the Styblo car when he was about 40 feet from the intersection of Trumbull avenue. He swerved to the left and thought that Mr. Styblo would stop. He had driven a car about 18 years. He testified that he was not a drinking man, that “now and then I have a glass of beer.” He examined the squad car before he took it out and if there had been, a bottle back of the driver’s seat he would have known it.

Mrs. Styblo suffered severe and painful injuries. She suffered a cut on the back of her head from ear to ear, requiring 30 sutures. This cut went to the bone. The flesh, tendons and muscles were severed. She was cut on the thigh and suffered a fracture of the right wrist. The injury to her wrist is permanent. There is an area on her scalp which will be permanently bald.

The defendant asserts that there is no evidence to support the allegation of wilful and wanton conduct and that it was the duty of the court to direct verdicts in his favor. He points out that he was a police officer engaged in the performance of his duties prior to and at the time of the collision. He cites the case of Taylor v. City of Berwyn, 372 Ill. 124, where a judgment was rendered against a police officer who was driving a car at a high rate of speed. The Supreme Court affirmed the action of the Appellate Court in reversing the judgment against the city and the police officer. Defendant calls our attention to various provisions of chapter 27 of the Municipal Code, entitled “Traffic.” Chapter 27-1 defines authorized emergency vehicles as:

“Any vehicle of the Chicago fire insurance patrol, the fire department or police department of any governmental agency, any repair or service vehicle of any • public service corporation, or any ambulance.”

Section 27-6 grants exemptions to authorized emergency vehicles as follows:

“. . . No operator of any authorized emergency vehicle shall assume any special privilege under this section except when such vehicle is operated in response to an emergency call, and this exemption shall not protect the operator of any such vehicle from the consequences of a reckless disregard of the safety of others.”

Section 27-38 contains the following speed limitation:

“It shall be unlawful to operate any motor vehicle upon any street or other public way of this city at a speed greater than is reasonable and proper, having regard to the traffic and the use of the way or so as to endanger the life or limb or injure the property of any person. If the, rate of speed of any motor vehicle operated upon any public street or highway where the same passes through a business district exceeds twenty miles an hour, or if the rate of speed of any such motor vehicle operated on any public street or highway in the city where the same passes through a residential district exceeds twenty-five miles an hour, or if the rate of speed of any such motor vehicle operated on any public street or highway in this city in a sparsely settled district exceeds thirty-five miles an hour, such rates of speed shall be prima facie, evidence that the person operating such motor vehicle is running at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of the way or so as to endanger the life or limb or injure the property of any person.”

Section 27-47 reads as follows:

“Upon the approach of any authorized emergency vehicle giving audible signal, the operator of every other vehicle shall immediately drive the same to a position as near as possible and parallel to the right-hand edge or curb of the street, clear of any intersection, and shall stop and remain in such position until the authorized emergency vehicle shall have passed, unless otherwise directed by a police officer. The motorman of every street car shall immediately stop such car clear of any intersection and keep it in such position until the authorized emergency vehicle shall have passed, unless otherwise directed by a police officer.”

Section 169, ch. 95½, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 85.201], provides that:

“(a) Upon the immediate approach of an authorized emergency vehicle, when such driver is giving audible signal by siren, exhaust, whistle or bell, the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to, the right-hand edge or curb, of the highway clear of any intersection and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer. . . . (c) This section shall not operate to relieve the driver of an authorized emergency- vehicle from the duty to drive with due regard for the safety of all persons using the highway. ’ ’

It Avill be observed that the municipal ordinance provides that the driver of an emergency vehicle shall not assume any special priidlege under the section, except when the vehicle is operated in response to a call, and that when he is responding to an emergency call he is not protected from the consequence of a “reckless disregard of the safety of others,” and that sec. 169, ch. 95½, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 85.201] provides that the operator of an emergency vehicle is required to drive Avith due regard for the safety of all persons using the highway. The evidence by plaintiffs is that the defendant failed to sound the siren of his car. The evidence on behalf of defendant is that he did sound the siren. The defendant urges that the testimony that defendant did not sound his siren is negative in character and does not prove that the siren Avas not sounded. He cites cases from which he argues that negative testimony of the kind presented by plaintiffs will, not support a judgment based on allegations of wilful and wanton conduct. If a defendant were not in fact sounding his siren, the normal way for a plaintiff to prove such fact would be by producing witnesses who were within hearing distance to testify that they did not hear a siren. If negative testimony of this character is to be disregarded, then it would be well nigh! impossible to prove in any case that the siren was not sounded. We do not view the cases of Provenzano v. Illinois Cent. R. Co., 357 Ill. 192, 196, and Bryan v. City of Chicago, 371 Ill. 64, 70, as holding that testimony of a negative character is to be disregarded. Such testimony is to be carefully searched and weighed. In the Prov emano and Bryan cases the Supreme Court did not feel that the testimony of a negative character supported plaintiffs’ allegations. We find that in the instant case there was sufficient evidence to warrant the jury in finding that the defendant did not sound the siren. However, the evidence of plaintiffs is not confined to an endeavor to show a failure to sound the siren. There was testimony that the. defendant did not have the headlights lighted. The evidence introduced by the defendant was to the effect that the headlights were lighted. Plaintiffs also introduced testimony to support a charge that the defendant was intoxicated. The testimony introduced by the defendant supported his denial of the charge. There was a conflict as to the rate of speed.' Mr. Styblo estimated the speed of the police car at 30 to 35-miles an hour. Officer Grace, Edward Cronin and the defendant estimated the speed at 20 to 25 miles an hour. Considering the force of the collision and all other circumstances, the jury was justified in believing that the defendant was driving the car at a speed of 30 to 35 miles an hour. We are of the opinion that the evidence supports the verdict of the jury that the defendant was guilty of wilful and wanton conduct in driving the car, thereby causing the injuries and damage. Defendant asserts that the trial judge erred in failing to direct a verdict as to the wilful and wanton count after he had directed a verdict on the negligence count. A careful examination of the record convinces us that the court did not err in refusing to direct a verdict on the wilful and wanton count. Our view is that the court erred in directing a verdict in favor of the defendant as to the negligence count. We believe that there was sufficient evidence to go to the jury on both counts.

Defendant insists that the trial court erred-in permitting a portion of the traffic code to be read to the jury at the conclusion of the testimony of Rudolph Styblo. The record shows that the attorney for plaintiffs announced that he was going to read into the evidence paragraph 38 of the Municipal Code of Chicago of 1939. Thereupon the attorney for the defendant inquired, “You want to read that into the evidence now?”, to which the attorney for the plaintiff replied, “That is right.” The attorney for defendant then stated, “I do not think it is proper at this time.” One of the attorneys for the defendant then inquired, “Are you through with the plaintiff?”, to which plaintiff’s attorney replied, “No, I am not.” Then defendant’s attorney said, “Then I object because it isn’t proper.” The court overruled the objection. The attorney for .the plaintiff then read the following to the jury:

“It shall be unlawful to operate any motor vehicle upon any street or other public way of this city at a speed greater than is reasonable and proper having-regard to the traffic and the use of the way or so as to endanger the life or limb or injure the property of any person. If the rate of speed of any motor vehicle operated upon any public street or highway of this city where the same passes through a business district exceeds twenty miles an hour, or if the rate of speed of any such motor vehicle operated upon any public street or highway in the city where the same passes through a residential district exceeds twenty-five miles an hour or if the rate of speed of any such motor vehicle operated on any public street or highway of this city in a sparsely settled district exceeds thirty-five miles an hour, such rates of speed shall be prima facie evidence that the person operating such motor vehicle is running- at a rate of speed greater than is reasonable and proper having- regard to the traffic and use of the way or so as to endanger the life or limb or injure the property of any person.”

We agree with plaintiff that the objection of the defendant was not sufficiently specific. The objection was general. An objection, except where it is obvious, should be stated in such a manner as to inform the court of the point being urged. Apparently, the objection was that the reading of the section of the ordinance was improper at that time. The objection was not directed to the action of counsel in reading the section, but to reading it “at this time.” On, appeal the parties argue as to the application of the provisions quoted relating to the operation of an emergency vehicle and the rights and duties of the driver and of other drivers and pedestrians. We have carefully examined the record and do not find any instructions tendered or given to,the jury on this subject. The injuries suffered by Mrs. Styblo were painful and severe and will be permanent. The judgment for $1,000 is inadequate. The evidence would warrant damages for a greater sum.

