text:
    Elio Ziraldo, Appellee, v. W. J. Lynch Company, Appellant.
    Gen. No. 37,903.
    Opinion filed February 19, 1936.
    Robertson, Crowe & Spence, of Chicago, for appellant; Eugene P. Kealy, of Chicago, of counsel.
    Cassels, Potter & Bentley, of Chicago, for appellee; Ralph F. Potter, Leslie H. Vogel and E. Douglas Schwantes, all of Chicago, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

This is an appeal by defendant from a judgment of the superior court of Cook county for $5,000, entered in a suit against defendant, in which it is claimed that plaintiff suffered severe injuries as a result of defendant’s negligence. The accident upon which the claim is based occurred in the City of St. Louis, Missouri, on October 23, 1929. The trial was before a jury, which returned a verdict in favor of plaintiff for the amount mentioned.

Defendant, as general contractor, was engaged in the construction of a hospital building in the City of St. Louis, to be known as the DePaul Hospital, and at the time of the accident, plaintiff was employed as a helper by the Art Mosaic & Tile Co., of Toledo, Ohio, a subcontractor, doing the mosaic and tile work in the building referred to.

The record indicates that at the time plaintiff suffered the injuries complained of, he and two other men were working together on the third floor of the building in question, under the direction of plaintiff’s immediate employer, in loading a heavy machine onto one of two elevators which had been built outside of, immediately adjacent to, and connected through a window, by an inclined runway, with the main structure of the building for the purpose of use in connection with the delivery of materials, and for other purposes in and about the construction of the building; that these two elevators ran in shafts, which were immediately adjacent to each other; that the loading operation in which the plaintiff was engaged was in connection with the elevator, which was then standing at the third floor of the building ; that there were gates at each elevator at each floor to prevent access, when closed, to either of the elevator shafts when the elevators were not at the floor at which they might be used; that the work in which plaintiff was engaged was in connection with the west of the two elevators; that the gate to the east elevator shaft was not then closed, and that this condition was obvious. It is further shown that while plaintiff was thus engaged with the other two men in the arduous task of hauling* up an inclined runway and loading this heavy machine upon the westerly of these two elevators, he inadvertently leaned towards and into the east of such shafts, because of the fact that the gate there was not closed so as to prevent him from so doing, and that while so engaged, the elevator in this shaft, without any notice or warning to plaintiff, suddenly descended, and that he was thereby struck and thrown into this elevator shaft and suffered the severe injuries of which he complains. At the close of plaintiff’s evidence, and at the close of all the evidence, defendant moved the court to direct the jury to find defendant not guilty.

There is no question raised as to the extent of plaintiff’s injuries, as to the amount of the verdict and judgment, nor as to how the accident occurred. It is insisted by the defendant, however, that no duty rested upon it to warn the plaintiff of the danger which was obvious to anyone who might observe, that plaintiff was guilty of contributory negligence, as a matter of law, and that defendant was guilty of no negligence in the premises.

In Lovenguth v. City of Bloomington, 71 Ill. 238, the plaintiff, 18 years of age, was employed in the shops of the Chicago and Alton Railroad, and in passing to and from his place of employment he was obliged to pass over a defective sidewalk, and in doing so, he stepped upon a loose board, fell and fractured a bone of his ankle. On a trial before a jury, a verdict of not guilty as to the City of Bloomington was returned. On appeal, the plaintiff assigned as error the order of the court overruling his motion for a new trial, and in giving to the jury certain instructions in behalf of the defendant. In its opinion, the court said:

“It appears that this injured party was familiar with this sidewalk and its defects. He knew it was dangerous. Another sidewalk, in good repair and safe, was provided by the city, and if he chose to pass over the dangerous walk, he should have done so in a careful and guarded manner; but this, it appears, he did not do, but in a hasty, reckless manner, went jumping from one board to another, until he fell, and received the injury.”

In Beidler v. Branshaw, 200 Ill. 425, the defendant Beidler owned a building in the downtown business portion of Chicago, five stories in height, with a basement which was occupied by tenants. At' the rear of the building was located an elevator shaft operated by Beidler for the use of his tenants. The elevator ran in a brick shaft in which there were six doors, one for each floor and one for the basement. The door at which plaintiff was injured opened and closed by sliding up and down in a recess in the wall. A lintel, or iron slab, extended into the elevator shaft about 8 inches, and on the inside of the elevator which passed this lintel there were no sides to the elevator, and as the car passed up and down in the shaft, the elevator came within 1% inches of this slab, or lintel, which extended into the elevator shaft. The accident, out of which the action grew, caused the death of the plaintiff’s intestate. In that case, he had been in the employ of one of the tenants of the owner of the building. Upon the day of the accident, the plaintiff’s intestate got upon the elevator with a truck on which was loaded a package of paper and paper boxes. The truck occupied a major portion of the area of the platform of the elevator. The plaintiff’s intestate occupied a position on the platform near the truck, and as the elevator proceeded upward, his heel was caught between the edge of the elevator and the iron slab, or lintel, described, and his foot was badly crushed. Blood poisoning followed amputation, from the effects of which plaintiff’s intestate died. On the trial before a jury, a verdict was returned in favor of plaintiff, on which judgment was entered, which judgment was affirmed by the Appellate Court and reversed by the Supreme Court. In its opinion the Supreme Court said that, in view of the fact that the plaintiff’s intestate was familiar with the physical surroundings in connection with the elevator because of his having frequently ridden upon such elevator, and that “although it is true that the question of contributory negligence is ordinarily a question for the jury, yet when there is no conflict in the evidence and the court can clearly see that the injury was the result of the negligence of the party injured, it should not hesitate to instruct the jury to return a verdict for the defendant. In Lovenguth v. City of Bloomington, 71 Ill. 238, it is said (p. 241): ‘A party has no right to knowingly expose himself to danger and then recover damages for an injury which he mig’ht have avoided by the use of reasonable precaution. ’ In Werk v. Illinois Steel Co., 154 Ill. 427, on page 432 the court says: ‘While questions of negligence or of contributory negligence are ordinarily questions of fact, to be passed upon by a jury, yet when the undisputed evidence is so conclusive that the court would be compelled to set aside a verdict in opposition to it, the court may withdraw the case from the consideration of the jury and direct a verdict. ’

“We are satisfied that the injury in this case was caused by the negligence of the deceased in standing so near the edge of the car that his heel ivas caught as the car passed the lintel in its ascent; that he knew the construction of the elevator shaft and that the car in its ascent passed within a short distance of the lintel, and that it was without rail or guard on that side; and that he thoughtlessly stood upon the car in such a position that his heel was caught between the car and the lintel as the car passed that point; and that his negligence was of such a character as to prevent a recovery, and that the trial court should have so instructed the jury.”