For the reasons stated, the judgments of the municipal court of Chicago are affirmed.

Judgments affirmed.

Hebel and Kilby, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Burke

license: Public Domain

text:
    Louis Hirschberg, Appellee, v. Ollie Russell and Ora Callahan, Appellants.
    Gen. No. 42,262.
    Opinion filed January 6, 1943.
    James F. Toung and Joseph A. Fenton, both of Chicago, for appellants.
    Samuel Arthur Karlin, of Chicago, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On December 10,1941 Louis Hirschberg filed a complaint in forcible detainer in the circuit court of Cook county against Ollie Russell and Ora Callahan for possession of the building known as 728-30 Barry ave., Chicago. Defendants filed an answer. A trial before the court without a jury resulted in a finding and judgment that plaintiff was entitled to possession of-the premises. Defendants appeal. There is no dispute as to the facts.

On September 5,1940 Bernice Grace Melchert Wolf, the owner, and the defendants signed a lease for the premises for the period commencing December 1, 1940 and ending November 30, 1945, at a rental of $200 per month. Clause 12, contained in a rider attached to and made a part of the lease, reads in part: “Lessor shall have the right to terminate this lease, and the term hereby demised, to take effect at any time after one year from the date hereof in the event the Lessor shall make a bona fide written contract for the sale of said premises or a bona fide sale of said premises.” In a clause of the lease the parties “agree that the covenants and agreements herein contained shall be binding upon, apply and inure to, their respective heirs, executors, administrators and assigns.” The defendants entered into possession of the premises and paid the rent called for by the lease. On January 7,1941 Bernice Grace Melchert Wolf conveyed the premises to Henry Hoelcke, and on January 27, 1941 Hoelcke conveyed the premises to Charlotte J. Ebert, as trustee. Kate DeWitt was designated as first successor trustee. Charlotte J. Ebert, the trustee, died. Kate DeWitt, as first successor trustee, conveyed the premises by warranty deed to Louis Hirschberg, plaintiff. This deed is dated March 5, 1941. A notary public certified under his hand and seal on March 5,1941 that the grantor appeared before him on that date in person and acknowledged that she signed, sealed and delivered the instrument as her free and voluntary act for the uses and purposes therein set forth. The deed was recorded on March 19, 1941. On the deed was a notation directing the recorder to mail it to Karlin and Marks, the attorneys who represented plaintiff in the purchase of the real estate. At the time that Bernice Grace Melchert Wolf conveyed the premises to Henry Hoelcke she made a written assignment of the lease. Likewise, Hoelcke made an assignment of the lease to Charlotte Ebert, as trustee. Kate DeWitt, as first ■ successor trustee assigned the lease to plaintiff. This assignment is dated March 5, 1941, the date of the deed. Paul J. Quetschke & Company, a corporation, acted as agent and real estate broker for the vendor in the management and sale of the property. In closing the deal for the sale of the real estate to plaintiff, the parties made an escrow agreement dated March 6, 1941, naming the Chicago Title & Trust Company as escrowee. Under the terms of this agreement the escrowee received all of the documents, including the warranty deed dated March 5,1941, certified checks representing the consideration involved, and the lease. The first provision of the escrow agreement was that the deed was to he recorded when the checks representing the consideration were paid. It was further provided that the title company was then to determine by search whether it was to issue its guarantee policy. The escrowee was then authorized and directed to pay the consideration in the sum of $10,037.97 to Kate DeWitt, as first successor trustee, and to deliver the lease to S. A. Karlin, an attorney for plaintiff. The escrow agreement further provided that in the event the escrowee was not prepared to issue its guarantee policy by April 6,1941, it was to continue to comply with the instructions given until the receipt of a written demand from any party to the agreement for the return of the deposits made by such party. In that event, the money deposited as consideration was to be returned to the parties entitled thereto, and the purchaser, Louis Hirschberg and his wife were to deliver a quitclaim deed to the vendor re-conveying the real estate. The quitclaim deed was to be recorded and a title search again made. On March 7,1941 a notice of termination was sent by registered mail to the defendants. Apparently, the notice was received by the defendants on the day it was mailed. This notice was signed, “Kate DeWitt, First Successor Trustee to Charlotte J. Ebert, Trustee, deceased, by Paul J. Quetschke & Co., Agents, By Edw. H. Streckert,” and recited the provision that the lessor shall have the right to terminate the lease to take effect any time after one year from the date of the lease in the event the lessor made a bona fide sale of the premises. The notice informed defendants that the lessor did on March 5,1941 make a bona fide sale of the premises to Louis Hirschberg, and stated that in accordance with the terms of the lease, “we have elected and do hereby elect to cancel said lease as of December 1, 1941, the said term to expire on said date and the lease thereafter to be cancelled and of no force and effect.” Defendants paid the rent for the premises to and including the month of November, 194L Defendants did not vacate the premises, as requested in the notice, and on December 2, 1941 plaintiff served defendants with a demand for immediate possession, following which the complaint was filed.

Defendants maintain that at the time the instant suit was commenced, plaintiff did not have a right to possession of the premises, and point out that the notice of termination was signed by Kate DeWitt, first successor trustee to Charlotte J. Ebert, trustee, deceased, on March 7, 1941, when she did not have any right, title, interest in or control over the premises. Defendants insist that the deed from Kate DeWitt took effect on March 6, 1941, the day it was deposited in escrow with the title company. They say that under the escrow agreement the escrowee had instructions to record the deed, that it was not delivered to the escrowee conditionally, that when Kate DeWitt delivered her deed to the escrowee, she lost all right, title and interest in the premises, and that the subject matter of her agency with Paul J. Quetschke & Company was thereby terminated. Plaintiff asserts that as the assignee of the lease, he has the right to possession of the premises; that defendants were served with proper notice of termination of tenancy; that the deed from the vendor did not take effect on March 6, 1941, the date it was placed in escrow, and that the agency of Paul J. Quetschke & Company for the vendor continued throughout the entire period of the escrow.

Defendants rely strongly on the case of Gates v. Norton, 228 Ill. App. 96, and Price v. Pittsburgh, Ft. W. & C. R. Co., 34 Ill. 13. One of the points decided in the Gates case was that a provision for termination such as that contended in paragraph 12 of the lease in the instant case, is a covenant which runs with the land and passes to the successive grantees of the original lessor. In that case this court sustained a judgment for the tenant. However, the factual situation was not at all analogous to the situation presented here. Nor do we consider the rule announced in the Price case applicable to the facts of the instant case. If the deed took effect on March 6, 1941, when it was placed in escrow, then of course at the time the notice was given by Kate DeWitt, she had no interest in the property and such notice would not be effective. In Huber v. Williams, 338 Ill. 313, the Supreme Court said (318):

“A delivery may be made by acts without words, by words without acts, or by both words and acts, and anything which clearly manifests the grantor’s intention that the deed becomes operative and effectual, that he loses control over it and that the grantee becomes possessed of the estate, constitutes a sufficient delivery. ... A deed is delivered as an escrow where it is deposited with a third person to be delivered by him to the grantee only upon the performance or fulfillment of some condition. The deed is not operative to convey the title until the happening of the event upon which the grantee becomes entitled to the possession of the deed. . . . When that event occurs the delivery by the person holding the instrument will constitute delivery to the grantee.”

In Johnson v. Wallden, 342 Ill. 201, the. Supreme Court said (206):

“Where a deed is delivered to a third person with instructions to deliver to the grantee named therein upon the happening of an event which is certain to occur, the title vests in the grantee upon the delivery in escrow and is not derived through any contract other than the deed itself. ... A deed is delivered as an escrow where it is deposited with a third person, to be delivered by him to the- grantee only upon the performance or fulfillment of some condition. The deed is not operative to convey the title until the happening of the event, upon which the grantee becomes entitled to the possession of the deed.”

The principal reason for the escrow was to protect the parties in the event the checks were not paid. We are of the opinion that under the terms of the escrow agreement the deed from Kate DeWitt was deposited with the escrowee with instructions to deliver it upon the happening of an event which was not certain to occur. It frequently happens that checks are not honored. It cannot be said that the payment of the checks deposited with the escrowee was an event certain to occur. The lessor was given the right to terminate the lease by notice to take effect at any time after one year from its execution in the event the lessor made a bona fide written contract for the sale of the premises, or a bona fide sale of the premises. As we have seen, this is a covenant which runs with the land and passed to the successive grantees of the original lessor. Kate DeWitt, as first successor trustee, sold the premises to plaintiff. Under the plain terms of the lease she had a right to give notice that the lease would terminate. At the time the notice was given she was still the owner of the premises. The record shows that the deed was not delivered by the escrowee to the plaintiff until after the notice to terminate was served on the defendants. The defendants were notified by the vendor of her election to take advantage of the cancellation provision, concurrently with the pendency of the escrow, and before the purchaser received or was entitled to the lease to the property. The lease was one of the documents placed in escrow. In some cases, in order to prevent injustice or to effectuate the intention of the parties, the delivery of the deed to the grantee is considered to operate retroactively and to relate back in time and effect to the date the escrow was created. However, this is not a case which calls for the application of that rule. In this case the notice to terminate was given in accordance with the terms of the lease, and by Kate DeWitt, as successor trustee, who at that time had the right to give the notice. We also find that at the time the notice was given, the agents signing and serving the notice were authorized to do so. Based on the notice so given, plaintiff, as the purchaser, had the right to possession of the premises on December 1, 1941.

Defendants argue that there was a variance between plaintiff’s pleadings and the proofs. We are of the opinion that there was no variance. Perceiving no error in the record, the judgment of the circuit court of Cook county is affirmed.

Judgment affirmed.

Hebel and Kilby, JJ., concur.


author: Mr. Justice Hebel Mr. Presiding Justice Burke

text:
    William C. Jerome, Appellant, v. 5019-21 Quincy Street Building Corporation, Appellee.
    Gen. No. 41,832.
    Burke, P. J., dissenting.
    Opinion filed January 6, 1943.

      John L. Davidson, Jr., of Chicago, for appellant.
    George M. Tearney, of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

The plaintiff appealed from an order entered upon a petition to vacate a judgment rendered more than 30 days prior to the presenting of said petition. The judgment was entered on March 3, 1941, and the petition to vacate was presented April 29,1941. The order vacated the judgment of March 3, 1941, and was entered upon the presenting of the petition on April' 29, 1941 without any rule upon the plaintiff to answer said petition and without any answer or formal plea thereto having* been filed. The judgment vacated was rendered in a common-law action brought by the plaintiff to recover compensation for services rendered by him as an attorney-at-law on behalf of the defendant at the defendant’s special instance and request. This judgment was entered upon a finding of the court after default by the defendant.

The petition to vacate the judgment, which operates as a declaration or complaint, was presented April 29, 1941, after the expiration of 30 days from the date of the rendition of the judgment on March 3, 1941, and is in substance as follows:

“Petition
“Tour petitioner, George M. Tearney, represents that he is the attorney for the defendant, 5019-21 Quincy Street Building Corporation, a corporation.
“Tour petitioner further represents that the secretary of said corporation, Flora Cornell, was served with summons in the above entitled cause on, to wit, the 1st day of February, 1941, and the Sheriff’s return on original summons indicates said date of service; that the summons was made returnable for the first Monday in February, 1941, or the third Monday in February, 1941.
“Tour petitioner further represents that since service of summons was had on the 1st day of February, 1941, the defendant corporation was entitled to a minimum of twenty days’ time within which to file Appearance and Answer herein, and because the third Monday in February was the 17th day of said month and 20 days from date of service of summons herein was beyond the 17th day of February, 1941, indicated in the summons as the third Monday in the month, the defendant corporation by the rules of this Court was not required to file an Appearance and Answer herein until the first Monday in March, 1941.
“Tour petitioner further represents that the plaintiff, by his attorney, John L. Davidson, Jr., entered a default against the defendant corporation before the first' Monday in March, 1941, and judgment was entered for the plaintiff on the 3rd day of March, 1941, which was the return day because of the date of service of summons herein.
“Tour petitioner further represents that the default herein was taken prematurely and without cause.
“Tour petitioner further represents that the defendant corporation has a good and meritorious defense to the whole of the complaint filed herein as evidenced by its Defense, which was filed herein.
“Tour petitioner further represents that his first knowledge that judgment had been entered herein was on the 21st day of April, 1941 when an execution and bill for costs based upon the judgment entered was served on the secretary, Flora Cornell, and this has been his first opportunity to present this matter before this Honorable Court.
“Wherefore, your petitioner prays that this Honorable Court vacate the judgment hereinbefore entered, and prays that the matter be reset and the issues tried as joined by the pleadings.
(Signed) George M. Tearney”

The petition was verified by the affidavit of George M. Tearney April 24,1941.

The court in this action did not rule that the plaintiff answer said petition, and no answer or formal plea was filed but upon said petition being presented on April 29, 1941 the court entered an order thereon as follows:

“On motion of George M. Tearney, solicitor for defendant, notice and petition having been filed herein, the plaintiff and counsel for defendant being present in open court, after hearing had, and the Court being fully advised in the premises and having jurisdiction of the parties hereto and subject matter;
“It is hereby ordered, adjudged and decreed that default judgment herein entered against defendant corporation on the 3rd day of March, A. D. 1941, be" vacated and set aside; and,
“It is further ordered that the defendant’s plea or answer to complaint be filed within five days from date hereof.
“Entered, by Harry M. Fisher,.Judge.”

It appears from the record in this case that defendant’s plea or answer to the bill was filed within the time fixed by the order. The answer of the defendant which was filed denies that plaintiff performed any legal services for the defendant and denies that the value of services was $4,000; denies that plaintiff was paid $125, and denies that plaintiff is entitled to any relief. The affidavit of Attorney George M. Tearney is that the answer is true.

From the facts as they are stated and appear in the records it appears that on January 14,1941, the plaintiff brought suit to recover compensation for services rendered by him as an attorney-at-law to the defendant, which services he alleges in his complaint were worth $4,000. He allowed a credit of $125 on account of money previously paid to him, and demanded judgment for a balance of $3,875.

Summons was issued on January 14, 1941, and placed in the hands of the sheriff of Cook county for service. The summons was in the form prescribed by rule 4 of the Rules of the Supreme Court of Illinois and was addressed to the defendant and, in substance, gave notice to defendant 5019-21 Quincy Street Building Corporation, a corporation, as follows:

‘‘ To the above named defendant:
“You are hereby summoned to answer the complaint in the above entitled cause.
“Take notice that you must file your answer or otherwise make your appearance in said court held in the court house in the City of Chicago, Illinois, on or before the first Monday in the month of February, 1941, provided this writ shall be served upon you not less than 20 days prior to said date.
“If this writ shall be served upon you less than 20 days before said date, you will file your answer or , otherwise make your appearance in said court on or | before the third Monday in the month of February, 1941.
“If you do not appear according to the command of this writ, plaintiff may take judgment against you by default.
“This summons must be returned, in person or by mail, by the officer or other person to whom it was given for service, with indorsement thereon of service and fees, if any, not later than 5 days after service thereof and in no event later than the date first above named. ’ ’

The sheriff’s return indorsed on said summons states that he served the summons on the defendant by leaving.a copy with Flora Cornell, an agent of said corporation, on the first day of February, 1941. February 3 was the first Monday in February, and the summons was therefore served on the defendant only two days before the first return day. On the reverse side of the summons is the file stamp of the clerk of the circuit court “Filed 1941 Feb 6 A. M. 11.11.” On March 3, 1941, no appearance or answer having been filed by the defendant, plaintiff procured an order of default to be entered and obtained judgment in the sum of $3,875, and costs taxed at $18.20.

Execution was issued March 4, 1941, and a demand for payment thereunder was made on the defendant April 22, 1941. The petition of George M. Tearney, attorney for the defendant, asking the court to vacate said judgment, was presented April 29, 1941, pursuant to a notice served on plaintiff April 28, 1941.

The plaintiff in this action suggests that the circuit court was without jurisdiction on April 29, 1941 to set aside or vacate the judgment entered March 3, 1941, and points to the fact that the judgment was rendered March 3, 1941; that the petition of George M. Tearney to vacate the judgment was presented and filed April 29, 1941, which was after the expiration of 30 days from the rendition of the judgment; the judgment of March 3, 1941 could not be vacated after 30 days from the date it was rendered, and it is urged that prior to the adoption of the Civil Practice Act the court had jurisdiction, during the term at which a judgment was rendered, to vacate or set aside the judgment but, after the expiration of the term, the court was without jurisdiction to vacate the judgment. When the Civil Practice Act was adopted the statute giving the court jurisdiction over the judgment for 30 days after its entry was substituted for the rule by which the court retained jurisdiction during the term. Section 82, ch. 77, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 104.099] (State Bar Ed.) provides:

“Hereafter every judgment, decree pr order, final in its nature, of any court of record in any civil or criminal proceeding shall have the same force and effect as a conclusive adjudication upon the expiration of 30 days from the date of its rendition as, under the law heretofore in force, it has had upon the expiration of the term of court at which it was rendered.” Plaintiff cites in support of his contention the case of Travelers Ins. Co. v. Wagner, 279 Ill. App. 13, pages 14, 15, in which the court said:
“It is well established that where final judgment has been entered and the term has expired the court has no longer jurisdiction to vacate the judgment except where the petition to vacate asserts some error of fact unknown to the court at the time judgment was rendered as well as one which would have precluded the rendition of the judgment, such as fraud, duress or excusable mistake without negligence on the part of the defendant.”