In Hearon v. Himmelberger-Harris on Lumber Co., 206 Mo. App. 463, the plaintiff was injured in connection with the operation of a revolving circular saw in the defendant’s saw mill. It was charged that plaintiff’s injury was due to the defendant’s negligence in respect to the defective condition of the saw, and appliances connected therewith, by reason of which the saw unexpectedly rebounded against the plaintiff’s hands while he was attempting to adjust a large board for sawing, to which defendant replied that the plaintiff was negligent in having his hand in line with the action of the saw. The case was tried before a jury, which returned a verdict in favor of plaintiff, upon which verdict the judgment' appealed from was entered. In reversing the judgment, the Missouri Court of Appeals said:

“A warning is never required from a master to a servant when the servant is apprised of the peril or where it is obvious and appreciated, and this because the law does not require a useless thing to be done. (See Herbert v. Mound City Boot & Shoe Co., 90 Mo. App. 305; Nugent v. Kauffman Milling Co., 131 Mo. 241, 33 S. W. 428; Mueller v. La Prelle Shoe Co., 109 Mo. App. 506, 84 S. W. 1010; Blair v. Heibel, 103 Mo. App. 621, 77 S. W. 1017.) . . . His charge of negligence is that he was in ignorance of this tendency, and that the defendant was negligent in failing to warn him concerning it. His own testimony disproves the charge upon which he attempts to fasten liability.” In that case plaintiff’s own testimony was to the effect that the tendency of the saw in question was to jump, which tendency he alleged caused the injury. It was shown that this condition was entirely familiar to him. In spite of such familiarity with the operation of' the saw, he continued in his work, and the court further there said:
“We must, therefore, hold that the failure to warn plaintiff that this saw had a tendency to rebound in its operation cannot be held as the negligent cause of this injury, because he already knew what he said the defendant should have warned him about. The saw was at all times before his eyes, and for a man shown to have had his experience in mills, and to have attained his age and understanding, it was certainly not incumbent upon defendant to warn him that if his hand came in contact with this saw it would injure him.” See also Herbert v. Mound City Boot & Shoe Co., 90 Mo. App. 305; and Hirsch v. Freund Bros. Bread Co., 150 Mo. App. 162.

In Butler v. Frazee, 211 U. S. 459, which came to the Court of Appeals of the District of Columbia on a writ of error to the Supreme Court of the district, the injuries complained of by the plaintiff were incurred in connection with a mangle in the defendant’s steam laundry. It was shown that the plaintiff was of mature years, was entirely familiar with the machine in question, and that the conditions surrounding it were perfectly obvious to any one. In reversing the judgment, the court said: ■

“The plaintiff was a person of mature years, intelligent and of adequate experience. She had worked for some months upon this particular machine and during- that time it was always in exactly the same condition in which it was upon the day of the injury. The elements out of which the danger arose were plainly visible to her. The employer had no duty, statutory or otherwise, to use a rail to guard against so obvious a danger as that arising out of two cylinders in contact with each other and seen to be revolving inwardly. Hickey v. Taafe, 105 N. Y. 26. . . . She must have understood that if her hand became inextricably entangled with the clothes, as seems . . . was the case here, it would be drawn between the cylinder and receive the injuries which unhappily occurred. We think it must be said, as a matter of law, that she voluntarily assumed the risk of the danger. Tuttle v. Detroit, etc., R. Co., 122 U. S. 189; Crowley v. Pacific Mills, 148 Mass. 228; Gleason v. New York & N. E. R. Co., 159 Mass. 68; Connolly v. Eldredge, 160 Mass. 566; Lemoine v. Aldrich, 177 Mass. 89; Burke v. Davis, 191 Mass. 20. ’ ’

In the instant case, from the undisputed testimony in the record, we can arrive at no other conclusion than that the plaintiff was guilty of contributory negligence when he placed himself in the position which he occupied when he received the injury complained of. It was perfectly obvious to him, as it would be to anyone, that the gate to this elevator shaft into which lie leaned was not in place, and that if he leaned into this shaft, which ivas entirely separate from the shaft in which the elevator was, upon which he was loading the machinery, he might be injured. We are of the opinion that the court was in error in refusing to instruct the jury to find the defendant not guilty. Therefore, the judgment is reversed.

Reversed.

Hebel, J., and Denis E. Sullivan, J., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Hall

license: Public Domain

text:
    Anthony Kunes, Appellee, v. Jose Garcia, Otherwise Called Joe Garcia, Appellant.
    Gen. No. 37,928.
    Opinion filed February 19, 1936.

      John A. Bloomingston, of Chicago, for appellant.
    H. H. Patterson, of Chicago, for appellee; Edmund C. Maurer, of Chicago, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

This is an appeal from a judgment of the superior court of Cook county in the sum of $45,000, entered in an action by plaintiff against defendant. The cause was tried before a jury. The action is based upon the charge that the plaintiff suffered personal injuries through the negligence and wilful and wanton conduct of the defendant. There are several counts in the declaration, in one of which there is a charge to the effect that “defendant, with great force and violence, wilfully and wantonly injured the plaintiff.”

On August 7, 1931, the date of the occurrence upon which the action is predicated, plaintiff was a highway police officer connected with the office of the sheriff of Cook county, and was then patroling a paved highway in Cook county known as Rand Road, which runs northwest and southeast, and intersects a paved road known as Golf Road, which runs east and west. At the point of intersection, Rand Road has four lanes, two for traffic running southeast and two for traffic running northwest, and at this point Golf Road is a two-lane highway running east and west, as stated. The accident and injury to plaintiff were caused by the collision between defendant’s automobile, which, shortly before the accident, had been proceeding southeast on the Rand Road, and plaintiff’s motorcycle, which was proceeding northwest on Rand Road. Near the point of intersection, as shown by a plat introduced in evidence, there is an apron, or widening of each of these roads, indicating that the width of Golf Road adjacent to this point is approximately 386 feet, and the width of Rand Road adjacent thereto is approximately the same. When defendant had reached a point near the center of the intersection of these two roads, he started to turn east into the Golf Road, and at the time of the collision, he had reached the westerly of the two northwesterly going lanes of Rand Road.