Plaintiff also cites the case of Whalen v. Twin City Barge & Gravel Co., 280 Ill. App. 596 in which the court said:

“No rule of practice was better settled than that a court retained jurisdiction of the parties and the subject matter of the suit until the end of the term of court, and a judgment did not become final or pass beyond its control until that time; such is not the law, since, under the provisions of the Civil Practice Act, terms of court are no longer the basis for fixing the time for doing any act or the taking of any procedural step. By an act of the General Assembly, approved June 21, 1933, in force January 1, 1934, Cahill’s Rev. St. 1933, Ch. 110, Par. 268, 269 (Smith-Hurd Rev. St. 1933, Ch. 77, Secs. 82, 83) it is provided that all judgments of any court of record in any civil or criminal proceeding shall have the same force and effect as a conclusive adjudication upon the expiration of 30 days from date of its rendition, as under the law heretofore in force it has had upon the expiration of the term of court at which it was rendered, . . . . ”

Plaintiff further cites Davis v. East St. Louis & Suburban Ry. Co., 290 Ill. App. 540.

Plaintiff in this action states that the circuit court was without jurisdiction.

It is the defendant’s position in this appeal that the court had jurisdiction to vacate and set aside an order or judgment where some error of fact existed unknown to the court at the time the order or judgment was entered. As we have already indicated, the plaintiff cited the case of Travelers Ins. Co. v. Wagner, 279 Ill. App. 13, and maintains that the petition filed there was similar to the one filed in this case. Although this may be true, the facts surrounding the situation were entirely dissimilar. When we come to consider the facts in this case it would appear that the sheriff’s tardy return was the basis of the court’s ruling, although more than 30 days had elapsed from the entry of the judgment and it appears from the pleadings that were filed by the parties that it is agreed by the plaintiff and defendant that a petition in the nature of a writ of error coram nobis would have been a proper plea under the facts in the instant case if the filing of such writ was still the practice, but that although the writ has been abolished it is still the ruling law that errors of fact committed in the proceedings of any court of record may be corrected by the court in which the error was committed at any time within five years after the order complained of was entered.

The defendant cites the case of Chapman v. North American Ins. Co., 292 Ill. 179, where the court held that an error in the process or through the default of the clerk which was of sufficient character to preclude the judgment, but which was unknown to the court at the time the judgment was rendered, and did not appear on the face of the record, was sufficient to reverse or recall the judgment, and alleges that the circuit court therefore had jurisdiction to vacate the judgment rendered in spite of the fact that more than 30 days had elapsed since the entry of the order, and that the court had the right to reserve or recall a judgment on mere application or petition.

As to the ruling upon the sheriff’s neglect to return the summons, the plaintiff makes no mention of this and would have this court believe that this point may be raised now for the first time.

The plaintiff states and seems to take the position that the trial court by vacating the default judgment invalidated the summons and service of it. Had this been the ruling of the trial court and had the trial court held the summons invalid, the order vacating the default judgment would not have directed the defendant corporation to plead or answer the complaint. If, as plaintiff suggests, the summons had been invalidated, and this had been the ruling of the trial court, defendant would not be in court, and therefore the trial court could not direct it to plead or answer. However, it appears from the conclusion of the court that it found that the officer or other person to whom summons was given for service had not returned the summons by the first return day named in the summons as required by rule 4(2) of the Supreme Court, which specifies that “the summons must be returned by the officer or other person to whom it was given for service, with indorsement thereon of service and fees, if any, or of failure to serve the same, within 5 days after the service thereof, and in no event later than the first return day named in said summons.” It appears in this case that the file stamp on the original summons indicated that the summons was returned three days after the first return day, and this was the i basis upon which the trial court set aside the default.

It would appear from the record in this case that the enforcement of the rule contemplated and the distinction was made between a summons properly served and properly returned and one properly served but improperly returned, for the reason that the defendant corporation was directed to answer the complaint and join issue. It is apparent that the trial court considered the service binding. Therefore there is nothing in the order to indicate that this summons was invalidated.

It would appear from this record that the defendant does not question the sheriff’s service of summons, but questions the proper return of the summons. The lower court’s action in setting aside the default was based upon this point and following the court’s attitude in Nikola v. Campus Towers Apartment Bldg. Corp., 303 Ill. App. 516, it is herein submitted that the trial court had a right to vacate the default upon motion rather than requiring the defendant to file a complaint, pray this relief, and subsequently granting it.

One question that seems to be called to the attention of this court is whether the record indicates that the defendant had a good and meritorious defense. The defendant by its attorney filed appearance and answer to the complaint filed by the plaintiff. Unbeknown to the defendant corporation, a default had been entered against it prior to the filing of its appearance and answer. It appears further that this answer was on file and was considered by the trial court upon the date that the motion to vacate was heard. For this reason the defendant in its petition referred to its defense as having been previously filed herein. The plaintiff, in its abstract of record specifically shows the answer to the complaint filed and summarizes its contents.

The complaint as we have already indicated alleges that the plaintiff was employed by the defendant to perform legal services which services were performed, and that the reasonable value thereof was $4,000. The defendant, however, in its answer denies that the plaintiff performed any legal services to the defendant and denies that the value of the alleged services was $4,000. Plaintiff alleged that the defendant had paid $125 on the account and that there was a balance remaining due to him of $3,875. On the other hand, the defendant denied that it paid the plaintiff the sum of $125 on the account and denied that there was a balance due plaintiff of $3,875 or any other sum. It would appear from interpretation and the questions of fact that were created by the plaintiff’s pleadings that the defendant by its answer pleaded .to the whole of the complaint. It is therefore contended that the defense on file was clearly adequate and meritorious.

The plaintiff in directing what the action of the defendant should be or what his course may be, cites the section of the Practice Act which indicates that a motion in the nature of a writ of error coram nobis presented in writing at any time within five years after the rendition of the final judgment is proper. It is therefore noted that nowhere in this section, or by any interpretation of it, is it maintained or directed that such motion must necessarily contain a meritorious defense as well as a recitation of the basis for the motion. It is urged that the section merely states that the motion shall be in writing and presented within five years after the date of the rendition of the judgment in the case. It is suggested that if the defendant follows plaintiff’s theory there can be no quarrel on the question of whether or not a meritorious defense was filed by the defendant. However, the defendant does not accept the plaintiff’s suggestion but reiterates that its meritorious defense was filed, which is a part of the pleadings and was considered by the trial court at the time of hearing on the motion.

The plaintiff in this action complains that he should have had an opportunity to plead to or answer the petition at the time it was presented by the defendant.

There is nothing, as far as we can learn from this record, to show that he was denied this right to answer the petition, and there is nothing in the record to indicate that he opposed the petition as presented. There is no doubt that if the plaintiff had requested the right to answer and had filed his plea, which by the rules of court he is entitled to do, the record would show such pleading; or, if he had been denied that right an order would so indicate that denial upon the face of the record. However, it does not appear that there was any motion made such as would indicate that his rights had been impaired by a refusal of the court to act.

And then,again when we come to consider the defendant’s notice and petition that it presented to vacate and set aside the judgment that was entered in this action, this notice plainly indicates that the plaintiff and counsel for the defendant were present in open court after a hearing was had and he took advantage of the notice that was served upon him by the defendant and appeared in open court. But we find that while being present in court there was an order entered that the judgment that was entered against the defendant corporation on the 3rd day of March be vacated and set aside. The plaintiff remained silent and did not object, or make a motion that would have saved his record. Therefore, the court had jurisdiction and could act upon the facts alleged in the petition. Such failure on the part of the plaintiff justified the court to enter the order, such as was entered, and set aside the judgment that was complained of.

Under the circumstances in the record that we have here before us the court was fully justified in vacating and setting aside the judgment on April 29, 1941.

We have reserved for consideration the motion which was offered and presented to this court by the defendant to dismiss the appeal on the ground that there was no final order or judgment that was entered and which was subject to appeal.

The conclusion which we reach in this case is that the order entered by the court on April 29,1941, granting leave to the defendant to file its appearance and plea, is affirmed. Therefore it appears that on the filing of the defendant’s answer a hearing on the merits of the controversy between the parties was required, and that upon this question the court would have to pass and enter a final order upon the merits. The de- I fendant’s motion to dismiss would not justify our dis- , missing this appeal upon the suggestions offered in I support of the motion, and therefore leave to the defendant is denied to dismiss the appeal.

The order vacating the default judgment for the sum of $3,875 on March 3,1941 upon the petition of the defendants that was filed and presented to the court on April 29, 1941, is affirmed.

The order entered on April 29, 1941 is affirmed.

Kilby, J., concurs.

Mr. Presiding Justice Burke

dissenting: The judgment was entered on March 3, 1941 and the order vacating it was entered on April 29, 1941. Paragraph 7 of section 50 of the Civil Practice Act (par. 7, sec. 174, | ch. 110, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 104.050]) provides that “the court may in its discre- ) tion before final judgment, set aside any default, and may within thirty days after entry thereof set aside any judgment or decree upon good cause shown by affidavit upon such terms and conditions as shall be reasonable.” Section 72 of the Civil Practice Act (sec. 196, ch. 110, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 104.072]) provides that “the writ of error coram nobis is hereby abolished, and all errors in fact, committed in the proceedings of any court of record, and which by the common law, could have been corrected by such writ, may be corrected by the court in which the error was committed, upon motion in writing, made at any time within five years after the rendition of final judgment in the case upon reasonable notice. . . . ” In Frank v. Salomon, 376 Ill. 439, our Supreme Court held that as decrees in equity may be vacated by bills of review, the provision of section 72 of the Civil Practice Act for a motion to vacate a judgment at law is not applicable to chancery proceedings and cannot be relied on to vacate a foreclosure decree.

The judgment vacated in the instant case was a judgment at law. Defendant urges that the trial court had jurisdiction to vacate the judgment where an error of fact was committed, and cites Chapman v. North American Life Ins. Co., 292 Ill. 179; Nikola v. Campus Towers Apartment Bldg. Corp., 303 Ill. App. 516; Marabia v. Mary Thompson Hospital, 309 Ill. 147; Lynn v. Multhauf, 279 Ill. App. 210. Defendant cites the same cases in support of its assertion that the trial court had the right to grant relief upon motion in the cause rather than requiring the filing of a complaint praying the same relief. These cases are not applicable to the factual situation presented by the record before us. In the Nikola case the defendant moved to vacate the judgment on the ground that the summons was not served. The defendant supported its motion by several affidavits which clearly showed that the summons was not served. We pointed out that the approved procedure after term time to overcome a return showing service on the defendant, where no fraud is alleged, is to file a complaint in chancery. We cited cases which held that under the facts a court of chancery could give relief. We also pointed out that the plaintiff filed a motion to dismiss the petition but did not raise the point that relief should be sought by a complaint in chancery. We sustained the action of the trial court in vacating the judgment and stated that the circuit court had jurisdiction of the subject matter and of the parties at the time the motion was made, and that clearly the trial judge would have the right to grant relief if he were sitting as a chancellor and acting on the petition as a complaint in chancery. We held that in view of the fact that the motion to dismiss the petition did not raise the point that the relief should be sought by a complaint in chancery rather than by a petition in the same case, the court having jurisdiction over the subject matter and the parties at the time the motion was being considered, the action of the court in giving relief to the defendant was proper.

In the instant case the defendant was served with a summons. The point raised by the defendant does not go to the jurisdiction of the court. It raises the question as to whether the court committed error in entering judgment where the summons was not served at least 20 days prior to the second return date. Therefore, the defendant was and is urging that the judgment of March 3, 1941 was erroneously entered. The law is well settled in this State that a motion in the nature of a writ of error coram nobis cannot prevail unless it is to correct an error of fact. Section 72 of the Civil Practice Act plainly states that “all errors in fact committed in proceedings in any court of record, and which by the common law could have been corrected by said writ, may be corrected by the court in which the error was committed, upon motion in writing . . . In Chapman v. North American Life Ins. Co., 292 Ill. 179, the Supreme Court said (185):

“The error of fact alleged must not be one appearing on the face of the record or one contradicting the finding of the court. All such errors are treated as errors of the court, and the court cannot set aside a judgment entered by it for errors committed by it, after the term of court has ended. Such errors must be reviewed on writ of error proper or by appeal to an appellate or reviewing court.
“It is important in considering this question to keep in mind this proposition: that the trial court cannot review itself or its own judgment and correct the same, either as to any question of fact found or decided by the court or as to any question of law decided by it after the term of court had ended. At any time before the term has ended the court may review its judgment as to matters of fact or matters of law decided by it and correct its judgment, if erroneous.”

The date of service and the return dates mentioned in the summons were matters appearing on the face of the record, and if any error was committed in the rendition of the judgment of March 3, 1941, it was an error that the circuit court was without power to correct on April 29, 1941, but could have been corrected by a court of review on a proper appeal. The purpose of a motion in the nature of a writ of error coram nobis is to call the court’s attention to some important fact of which the court did not have knowledge at the time the judgment was rendered so as to give the court an opportunity to consider such fact. Where the court had the opportunity to consider the fact, then the remedy of the complaining party is to appeal. A motion in the nature of a writ of error coram nobis cannot be permitted to serve the office of an appeal. At the time the judgment was rendered (March 3, 1941) the trial judge had an opportunity to examine the summons and the return thereon and will be presumed to have done so. Therefore, at the time judgment was entered the trial judge knew that the summons was served less than 20 days before the return day. If there was any error in entering the judgment, the defendant had the right to call such error to the attention of the court within 30 days. After 30 days the defendant could . seek to overcome any error by appeal.

The judgment was not entered until March 3, 1941 and the defendant did not petition to vacate until April 29, 1941. Defendant knew on February 1, 1941 that it was being sued and that if it did not appear judgment would be entered. Yet, it waited until April 29, -1941 before filing a petition to vacate the judgment entered March 3, 1941. The petition does not make any showing of diligence. In my opinion the court was in error in vacating the judgment.

I agree that the motion to dismiss the appeal should be denied under the authority of Central Bond & Mortgage Co. v. Roeser, 323 Ill. 90. Our courts regard a ruling on a motion in the nature of a writ of error coram nobis as a final judgment in that proceeding and therefore appealable.


author: Mr. Justice Hebel

text:
    Wilhelmina Nordhaus, Appellee, v. Joseph A. Marek and Henry Newman, Appellants.
    Gen. No. 42,386.

      Opinion filed January 6, 1943.
    Ekern, Meyer & Matthias and Wolfe, Keane & Gomber, all of Chicago, and Sears, O’Brien & Streit, of Aurora, for appellants; Donald L. Thompson, of Chicago, Barnabas F. Sears, of Aurora, and William G. Chorn and Thomas E. Keane, both of Chicago, of counsel.
    Hirsch E. Soble, of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

The petitioners and defendants, Joseph A. Marek and Henry Newman, filed a petition for leave to appeal from the order of the circuit court of Cook county granting plaintiff a new trial, which order was entered by said court on June 12, 1942.

The action was brought in the circuit court of Cook county by plaintiff Wilhelmina Nordhaus as mother of Charles Nordhaus, against defendants, petitioners, Joseph A. Marek and Henry Newman, to recover damages to her means of support on account of the death of the said Charles Nordhaus, pursuant to the statute commonly known as the Dram Shop Act (Ill. Rev. Stat. 1941, ch. 43, par. 135 [Jones Ill. Stats. Ann. 68.042]). In this proceeding, the plaintiff’s amended complaint consists of one count and avers that on February 7,' 1941 defendant Marek owned and operated a cocktail lounge and engaged in the business of selling at retail alcoholic liquors at 1059 N. Pulaski Road in the City of Chicago, and that on that date one Jean Wilkins was employed by the defendant to assist him in the operation of said business; that the defendant Henry Newman was the owner of the said building and knew that alcoholic liquors were being sold therein and had leased the premises to the defendant Marek for such purpose; that on said date Marek, acting through his employee Wilkins, sold in said premises to one Charles Nordhaus, then 18 years old, and to several companions of the said Nordhaus, alcoholic liquors which caused the intoxication, in whole or in part, of the said Charles Nordhaus; that in consequence of said intoxication the said Nordhaus, early in the morning of February 8, 1941, drove a certain automobile into a private garage in Chicago where said automobile was regularly stored or kept, and omitted to shut off the ignition of said automobile, and in consequence of his said intoxication and as a result thereof died of carbon monoxide poisoning from the effects of the carbon monoxide gas that emanated from said automobile.