Plaintiff’s testimony is to the effect that shortly prior to the accident, he was riding northwesterly in the easterly, or outer, lane of the four-lane highway of Rand Road; that when he first saw the car with which he collided, it was proceeding* southeast at about 40 miles per hour, and was about a block away from the Golf Road, at which time plaintiff was about a block away from the point where the collision subsequently occurred; that at that time, plaintiff was traveling about 45 miles an hour, and that as he, plaintiff, slowed down, defendant’s car, coming south, pulled across the center of the intersection by making* a left turn; that defendant started to make the turn to the left about 30 feet north of the center of Golf Road, at which time the plaintiff was going* about 35 miles an hour, and that plaintiff then started to turn to the left, when defendant immediately swung* back to the right and that plaintiff then swung* over to the right, and that plaintiff’s motorcycle then struck the rear left wheel of defendant’s automobile; that as a result of the collision, plaintiff was thrown up in the air 8 or 10 feet; that he was thrown forward and along the Rand Road a distance of about 20 feet, and as a result thereof, he suffered the injuries of which he complains. He was shown a photograph of the point of the collision and the area surrounding* it, which shows two telegraph poles, and plaintiff testified that, he landed between these poles.

The record indicates that shortly prior to the accident, defendant had been playing* golf at a golf course about four miles northwest of the intersection of the two highways mentioned; that at about 8:30 in the evening of that day, he left the golf club in his car which he was driving, accompanied by a Mrs. Wintermeyer and her husband, John Wintermeyer, and that together with these persons, he drove southeast on the Rand Road to the point where the accident occurred ; that he reached the Golf Road at about 9 o’clock, and that as he was entering* the Golf Road, he started to make a left turn, and at that time, he was proceeding at a moderate rate of speed, and that plaintiff was then approaching defendant’s car, which was then in the west of the two north going lanes of the Rand Road, and that in order to avoid a head-on collision, defendant turned his car hack toward the right, and that the collision referred to occurred when plaintiff’s motorcycle was in the west of these two northbound roadways of Rand Road. The defendant testified that at this time, plaintiff was proceeding* at a rate of 60 or 70 miles an hour.

At the time of the accident, plaintiff, a police officer, was patrolling this highway, and in approaching* this intersection, it was his duty to do so with care and caution. Several witnesses testified as to the distance plaintiff’s motorcycle skidded after, and as a result of its collision, with the left rear wheel of defendant’s car. A woman riding in a car immediately following the defendant’s car, who witnessed the accident, and who was produced by plaintiff, testified that after the accident, the plaintiff and the motorcycle were lying at about the beginning of the north end of the apron on the east side of Rand Road. If this is true, this witness’s testimony indicates that plaintiff was thrown approximately 125 feet, as shown by plats introduced in evidence. Another woman produced by plaintiff as a witness testified that she was riding southeast along the Rand Road back of defendant’s car, and that as she approached Band Boad, she saw defendant start to make a left turn into Golf Road, and that suddenly she saw lights flash through the air, and saw an object hurtling through the air. She also testified that when the motorcycle stopped after the accident, it was about 300 feet north of the center of the intersection. Other witnesses placed the point where the motorcycle stopped after the collision at upwards of 400 feet from the intersection where the collision occurred.

Defendant testified that as he turned east into Golf Road, lie was going 8 to 10 miles an hour. Other than the testimony of the plaintiff and defendant, there is no positive testimony in the record as to the rate of speed at which defendant was going at the time he was making this left turn into Golf Road.

On the question as to the condition of light and darkness at the time of the accident, there is considerable contrariety of testimony. It is stated that the evening was dark and cloudy. One of plaintiff’s witnesses testified that she had been playing golf at the same club where the defendant had played, and that she left when it became so dark she could not see the golf balls. The whole record, however, indicates that it was dusk at the time the accident occurred.

At the close of plaintiff’s case, and at the close of all the evidence in the case, defendant moved that the court instruct the jury to find the defendant not guilty as to the charge of wilfulness and wantonness, as well as to the charges of negligence, which motions were denied. The cause was, therefore, submitted to the jury on the question of the wilful and wanton conduct of defendant, when there is no evidence in the record to support this charge.

In spite of any testimony of plaintiff and others as to the speed with which plaintiff approached the intersection in question, the fact remains that his collision with the left rear wheel of defendant’s car threw him into the air 8 or 10 feet, as he, himself, testified, and that the motorcycle was thrown a distance of from 125 to 300 feet, according to the testimony of disinterested witnesses produced by plaintiff. This testimony indicates that plaintiff, at the time in question, was proceeding at a high rate of speed. The undisputed testimony is to the effect that defendant in making this left turn into Golf Road, at no time before the accident, proceeded beyond the west of the northbound lanes of Rand Road, and that at that time, the lights on his car were turned on. Plaintiff was proceeding north in the east lane Of this northbound road, and apparently had before him the whole width of this east lane, together with the width of the apron adjacent thereto on the east, as he approached the intersection in question, in which to proceed. If he had been exercising ordinary care as he approached this intersection, these conditions gave him ample opportunity to avoid the collision.

It is our opinion that the court erred in allowing the wilful and wanton charge to go to the jury with no evidence to support it. Also, the fact remains that by the manifest weight of the evidence, plaintiff is not shown to have been free from contributory negligence. The judgment is, therefore, reversed and the cause is remanded.

Reversed and remanded.

Hebel, J., and Denis E. Sullivan, J., concur.


text:
    Railway Express Agency, Inc., Appellee, v. William M. Ryan, Appellant.
    Gen. No. 38,064.
    Opinion filed February 19, 1936.
    Rehearing denied March 5, 1936.
    Wendell H. Shanner, of Chicago, for appellant.
    Cutting, Moore & Sidley, of Chicago, for appellee; James F. Oates, Jr., and C. Daggett Harvey, both of Chicago, of counsel.
   Mr. Presiding Justice Hall

delivered the opinion of the court.

William E. Barker, an employee of the plaintiff, Railway Express Agency, Incorporated, sustained injuries as the result of falling into an elevator shaft in a building owned by the defendant, William M. Ryan. Under an award made under the provisions of the Workmen’s Compensation Act of the State of Illinois, plaintiff paid Barker as such employee, the sum of $3,000, and it is suing under section 29 of that act (Ill. State Bar Stats. 1935, ch. 48, ¶ 229), to recover the amount paid upon the theory that Barker suffered his injuries as a result of the negligence of the defendant Ryan. On the trial, the court submitted the cause to a jury, which returned a verdict in favor of plaintiff for $3,000, upon which verdict the judgment appealed from was entered. At the close of plaintiff’s case, and at the close of all the evidence, defendant moved that the court instruct the jury to find the defendant not guilty, which motions were denied.

It is charged in the petition filed in the cause that the defendant owned a building located at 1407-09-11 South Michigan avenue, Chicago, which was used for manufacturing, mercantile and business purposes; that the defendant operated, maintained and controlled an elevator in the building, which was used in common by defendant, his tenants, lessees, their employees and servants, and by the public, in carrying goods and merchandise in and out of this building*, and from one part of the building to another; that immediately adjacent to the building was a public alley, and that there opened into this building a door, or opening, which provided means of egress and ingress to and from the building* into the alley; that the opening was protected by a door, or guard, which was operated by defendant, and which, if properly maintained, would prevent anyone from stepping into the elevator shaft at that point; that the bottom of the door, or opening, was a short distance above the level of the ground of the alley, and that there was constructed at the bottom of the door, or opening, a ledge, or sill, upon which persons stood, or used in delivering packages through the door and into the building, or elevator. It is further charged that Barker, who was a driver, employed by the plaintiff, while in the course of his employment, stopped, with his wagon, at this door, or opening, for the purpose of collecting certain goods, and that while he was so engaged, and while in the exercise of due and reasonable care for his safety, and because of defendant’s negligence in failing to safeguard this opening, he fell from this ledge into the elevator shaft, and was injured.

Barker’s testimony is to the effect that on March 31, 1930, at about 1:30 or 2 o’clock in the afternoon, he drove into the alley in the rear of plaintiff’s building; that the alley there runs north and south, and that he stopped on the east side of the building, which is on the east side of Michigan avenue; that he stopped the wagon right at the elevator entrance; that the elevator entrance comes up from the alley about as high as the witness’s chest, where there is a ledge about two feet wide, and that the tail gate of the wagon was then even with this ledge, and left only the space of the hub between the ledge and the remainder of the wheel of the wagon; that the back of his wagon was then at the south end of the elevator ledge; that after the horses were stopped, the witness got off the seat, and went into the rear of the wagon; that he was waiting in the wagon for a man named Budd, who worked with him, and who had gone up in the elevator to collect some packages; that he left the wagon, got off on the east side of it, for the reason that the west side of the wagon was up against the wall and that he then went back and climbed into the back end of the wagon; that Budd was the man in charge of the wagon; that they had previously called at this building every afternoon for about a year, and that he did not notice whether the elevator door was open or not at the time he climbed into the wagon; that he had seen the elevator door there every day when he called; that he had never seen the elevator door open when the elevator was not there; that he was waiting in the wagon in order to take packages from Budd when he returned; that the team moved an inch or two; that he went back to the end of the wagon and stepped over on to the ledge to see why the team had moved, and that as he turned around, he over-balanced and went down into the elevator shaft, and that he was then taken to St. Luke’s Hospital and to the operating room there.

On cross-examination, this witness testified that it was no part of his duty to enter the building, and that he had not done this prior to the occurrence, and had never before been in the building; that at the time of the accident, the wagon was parallel with the east wall of the building; that it was his job to be at the rear of the wagon when the packages were delivered by Budd; that when Budd went into the building from the wagon, he, the witness, got up on this ledge, or platform, and that he did not notice at that time, whether the door to the elevator was open or shut, even though he was looking at the place where Budd climbed up on this ledge; that he looked toward this ledge when he stepped on it. The witness was shown a copy of his deposition taken in the cause on March 31, 1934, and he admitted that he had then testified that the elevator went up and down with packages while he was there, and before the accident, and that packages were placed on this ledge; that he saw them placed there when they were brought down in the elevator, and that he took them off of this ledge, and that he did not remember whether the elevator was there at this time; that the time occupied in taking these packages from this ledge was about five minutes, and that at the time he took the last package from the ledge the elevator door was open. On further cross-examination, this witness testified that the wagon remained at the point in question for from 25 to 30 minutes prior to the accident, and that the witness did not look to see whether the elevator door was open during that time, and that if he had looked, he would have_ seen whether the door was open, and whether the elevator platform was flush with the loading platform. On his redirect examination by the attorney for the plaintiff, the witness testified that he over-balanced and fell the moment he stepped on this ledge, and that his purpose in stepping on the ledge was to see why the horses attached to the wagon had moved.

Frank Budd, a witness produced by plaintiff, testified to the effect that on the day in question he was employed by the plaintiff to pick-up and deliver express packages in the city of Chicago; that the driver of the wagon upon which he was working, was William Barker, and that Barker had worked with the witness for about a year; that all the driver had to do was to stay in the wagon and attend to the packages as they were taken from or placed in the wagon; that the witness had charge of the wagon, and that Barker did the driving; that he and Barker had stopped at this building many times before during* a period of 10' to 11 months; that when they stopped there at the time in question, the witness called for the elevator man, by calling, hammering* on the door, and ringing* a bell; that when' he called for the elevator man at the time in question, this man came with the elevator, and that the witness then went up on the elevator to the sixth floor; that he was in the building* about a half hour when he was informed that the driver had fallen into the elevator shaft; that the elevator operator did not close the elevator door when he and the witness got into the elevator before going up to the sixth floor; that the last time he saw Barker before the accident, Barker was sitting in the driver’s seat; that when he, the witness, stepped on the ledge, the door was open, and that he waited until the elevator came, and he stepped on it and was taken up into the building.

Claude Stewart, a witness produced by the defendant, testified, in substance, that he was the elevator man who operated the elevator in question on the day of the accident; that the elevator was in the basement and that he received a call and brought the elevator up to the first floor; that when he got there, he asked Budd, who was on the outside, to assist him in raising the elevator door, because the weight on it was broken and it had to be raised by hand; that he and Budd raised the elevator door, and that he and Budd got a stick and put under it to hold it up; that he and Budd then went up on the elevator to get some express matter ; that while they were raising the elevator door and placing a stick under it, Barker was present, standing-in the wagon, and that at that time the witness spoke to Barker; that after he left Budd at the sixth floor of the building, the elevator bell rang, and that he went down on the elevator with some parcels and that Barker was then in the alley, standing at the tail gate of the wagon, and that the door to the elevator was then open. This witness testified that he placed these parcels on the elevator ledge, or platform, and that Barker took the packages referred to and placed them in the wagon, and that then the witness took the elevator to the fourth floor.

It is the contention of the plaintiff that the defendant and his tenants invited the express company to defendant’s premises for the purpose of collecting express shipments from these tenants; that Barker, as an employee of the plaintiff was an invitee; that while he was engaged in the course of his employment, and in the furtherance of plaintiff’s business, he sustained the injuries complained of, as the result of the negligence of the defendant, and that it was defendant’s negligence, and not his, Barker’s, contributory negligence, which was the proximate cause of the injury.

In Casey v. Adams, 137 Ill. App. 404, suit was brought to recover damages for the death of plaintiff’s intestate, caused, as claimed, by the negligence of the defendant in keeping and maintaining a doorway open and unprotected, leading into an elevator shaft, through which the plaintiff’s intestate stepped and fell, thereby receiving the injuries from which he died.