It is further averred in the amended complaint that Nordhaus was the son of the plaintiff and that Ms father was dead and had been for some time prior thereto; that said Nordhaus, prior to his death, was earning $17 per week, which he contributed to the maintenance and support of the plaintiff, and that by reason of his death and in consequence of his intoxication, plaintiff has been and is injured in her means of support and lias sustained damages in the amount of $50,000 and is entitled to maintain this action pursuant to the applicable section of the Dram Shop Act.

The defendants answered severally. Newman admitted ownership of the premises and operation of a dram shop by Marek through his agent or servant, Wilkins. Marek admitted operation of the business through his employee Wilkins, but both defendants specifically denied all of the other allegations of said amended complaint, including the sale to Nordhaus, his subsequent intoxication and death as averred in said amended complaint.

It appears from the facts that on the early morning of February 8, 1941, the 18-year-old son of the plaintiff, Charles Nordhaus, came to his death as the result of carbon monoxide gas poisoning in a garage at the rear of his home at 929 1SÍ. Keystone Ave., Chicago, Illinois. The exact time that the deceased died is not known, but he was last seen alive by the witness Norman Van De Car shortly after 2:00 a. m. February 8, 1941, when the latter saw him drive a car, a 1938 Packard eight coupe owned by his sister, into the alley at the rear of the Nordhaus home. The body of the deceased was discovered by the plaintiff at 10:00 a. m. February 8,1941. The car had been backed into the garage by him and its front was facing the front of the garage, a customary procedure. The deceased was lying in the front seat, the head pointing toward the right door of the car and the feet extending out the left door which was open. Thereafter the body was taken to a mortuary where an autopsy was performed by the coroner’s physician. A specimen of blood was taken and delivered to the coroner’s chemist where it was analyzed by George Stoe'cker, chemist, on February 10, 1941. The chemical analysis showed 0.12 per cent grain alcohol by weight and 80 per cent saturation of carbon monoxide gas. The immediate death of Charles Nordhaus was caused by carbon monoxide poisoning.

The garage in question is located in the rear of the Nordhaus home and entrance thereto is obtained, through a small service door near the northwest corner and large double doors on the east opening on to the alley. The alley is 16 feet wide, runs north and south and is constructed of concrete. The garage stores two cars and is approximately 20 feet square. The car entrances thereto are separated by a wood post and each entrance has double doors four feet wide. When the car was out of the garage the doors were kept closed and locked, and when the car was backed into 'the garage from the alley, the deceased was required to walk down two steps and along a cement walk to other steps leading to a small platform and the service door. Footprints in the snow leading into the service door were discovered by the plaintiff. It appears from the evidence that it was easier to back the car into the garage and the car was usually driven therein in that manner. The deceased had often driven the car and was considered a good driver.

The car was equipped with a heater and a radio which was in good working condition. When the body was discovered the ignition to the car was turned on, the gas tank was dry and the battery was dead. Vomitus was found on the running board of the car, on the floor of the car,'on the floor of the garage and outside of the garage off the apron in the alley.

Symptoms of carbon monoxide poisoning are headache, nausea, muscular weakness and violent vomiting. A person may die in three minutes from carbon monoxide poisoning; and, under the facts in this case, considering the size of the garage and the type of car, death would result in less than one-half hour. Death ensues from carbon monoxide poisoning where the saturation of carbon monoxide in the blood exceeds .55 per cent. The air of the garage was contaminated to the extent of - about 7 per cent by the carbon monoxide thrown off by the exhaust of the automobile.

After the car was backed into the garage the doors were closed or almost completely closed, but not locked. The night of February 7th and the morning of February 8, 1941 was cold; there was snow on the ground, and the streets were slippery.

On February 7,1941 the deceased left home alone at about 7:30 p. m. in this automobile and was in the company of Robert McNeilly between 12:00 midnight and 2:00 a. m. During part of that time, the deceased drove his car upon and along the slippery streets of Chicago in a careful manner. Between 12:00 midnight and 2:00 a. m. it is claimed the deceased had no alcoholic liquor to drink and did not appear to have been drinking; and it is claimed the deceased was jovial and happy and gave no appearance of having had anything to drink. The deceased and Robert McNeilly, while together, went in the car to a restaurant at Crawford avenue and Lake street where they had a hamburger, french fried potatoes and coffee. They remained in the restaurant from one and one-half to two hours, after which they drove to a gas station at Augusta Boulevard and Crawford avenue where they saw Norman Van De Car, another friend of the deceased who subsequently saw the deceased drive his car into the alley where his garage was located.

The foregoing facts are undisputed except that plaintiff claimed to have seen her son at home between 1:30 and 2:00 a. m. that morning.

The evidence as to the sale of liquor to Charles Nordhaus on the night of February 7, 1941, and the evidence as to whether or not Charles Nordhaus was intoxicated that evening is in conflict. It appears that the evidence of the plaintiff and her witnesses Joseph Schwieger, Emily Scarnato and William Davie tended to prove that Nordhaus was in the Marek cocktail lounge between 9:30 and 11:00 p. m. February 7, 1941 and drank some alcoholic liquor there with them, whereas the evidence of the defendants’ witnesses' William G-anly, Ellen Ballinger, Dale Ballinger and Jean Wilkins tended to prove that Charles Nordhaus and his friends were not in the tavern at all that night. These witnesses for the defendants were corroborated very materially by defendants’ witnesses James B arrota, Sid Sipin and Mariano DeGuzman who were members of an orchestra that supplied Hawaiian music at the tavern between the hours of 9:30 p. m. Friday, February 7th and 2:00 a. m. Saturday. This evidence concerning the orchestra music was important inasmuch as plaintiff’s witnesses Joseph Schwieger, Emily Scarnato and William Davie testified that they danced by music from a juke box and that no Hawaiian orchestra played in the tavern while they were there.

On the question of intoxication of the deceased, the plaintiff’s witness Joseph Schwieger testified that Charles Nordhaus was not intoxicated and neither Emily Scarnato nor William Davie gave an opinion on this question. The plaintiff’s witness, Dr. S. S. Snider, testified in response to a hypothetical question that it was his opinion that 0.12 per cent of alcohol by weight in the blood would cause intoxication, but this doctor gave no reason for his opinion, whereas defendants’ witnesses, Dr. William D. McNally, a toxicologist who had had years of experience in study and practice in this field, and Dr. George Bukstinat, a pathologist, testified that it was their opinion that 0.12 per cent alcohol by weight in the blood would not cause intoxication. The only lay witness who testified that the deceased was intoxicated was the plaintiff, mother of the deceased. She claimed to have been standing on the sidewalk in front of the tavern when the deceased came out of the door at 11:00 p. m. and then observed his condition, but none of the plaintiff’s witnesses saw the plaintiff there, and plaintiff’s witnesses William Davie and Joseph Schwieger testified that all of the boys left the tavern at the same time together. The plaintiff testified that she talked to her son, and further testified that she saw her son at home between 1:30 and 2:00 a. m. It is contended that this testimony conflicts with that of the disinterested witness, Bobert McNeilly, who was in company with the deceased between midnight and 2:00 a. m.

It is contended by the defendants that the trial court erred in granting plaintiff’s motion for a new trial and erred in not entering judgment upon the verdict, and they contend that while the motion for a new trial was addressed to the sound judgment of the trial court it has been said that no reversal will lie except in the case of clear abuse of discretion, which must be affirmatively shown, yet where the motion for a new trial is granted on alleged errors of law then only legal, as distinguished from discretionary, questions are involved and the Appellate Court should grant leave to appeal as a matter of right to determine whether the trial court erred in granting a new trial on such legal grounds.

It appears from the trial court’s opinion that he refused to grant a new trial on the ground that the verdict was against the manifest weight of the evidence, recognizing that it was a jury question to determine on which side lay the truth. The opinion of' the court may be searched in vain to discover where any discretion was being exercised by him one way or the other, and it is urged that the case presented to the court purely legal grounds, namely, whether error had been committed in the presence of the Juror Newton upon the jury when her husband had been a reporter for a brief period during the trial, which fact was known to plaintiff’s counsel throughout the trial, and alleged errors in refusing one of plaintiff’s instructions and giving one of defendants’, and that on these grounds the court granted plaintiff a new trial.