The building in which the shaft was located, as was the case here, was used by tenants of the owner of a building. In that case, there was a freight elevator opening into the rear of the building, the same as in the case at bar. The decedent was a police officer, and was detailed to protect a wagon of the Wells Fargo Express Company, because of a teamsters ’ strike, and on the day and at the time of the accident, had been ordered to accompany a Wells Fargo two-horse covered wagon, the sides of which were closed, and the rear end of which was open. The wagon stopped at the building in question, and the wagon guard, to whom the decedent was detailed for protection, backed up to the doorway in the rear of a building to receive certain packages. As shown by the statement of the court in this case, when the wagon backed up to the building, it covered an entire doorway, and this obstruction excluded light from the doorway. When the wagon was backed up to the doorway, the decedent was in the wagon, and he was seen to step down from the wagon to the doorsill, and the next instant, he disappeared into the elevator shaft, thereby sustaining the injuries from which he died. The question arose there as to whether there was any implied or express invitation to the police officer to enter the building, and whether or not the decedent was guilty of contributory negligence. In that case, the verdict was for the defendant, upon which judgment was entered, and on appeal to this court by the plaintiff, the court affirmed the judgment of the trial court, and in its opinion, among other things, said:

“The testimony . . . shows that deceased stepped sideways and a little backward toward the door. Other evidence in the case shows that he knew nothing of the place, its conditions, construction or appliances. All the witnesses agree that it was dark and almost, if not quite, impossible to see anything inside the door. Upon these facts, about which there is no controversy, it is impossible to conclude that deceased was exercising due care. On the contrary, the natural and common sense conclusion is that he was negligent and that his negligence contributed to the injury. . . . The evidence, in the opinion of a majority of the court, conceding to be true all evidence which supports the view of plaintiff in error, and giving him the benefit of all legitimate inferences which are to be drawn therefrom in his favor, clearly shows that the deceased was guilty of contributory negligence as a matter of law. Jorgensen v. Johnson Chair Co., 169 Ill. 429; Browne v. Siegel Cooper & Co., 191 id. 226; Murray v. McLean, Admx., 57 Ill. 378; Piper v. New York Central, 156 N. Y. 224; Brugher v. Buchtenkirch, 167 N. Y. 153.”

In the case of Jorgensen v. Johnson Chair Co., supra, cited by this court with approval in Casey v. Adams, supra, a woman employed as a scrubwoman in a factory building, received injuries sustained by falling down an open elevator shaft in an unlighted shipping room adjoining one of the offices, in which she went, in disregard of her duties, to hunt for rags to dry the floors, when by her contract of employment, as shown by the evidence, the materials necessary for her work were to be furnished to her at her request by the watchman of the building. The trial court directed a verdict for defendant, and in affirming the judgment, this court said:

“As there was, under the evidence, no ground whatever upon which plaintiff could recover, the court properly instructed the jury to find a verdict for defendant.”

In Murray v. McLean, 57 Ill. 378, also cited in Casey v. Adams, supra, the deceased, a cooper, went to the defendant’s place of business to deliver kegs, and wandered some 65 or 70 feet back from the front of the building, where were situated the office and room where persons having business with the house transacted it, for assistance to help in unloading’, and there fell into an unguarded elevator shaft. The court held that no invitation was shown warranting* him in going to that part of the premises, and that therefore no recovery could be had.

In the case at bar, the evidence indicates that it was broad daylight at the time of the accident; also that it was no part of Barker’s duty to enter or be upon the premises of the defendant. It may also be noted that Barker was not even called upon to reply and did not reply to the testimony of the witness Stewart, to the effect that while Stewart and Budd were in the act of raising the elevator door and placing a stick under it to hold it open, Barker was present, standing in the wagon, and at that time, Stewart conversed with Barker. There is only the general statement of Barker that he did not notice whether the elevator door was open or not at the time he climbed into the wagon and up on the ledge. Barker’s testimony is to the effect that the ledge upon which he climbed was two feet wide. It clearly appears from the evidence that his purpose in climbing upon this ledge was to look at the team, and that he had no intention of entering the building. In view of the fact that Barker’s duties did not require him to enter this building, defendant, therefore, owed him no greater duty than he owed to any stranger who might have been walking along* or standing* on this ledge. We are of the opinion that the verdict is contrary to the manifest weight of the evidence. The judgment entered thereon is, therefore, reversed.

Reversed.

Hebel, J., and Denis E. Sullivan, J., concur.


author: Mr. Justice Hebel

text:
    Goldblatt Bros., Inc., Appellee, v. Hoefeld, Inc., Appellant.
    Gen. No. 37,986.
    Opinion filed February 19, 1936.
    Lederer, Livingston, Kahn & Adler, of Chicago, for appellant; Sigmund Livingston and Archie H. Siegel, of Chicago, of counsel.
    Silber, Isaacs, Clausen & Woley, of Chicago, for appellee.
   Mr. Justice Hebel

delivered the opinion of the court.

The appeal in this case is by the defendant from a judgment for the plaintiff for the recovery of possession of the property described in an action of forcible entry and detainer. This action was instituted in the municipal court of Chicago by the plaintiff against the defendant for the recovery of possession of premises located at 6254 South Halsted street, Chicago, Illinois. Upon a trial of the issues, the court, without a jury, found the defendant guilty of unlawfully withholding possession of the premises, the subject of this litigation, from the plaintiff, and entered judgment for the plaintiff and against the defendant.

The plaintiff offered evidence of title in order to establish its right to the possession of the described premises, the documents being described as follows:

“On December 28, 1885, Nicholas Kutten and Elizabeth Kutten conveyed in fee simple to William Bromstedt a tract of land 75 feet along the west side of Halsted Street, commencing at the northwest corner of Halsted and Sixty-third Streets, and 139 feet from the corner, west on Sixty-third Street.
‘ ‘ On February 17, 1886, Edward Dryer and Augusta Dryer conveyed in fee simple to William Bromstedt, 40.9 feet on Halsted Street, directly north of the property conveyed by the Kutten deed to Bromstedt.
“On May 1, 1909, William Bromstedt leased the entire tract (containing as a part the premises here involved) to Robert A. Schoenfeld for fifteen years, ending April 30th, 1924, with an option to Schoenfeld to extend the lease for an additional ten years.
“Schoenfeld exercised the option referred to in the lease from Bromstedt, the effect of the exercise of the option being to carry his tenancy to April 30th, 1934.
“On February 4, 1919, Robert A. Schoenfeld leased the property to Musser, Lorenz and Company, for a term beginning May 1, 1919, and terminating April 30, 1934.
“On March 6, 1922, Bromstedt, as lessor, entered into a lease with George Lenz, Christoph H. Dehning, and Peter W. Meyn, for a term of ninety-nine years, commencing May 1, 1934.
“On August 13, 1927, Musser, Lorenz and Company assigned their lease from Schoenfeld to Daniel H. Musser, Paul C. Lorenz, A. J. Korr, and Bertha Herman.
“On August 19, 1927, Daniel H. Musser, Paul C. Lorenz, A. J. Korr, and Bertha Herman leased the property to Albert Hoefeld, for a term commencing September 21, 1927, and expiring April 29, 1934.
“On November 8, 1927, a tri-partite agreement was entered into between George Lenz, Christoph H. Dehning, and Peter W. Meyn, as parties of the first part, the Chicago Title and Trust Company, as party part the second part, and Albert Hoefeld, as party of the third part. The agreement is set out in full at pages 15 to 26 of the abstract. Briefly summarized, it recited that Lenz, Dehning and Meyn were the owners of a ninety-nine year leasehold, beginning May 1, 1934, which Hoefeld agreed to purchase for $500,000.00, $125,000.00 down and the balance in installments, the last installment due April 30, 1934. Lenz, Dehning and Meyn assigned the leasehold to the Chicago Title and Trust Company, and the Chicago Title and Trust Company agreed upon the full and complete payment of the purchase price of $500,000.00 by Albert Hoefeld, to assign the leasehold estate to him. In the event of his failure to make the payments provided for in the agreement, the Chicago Title and Trust Company was to reassign the leasehold estate to Lenz, Dehning and Meyn. Time was expressly made of the essence of the agreement.
“On February 28, 1934, default having been made in payment of the installment due November 1, 1932, the Chicago Title and Trust Company, at the request of George Lenz, Christoph H. Dehning, and Peter W. Meyn, assigned, pursuant to the terms of the tripartite agreement hereinbefore referred to, the leasehold to the Sixty-third and Halsted Realty Company, an Illinois corporation, the assignee of George Lenz, Christoph H. Dehning and Peter W. Meyn,”

On April 29, 1934, Hoefeld, Inc. was in possession of the property involved as successor to the right to possession under the lease from Musser, Lorenz, Korr and Herman to Albert Hoefeld.

On May 1, 1934, the Sixty-third and Halsted Realty Company leased the property to Groldblatt Bros., Inc., for a term of five years, commencing May 1, 1934, with an option for extension for 94 years.

Evidence was offered on behalf of the defendant upon the issues in this case, that on April 24, 1934, Norman Hoefeld and Helen Pfaelzer, as assignees of Sadie Hoefeld, the widow of Albert Hoefeld, entered into a lease with Hoefeld, Inc., for a term beginning May 1, 1934, and ending April 30, 1935. The trial court sustained an objection to the offer of this lease, on the ground that tile interests of Albert Hoefeld and those claiming under him, under the agreement of November 8, 1927, was terminated by the reassignment of the 99-year leasehold, on February 28, 1934, by the Chicago Title and Trust Company to the Sixty-third and Halsted Realty Company, as assignee.

The rule of law is well established that the question of title is not involved in an action of forcible entry and detainer. In a proceeding of this kind the right of possession to the property only is involved. A landlord upon the termination of the tenancy has the right to maintain forcible entry and detainer against the tenant or any person in possession under him who may hold over. For that reason a grantee of a lessor by express statute may maintain a forcible entry and detainer in his own name. By this same right he may terminate a tenancy for nonpayment of rent, and upon termination may proceed against the person in possession for an unlawful detention of the premises. If the tenant holding over claims to have title to the property, he cannot be permitted to assert it in this form of action, but he must restore possession to the plaintiff, the tenant of the landlord, and place this tenant in status quo, and then in some proper proceeding assert his title. Thomasson v. Wilson, 146 Ill. 384.

It is proper to receive title documents offered in evidence by the plaintiff, not for the purpose of establishing title, but to show that the title was conveyed to the plaintiff by the grantor in possession. Muller v. Balke, 167 Ill. 150. But documents to show adverse title in the defendant in this form of action are not admissible in evidence. Slate v. Eisenmeyer, 94 Ill. 96.

In considering the facts, the defendant was in possession of the property in question after the expiration of a lease that expired on April 29, 1934. This lease under which the defendant occupied the premises was assigned to it by Albert Hoefeld, now deceased. The property was leased to Hoefeld by the grantors, Musser, Lorenz, Korr and Herman, for a term commencing September 21, 1927, and expiring April 29, 1934, and it was this assignment of the lease that conveyed the property here involved to Hoefeld, Inc., assignee.

It is not questioned that the Chicago Title and Trust Company was in possession of this property by the terms of the agreement dated November 8, 1927, and under its terms the right of possession was transferred by the Chicago Title and Trust Company, at the request of George Lenz, Christoph H. Dehning and Peter W. Meyn, to the Sixty-third and Halsted Realty Company, an Illinois corporation, the assignee of George Lenz, Christoph H. Dehning and Peter W. Meyn.

Thereafter the Sixty-third and Halsted Realty Company entered into a lease with the plaintiff in this action, as indicated in this opinion, and by this lease the right of possession was in the plaintiff, who was the proper party, as the grantee, to assert the right of possession, which from this record, the defendant was unlawfully withholding from the plaintiff.

The defendant contends that the Chicago Title and Trust Company, a party to the agreement dated November 8, 1927, was not empowered by this contract to assign the title; that by its terms this agreement was in effect an equitable mortgage; that the plaintiff in the instant case is without title, and cannot maintain this action. The fact is that the plaintiff is a lessee from the Sixty-third and Halsted Realty Company, and as tenant is a proper party to maintain this action of forcible entry and detainer against the defendant, who-is now in possession and who is holding over after the termination of its lease.

The defendant’s contention would require this court to consider the title and determine whether plaintiff’s title to the property is such that it could maintain the action now here on appeal. If the defendant desires to maintain an action so as to assert title to this property, it must first restore possession to the plaintiff, and thereby put the plaintiff in status quo, and then in some appropriate action assert its title.