Defendants urge, however, in support of their petition for leave to appeal from the order of the trial court, that the alleged grounds raised pure questions of law; that a question of law cannot be said to call for an exercise of discretion, and that the Appellate Court should grant leave to appeal to determine whether the trial court erred in granting a new trial on such legal grounds, and cite in support of this theory the case of Adamsen v. Magnelia, 280 Ill. App. 418.

While it is true the trial judge is allowed a broad discretion in the granting of a new trial and that the motion is addressed to the sound judgment of the court, his action thereon will not be reversed except in case of clear abuse of such discretion, which must be affirmatively shown. (Couch v. Southern Ry. Co., 294 Ill. App. 490, 492.) As to the rule that has been contended for where a new trial is granted for supposed errors of law and not based on discretionary grounds, one of the cases that has been called to our attention is the case of Wettaw v. Retail Hardware Mut. Fire Ins. Co., 285 Ill. App. 394, where the fourth district Appellate Court in rendering an opinion granted leave to appeal from an order of this kind and said: “Of course where a question is reasonably presented as to whether the court erred as a matter of law in so ruling, the right to review cannot be denied,” citing the case of Adamsen v. Magnelia, 280 Ill. App. 418, and Randall v. Randall, 281 Ill. App. 169, which are cases decided by the Appellate Court of the second district. In the Randall case, Mr. Justice Dove said:

“The rule that the granting of a new trial is within the trial court’s discretion, which will not be disturbed unless abused, applies only when the discretion is exercised on the facts, and the correctness of a ruling on a question of law will be determined on appeal, independently of the judgment of the trial court. 4 C. J. 833.”

However, it is suggested by the defendants that only by the granting of appeals as a matter of course where only reasonable legal questions arise on the record, will this court give effect to the manifest provision of the statute which was designed to promote justice and to prevent a verdict warranted by the record and justified by the evidence, from being set aside and lost to the party who was fairly entitled thereto, such litigant being forced to undergo the hazard of another trial with its further incidence of delay and expense (Lehman v. Hannah, 307 Ill. App. 244; Wettaw v. Retail Hardware Mut. Fire Ins. Co., 285 Ill. App. 394).

There is a question whether there was any irregularity in the presence of Juror Newton upon the jury, and whether it is waived by the plaintiff in the proceeding in the trial court after full knowledge of such irregularity. This matter as it is suggested arose upon the adjournment of court after the noon recess on the second day of the trial, by counsel for plaintiff inquiring of the reporter if his wife was one of the jurors in the case. At that time the court did not deem the matter of consequence, and inquired if it made any difference. Mr. Thompson, counsel for the defendants, immediately offered to get another reporter, and stated that he knew nothing about it, that Mr. Walsh handled , the reporting in the case. Mr. Thompson agreed with the court that it should be avoided, and then followed an inquiry by Mr. Soble of the reporter, bringing out that he was the husband of one of the jurors and the , reporter for the defendants. This was in the presence but out of the hearing of the jury. Thereupon court and counsel retired to the chambers. In the chambers it developed that Mr. Newton was a free-lance reporter; that he was called by Mr. Walsh; that he had. reported for him in another trial on the day before for the first time in six weeks. Thereupon Mr. Thompson stated he thought somebody else from Mr. Walsh’s office should come over right away, and consented to a mistrial being declared if plaintiff’s counsel desired one. Further inquiry of the reporter disclosed that he did not know his wife was on the jury, that it was just nothing more than a coincidence. Mr. Soble stated that he had no doubt that it was a coincidence, agreed with Mr. Thompson that he didn’t know when they changed reporters and stated that it was quite embarrassing. The reporter stated that it was quite embarrassing for him, too. The court posed a question as to what would be the effect on Mrs. Newton if she learned that there was objection to Mr. Newton participating as a reporter. All parties discussed this and Mr. Newton expressed regret that he had not come over that morning and thereby avoided this trouble. The court suggested that counsel agree to excuse Mrs. Newton from jury service and try the case with eleven jurors. Mr. Thompson expressed disagreement with this suggestion and stated that plaintiff’s counsel could do whatever he wanted to do here, but that he wanted twelve jurors in the case and didn’t think the matter prejudicial. Mr. Newton related a similar instance of a friend of his on a jury in another case at which he had been a reporter a couple of years before, as a result of which another reporter was procured.

The record shows that the reporter Newton had not reported any of the proceedings but that the matter was called to the court’s attention by Mr. Soble just as the jury had stepped in the box with no evidence taken. Mr. Thompson, counsel for defendants, again stated that under the circumstances he thought they ought to get another reporter. The court stated that the juror observed her husband and tried to attract his attention but that he had his back turned to her. Thereupon, the court asked Mr. Soble, plaintiff’s counsel, what he wanted to do about it. He stated to the court that he didn’t know what to say; that the litigation had been very expensive; that he thought the best way out would have been to excuse the juror by agreement, but that he realized that he couldn’t compel counsel to do this. He then stated that he “must take the chance that Mrs. Newton will do the fair and honorable thing and proceed with this trial.” Mr. Thompson then stated that the reason he didn’t want to discharge Mrs. Newton was the possible effect it might have on the other eleven jurors, that plaintiff’s counsel should take advantage of his record here at the time, and that if he didn’t, he waived the point; that he, Mr. Thompson, wanted the case tried by a fair and impartial jury. The court again suggested that Mrs. Newton be excused and Mr. Thompson expressed his apprehension, disclaiming any responsibility for Mr. Newton being present. Thereupon court and counsel left chambers and the trial proceeded for three and one-half days before this jury. Unfortunately, the record doesn’t show the fact that Mr. Newton was thereupon excused as a reporter and did not report any part of the trial after the discussion off the record with the court.

It is to be noted that no affidavits were filed in support of the motion for a new trial indicating that plaintiff was prejudiced in any way by this occurrence or that Juror Newton was in any way affected by it or in any manner endeavoring to influence the other eleven jurors. The error, as assigned in the motion for a new trial, requests the court to make an inquiry to determine whether the occurrence was inadvertent or intentional and that if it should appear that the occurrence was intentional, to grant a new trial. However, it appears, and it is suggested that this is a novel way of raising the question; and defendants submit that the question was raised by the assigmnent for the reason that it is not proper for a court to make an investigation of a case, or any matter pertaining e thereto, outside of the presence of counsel for both parties, and for the further reason that no affidavits were filed in support of the point indicating that any prejudice ensued.

The trial court, in his opinion, granting the motion for a new trial, drew inferences clearly not appearing from facts of record, namely, that the juror knew that the reporter was reporting the case for the defendants, that someone had suggested to Walsh to bring Newton in to report the case, and that outside influence or contamination of the whole jury resulted therefrom. Nowhere in this record, by affidavit or otherwise, does it appear that Mrs. Newton knew for whom her husband was reporting or that Mr. Walsh procured Newton to report the case for the defendants because of the presence of his wife on the jury.

The suggestion is offered that a party who assumes the burden of alleging prejudice should bring before the court by affidavit or otherwise facts to sustain his position.

The right of parties litigant to a fair and impartial trial by a fair and impartial jury is entirely lost if the verdict can be set aside on matters which do not appear of record to be true or which lie in the imagination or apprehension of court or counsel.

The plaintiff contended that the trial court erred in giving certain instructions at defendants’ request and in refusing to give certain instructions at plaintiff’s request, and called attention to instruction number 20 which was given at defendants ’ request, which plaintiff alleges was bad, and being a mandatory instruction that this alone was sufficient to warrant a new trial. The instruction that is complained of defines “proximate cause” as “that cause which in a natural and continuous sequence, unbroken by any other cause, produced the event,” and plaintiff alleges thereby committed the error which plaintiff feared. It is further suggested by the plaintiff that as it is undisputed that the direct cause of decedent’s death was carbon monoxide poisoning, that cause came squarely within the meaning of “any other cause,” and that this instruction therefore stated very plainly to the jury that before the intoxication could be said to be the proximate cause of the death, it had to be “unbroken by any other cause,” vis., carbon monoxide poisoning; that it did not say “a new and independent” cause, or an “intervening efficient” cause, but “any other” cause, and that under this instruction plaintiff could not possibly secure a verdict.