Sec. 14 of ch. 80, Ill. State Bar Stats. 1935, ¶ 14, Landlord and Tenant, has a material bearing on the question involved in this litigation. This section is as follows:

“The grantees of any demised lands, tenements, rents or other hereditaments, or of the reversion thereof, the assignees of the lessor of any demise, and the heirs and personal representatives of the lessor, grantee or assignee, shall have the same remedies by entry (,) action or otherwise, for the non-performance of any agreement in the lease, or for the recovery of any rent, or for the doing of any waste or other cause of forfeiture, as their grantor or lessor might have had if such reversion had remained in such lessor or grantor. ’ ’

In construing this section of the statute, the Supreme Court in the case of Barnes v. Northern Trust Co., 169 Ill. 112, said:

“We are of the opinion that the enactment of said section 14 dispenses with the necessity of an attornment, and abrogates the rule announced in Fisher v. Deering, supra (60 Ill. 114). It was so held by the Appellate Court for the Third District in Howland v. White, 48 Ill. App. 236, where it was said: ‘All leases except leases at will may be assigned if there is*no restriction in the lease itself (12 Am. & Eng. Ency. of Law, 1029), and the assignee of a lease is granted, by said section 14 of Chapter 80 of the Revised Statutes, the same remedies by action or otherwise for nonperformance of any agreement in the lease for the recovery of rent or other causes of forfeiture, as the lessor might have had while the owner of the lease; and attornment must, we think, be hereafter deemed unnecessary to vest the assignee of the lease with the full rights of his assignor, the original lessor. ’

“In Thomasson v. Wilson, 146 Ill. 384, on the trial of an action of forcible entry and detainer before the court without a jury, the defendant submitted and asked the court to hold as the law of the case, certain propositions, which were refused; and the first of said refused propositions was as follows: ‘The plaintiff cannot, as the devisee or grantee of the lessor Annestine Laddness, maintain this action without showing an attornment from said lessee, Annestine Laddness, to said plaintiff. ’ In that case, in commenting upon this refused instruction, we said: ‘The court determined correctly in refusing to hold the first proposition submitted to be held as the law of the case, for the reason that the same right of entry, by action or otherwise, is given by the statute to the grantee of the lessor as the lessor might have had.’ ”

This section indicates clearly that the lessee, the plaintiff here, has the right to maintain this action of forcible entry and detainer against Hoefeld, Inc.

Other questions have been called to our attention, but in view of the conclusions reached by us it will not be necessary to consider them. We are of the opinion that the plaintiff is entitled to judgment for possession, and that the trial court did not err in entering the judgment.

Judgment affirmed.

Hall, P. J., and Denis E. Sullivan, J., concur.


text:
    The People of the State of Illinois ex rel. John S. Rusch, Defendant in Error, v. Ben E. Schwartz, Plaintiff in Error.
    Gen. No. 38,339.
    Opinion filed February 19, 1936.
    Rehearing denied March 5, 1936.
    Samuel J. Andalman, of Chicago, for plaintiff in error; Julius A. Barthoff, of Chicago, of counsel.
    Thomas J. Courtney, State’s Attorney, for defendant in error; John F. Cashen, Jr., of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This writ of error is issued upon the application of Ben E. Schwartz and is directed to the county court of Cook county for the purpose of reviewing an order of contempt, wherein Herman Brown, Thelma Goldman, Ben E. Schwartz and Harry Schwed, respondents in the proceeding, Avere adjudged guilty of contempt Avhile acting as judges and clerks of election at an election held on November 8, 1932, in the 13th precinct of the 39tli Ward of the City of Chicago, in knoAvingly, fraudulently and unlaAvfully making* a false canvass and return of the votes cast in said precinct at said election and being guilty of contempt, the court imposed a penalty of 60 days’ imprisonment in the county jail of Cook county, Illinois, for certain acts in violation of the election laAv, unless sooner discharged in due course of law.

This action is based upon the provisions of sec. 13 of the City Election Act, ch. 46, ¶ 267 of the Ill. State Bar Stats; 1935 ed., which provides: “And after confirmation and acceptance of such commission, such judges and clerks shall thereupon become officers of such court and shall be liable in a proceeding for contempt for any misbehavior in their office, to be tried in open court on oral testimony in a summary Avay, AAÚthout formal pleadings, but such trial or punishment for contempt of court shall not be any bar to any proceedings against such officers, criminally, for any violation of this act.”

The order of commitment is, in substance, as follows:

That a general election was held in the City of Chicago on November 8, 1932, at which election various candidates of different political parties were, voted upon for public office and various issues in the form of propositions Avere submitted to the voters for their approval; that at said general election in the 13th precinct of the 39th Ward, said respondents, Ben E. Schwartz, Herman Brown, Thelma Goldman, Olga Boyd and Harry Schwed and each of them served as judges and clerics of said election and each of them by virtue of his respective office as judge and clerk of said general election was an officer of the county court of Cook county in the State of Illinois.

That at and during said general election the said Ben E. Schwartz and the other officers above named, and each of them, as judges of said election, and Harry Schwed as a clerk of said election knowingly, fraudulently and unlawfully made a false canvass and return of the votes cast in said precinct at said election.

That the said respondents, Ben E. Schwartz, Herman Brown, Thelma Goldman, and Harry Schwed, and each of them, by reason of the foregoing, was and is guilty of misconduct and misbehavior as an officer of the county court of Cook county, State of Illinois. Olga Boyd, a clerk having been purged of any contempt, was discharged.

The proceeding by the court is a summary one and is for a direct contempt of these election officials for misbehavior in their office, which was tried in open court on oral testimony without formal pleadings. And upon the hearing of evidence, the court entered the order finding the defendants guilty of a contempt as officers of the county court of Cook county. The order of commitment was entered by the court after evidence was heard and the court found that the respondent, together with the other respondents, served as a judge and clerk at the election in question and as an officer of the county court of Cook county, and State of Illinois. The respondent as such officer of the court was found to have knowingly, fraudulently and unlawfully made a false canvass and return of the votes cast in the precinct of said election by the voters thereof.

In determining whether the respondent, together with the other officers, was guilty of misconduct, misbehavior or violation of the election law as an officer of the court, we find that the election law that controls the election in question provides under par. 336, ch. 46, Ill. State Bar Stats. 1935, Elections:

“Every judge of election, member of any board of canvassers, messenger, poll clerk or other officer authorized to take part in, or perform any duty in relation to, any canvass or official statement of the votes cast at any election in any precinct, or in any city, village or incorporated town, who shall wilfully make any false canvass of said votes ;
“Or shall make, sign, publish or deliver any false return of such election, or any false certificate or statement of the result of such election, knowing the same to be false ...
‘ ‘ Shall, on conviction thereof, be adjudged guilty of a felony, and shall be punished by imprisonment in the penitentiary for not less than five nor more than ten years.” So it would seem from this provision that these election officials as officers of the county court were found guilty of returning a false canvass of the votes cast in the precinct where they were officiating at the time in question.