The defendants, however, in answer to the contention of the plaintiff contend that there was no error committed in giving defendants’ instruction number 20; that although plaintiff refers to instruction number 20 as a mandatory instruction this is hardly an accurate statement, as the portion of it objected to is in no sense mandatory and is ordinarily given as a separate instruction defining proximate cause. It is urged that no attempt is made by plaintiff to answer the case of Fippinger v. Glos, 190 Ill. App. 238, 239, to the effect that the jury would be more likely to understand the words “proximate cause” than they would the words “efficient cause,” and further replying to plaintiff’s contention defendants point to the fact that plaintiff suggests that the instruction should have contained the words “intervening efficient cause.” Also defendants point out that no reply is made to Berry v. Breed, 311 Ill. App. 469, 480, to the effect that the words “so that” were used “as the equivalent of proximate cause and any layman would so understand them.” There is a suggestion that is offered that the two cases quoted answer plaintiff’s argument that “any other cause” would preclude plaintiff from recovering a verdict, particularly when plaintiff’s instruction number 12 is considered, which specifically advised the jury that if they believed from the evidence that ‘ ‘ in consequence of said intoxication . . . deceased drove the automobile . . . into the garage and omitted to shut off the ignition . . . and that by reason of such omission . . . the deceased died of carbon monoxide poisoning, then you may find that the said intoxication proximately caused the death of • said deceased.”

Defendants further aver in answer to plaintiff’s statement that defendant claimed that any error in number 20 was obviated by number 12, that the defendants did not concede that number 20 was erroneous, and that instead they cited Fippinger v. Glos, 190 Ill. App. 238, 239, and Berry v. Breed, 311 Ill. App. 469, to support the premise that the instruction was not error, as well as Reivitz v. Chicago Rapid Transit Co., 327 Ill. 207, 213, and Bobalek v. Atlass, 315 Ill. App. 514, 525, 526, which authorities hold that the test is how the average juror would understand the instruction; and that it is to be' observed that in the cases cited by plaintiff the instructions were clearly and palpably erroneous.

Plaintiff urges that the case of Hanson v. Trust Co. of Chicago, 380 Ill. 194, has a bearing on the question involving defendants’ instruction number 20. In the opinion of the court in the Hanson case it is said:

“When a peremptory instruction omits a fact or circumstance essential to recovery, the law is that such error in the instruction cannot be cured by any other instruction in the series of instructions.”

As we have indicated in this opinion, it does not appear that the instruction number 20 does omit a fact or circumstance essential to recovery. It seems apparent from the Hanson authority that the plaintiff in the present case received from the jury more liberal consideration than the law allows, and, further, that the plaintiff’s given instruction number 12 was broad ini that it instructs the jury “if you believe from the evidence,” whereas it should have been “if you believe from a preponderance of the evidence.” From the Hanson case we do not reach the conclusion that instruction number 20 is subject to the criticism that would make this instruction obnoxious to the extent that it was erroneous, or that the court erred in giving the instruction as it is in this record.

Plaintiff argues that the giving of instructions number 19 and number 30 in addition to number 20 was error because it placed undue emphasis on the propositions which plaintiff was required to prove. In reply, Rasmussen v. Wiley, 312 Ill. App. 404, 407 and City of Lake Forest v. Janowitz, 295 Ill. App. 289, 295, were cited by defendants.

When we come to consider the question as to the undue emphasis which plaintiff alleged was placed upon the propositions she was required to prove, we do not find that the instructions indicated undue emphasis as to the propositions which plaintiff was required to prove to comply with the rule as to the giving of instructions that should aid the jury in reaching a conclusion that would justify the verdict.

There were other objections offered to the instructions that were given by the court and we have carefully considered them, bnt we do not find any reason advanced that would justify our reaching the conclusion that the court was in error and therefore on account of such error that the court was justified in granting the plaintiff a new trial.

There is also complaint made of instruction number 3, and error is assigned on the refusal to give this instruction, plaintiff pointing out that this instruction was included in the instructions given in the case of North Chicago St. R. Co. v. Wellner, 206 Ill. 272. However, defendant points out that the only objection urged to the instruction in that case was to the use of the words “their apparent intelligence or lack of intelligence,” and says the case cited is no precedent in this case, as the question of ignoring the greater number of witnesses was not raised in the cited case, that it should have been incorporated, and the instruction number 3 not being complete the court did not err in refusing to give the instruction.

The plaintiff further objects to certain hypothetical questions. The ultimate fact which the jury had to decide was whether intoxication was the effective cause of death. On this point defendant cites the case of Baker & Reddick v. Summers, 201 Ill. 52. The questions objected to referred only to the question of the decedent’s intoxication. It is elemental that any witness can express an opinion as to whether a person was or was not intoxicated. Obviously if a lay witness can testify as to whether a person was or was not intoxicated, testimony thereof by an expert upon an assumed state of facts does not invade the province of the jury, which is the objection made to the question by plaintiff. Plaintiff has cited the case of Fellows-Kimbrough v. Chicago City Ry. Co., 272 Ill. 71, and Phillips v. Brown, 285 Ill. App. 443, but in those cases the question called for a conclusion of ultimate fact, and obviously that is not the situation here. No question was asked the witness as to whether the deceased died as the result of being intoxicated, and 'the question referred only to whether the deceased was or was not intoxicated, leaving to the jury the ultimate fact as to whether his death resulted therefrom.

A further question that is complained of is with reference to the refusal to permit Dr. McNally’s book to go to the jury, and it appears from the record that the jury heard the so-called impeaching portions of the book in question, and it would be no different from permitting the jury to take with them into the jury room a signed statement which impeached a witness. Under the statute, as it is contended for, such a document is not a paper read in evidence which may be carried from the bar by the jury. In support of this position defendant cites Nelson v. Northwestern El. R. Co., 170 Ill. App. 119 and Johnson v. N. K. Fairbank Co., 156 Ill. App. 381.

So that after having considered all the questions that we believe pertinent to be considered, and having reached the conclusion as we have pointed out, we are of the opinion that the order granting plaintiff a new trial be reversed, and the cause remanded with directions that the court overrule said motion for new trial and enter judgment on the verdict.

Reversed and remanded with directions.

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


author: Mr. Justice Kiley

text:
    Mary Griffin, Appellant, v. City of Chicago et al., Chicago Park District, Appellee.
    Gen. No. 41,928.
    Opinion filed January 6, 1943.
    Rehearing denied January 20, 1943.
    Henry Mitgang, of Chicago, for appellant; Arthur A. Wolfinsohn, of Chicago, of counsel.
    John O. Rees, of Chicago, for appellee; Philip A. Lozowick and Martin G. Loeff, both of Chicago, of counsel.
    Richard J. Finn and Peter Fitzpatrick, both of Chicago, amicus curiae.

   Mr. Justice Kiley

delivered the opinion of the court.

This is an appeal from a judgment for defendant in a personal injury action, notwithstanding a verdict for plaintiff of $1,500; The City was dismissed as defendant because the place of the accident is under the jurisdiction and control of the Park District. It is stipulated that plaintiff was injured at night on Ashland Boulevard just south of Madison street in Chicago, when her foot was caught in a broken sidewalk. The question is whether the Park District, as a matter of law, is liable for negligence of its employees in failing to keep the sidewalk in repair.

The Supreme Court in LePitre v. Chicago Park, District, 374 Ill. 184, decided that maintenance of park boulevards is a governmental function, for negligent performance of which no liability attaches to the District. Ashland Boulevard is part-of the park system, its sidewalks are part of the boulevard (City of Chicago v. O’Brien, 111 Ill. 532), and it follows, their maintenance is a governmental function, for the negligent performance of which the District is not liable. This conclusion admits difficulty, for had plaintiff suffered a like injury just around the corner on Madison street, she would have avoided the rule, but so would LePitre had he turned from the Outer Drive on to a City street and been injured there. The difference in the creation or organization of the District and its predecessors does not affect the rule. The people of Chicago accepted the State’s offer to delegate this governmental function and thereby accepted the prin- ' ciple that any damage from negligence in performance of the function is outweighed by the general good. We are bound to hold that Ashland Boulevard sidewalks are primarily for pedestrians walking from park to park in pursuit of health and recreation. To decide that maintenance of the boulevard is a govermnental function and . of its sidewalks a proprietary function would aggravate the difficulty.

Judgment of the superior court is, accordingly, affirmed.

Judgment affirmed.

Burke, P. J., and Hebel, J., concur.