The respondent, however, contends that in a proceeding for a direct contempt the law requires that the order of commitment shall set out all of the facts constituting the offense with sufficient particularity and certainty to justify the punishment. From the order in the instant case, it appears that a rule was entered against the respondent and oral answers were made to the rule by each of the respondents, and they being present in court and attended by counsel, the court heard evidence, and it is from the evidence, which the statute provides may be orally taken, that this respondent, together with others, was found guilty, and the statute providing that such misbehavior of the election officials is a direct contempt, the Supreme Court in the case of People v. White, 334 Ill. 465, said: “. . . the county court is given jurisdiction to supervise the honest conduct of elections, and judges and clerks who are appointed by that court are officers thereof. Their misconduct, therefore, is the misconduct of officers of the county court. The rule long established both at common law and in equity is, that the legislature may not restrict the jurisdiction of the court in contempt proceedings but the power to punish for contempt is inherent in the court. ’ ’ Citing State v. Froelich, 316 Ill. 77; People v. Panchire, 311 Ill. 622.

The contempt proceeding in this case was conducted in a summary manner, and the order was entered upon the evidence heard by the court. This evidence, however, was not preserved in any way in the record, so that we have but one duty to perform, and that is to presume that the court heard sufficient evidence to justify the order entered finding the respondent guilty and inflicting punishment. This court in passing upon this question in People ex rel. Jeske v. Burke, 247 Ill. App. 220, a somewhat similar case, held that the order was a proper one where evidence was heard in determining the guilt of the respondent for contempt and said:

“This matter comes to us on a record containing the pleadings and an order of the county court finding the plaintiff in error, defendant below, William Burke, guilty of contempt of court and ordering him committed to the custody of the sheriff. There is no bill of exceptions although it appears from the commitment order that evidence was heard at the hearing of the cause, and the order of the court appears to be based upon that testimony.
“It follows, necessarily, that while an order of court adjudging a defendant guilty should be carefully scanned for the purpose of finding that the court had jurisdiction, and that there were allegations in the order, sufficiently clear upon which to predicate a finding’ of guilty; nevertheless, it is also true that this court will presume that the evidence heard was sufficient to warrant the findings contained in the order of commitment. ’ ’

From an examination of this record, we are unable to find that there were any objections made by this respondent at any time which would justify the court in going into the various questions raised. While the general rule is that the question of jurisdiction may be raised at any time, on the other hand, objection must be made by the defendant upon the trial to questions such as have been raised here in this case concerning the sufficiency of the order entered by the trial court, and unless he does so he is not in a position to complain in this court. People ex rel. Jeske v. Burke, supra. Other authorities have been called to our attention, but from an examination of the record, the order in question is not erroneous. '

The respondent also contends that the placita fails to show that the court was regularly organized at the term at which the defendant was committed, and therefore the order should be reversed, and points to the fact that the record does not show that the court was regularly convened at the term when Schwartz was committed. The certificate in this particular case only certifies that it is a true, perfect and complete copy of the judgment order and praecipe, and while there is a convening order attached to this record, the praecipe does not call for the placita showing a convening of the court at the beginning of the term. The whole record of the cause is not before us, but only such part as the praecipe required should be prepared, which as we have above stated, was the judgment order, and we assume from the fact that the record is not complete, there was a proper convening order, as required by law. Springer v. Maddock, 59 Ill. App. 40.

We are of the opinion that the trial court did not err in entering the order of commitment here on writ of error. Accordingly the action of the trial court is approved and the order affirmed.

Order affirmed.

Hall, P. J., and Denis E. Sullivan, J., concur.


text:
    Joanna Gerulis, Appellee, v. Michael Lunecki, Appellant. In re Appeal of Michael Lunecki, Appellant.
    Gen. No. 38,363.
    Opinion filed February 19, 1936.
    Rehearing denied March 5, 1936.
    LeRoy Winer and Louis Jaffie, both of Chicago, for appellant.

      Adams, Adams & White, of Chicago, for appellee; J. Thompson White, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for the plaintiff in the sum of $2,500 in an action by the plaintiff for damages for personal injuries sustained by her. The plaintiff was upon the premises of the defendant located at 2516 West 46th street, Chicago, and was there upon the invitation of the defendant, who was engaged in the meat business, to purchase meat supplies for her family.

On July 10, 1934, when the plaintiff entered upon the premises from an alley at the rear of defendant’s place of business, she was attacked by a police dog owned by the defendant and severely lacerated by the bites of this animal. The defendant kept this dog upon the premises to protect chickens kept at the rear of his premises from thieves and intruders.

The dog had been chained to a post attached to the garage. This chain was approximately five feet in length, was attached to the collar around the dog’s neck, and the dog was usually kept within a wire inclosure about five feet high. There was a space between the garage building and the fence on the dividing line of the property, and it was in this inclosed. area of about five feet that the animal was kept. On the day of the attack upon the plaintiff, the dog was not fastened or chained to the post, and furthermore, was not in the inclosure, but had the freedom of defendant’s premises at the rear of the meat market, when the attack upon the plaintiff took place.

There was some evidence as to the vicious propensities of this animal. The question is: Did the plaintiff by her evidence, submitted to the court without a jury, prove an injury which would justify the court’s judgment? This court in the case of Chicago & Alton R. Co. v. Kuckkuck, 98 Ill. App. 252, in passing upon the responsibility of an owner keeping a dog upon his premises to protect his property, said:

“It is next contended by appellant that ‘the proof fails entirely to show either that the dogs were of a ferocious and savage disposition and accustomed to attack and bite mankind, or that the appellant had any knowledge of it, were it so.’ In 2 Am. & Eng. Ency. of Law, 2d Ed., page 369, it is said in speaking of the liability of owners or keepers of dog's for injuries occasioned by them, ‘The scienter may be established by attendant circumstances without the necessity in all cases of proving prior cases of injury. ’
“In the note following it is further said:
“Where watch dogs are kept for protection, the dangerous character and knowledge thereof may be inferred from their size, their actual conduct, the admitted purpose for which they are .kept, and the care exercised in their custody. Where it appeared that it was the custom to chain up the dogs every morning at daylight and loosen them only at night, this was held to establish the scienter. And in Jones v. Perry, 2 Esp. 482, it is held that where the owner keeps his dog tied and does not permit him to run at large, it must be presumed that the dog is vicious, unruly, and not safe to be permitted to go abroad.”

The above stated case was affirmed by the Supreme Court between the same parties in Chicago & Alton R. Co. v. Kuckkuck, 197 Ill. 304.

It is evident that this police dog was kept by the defendant for the purpose of protecting his property against thieves and intruders. While there is evidence that he was kept in an inclosure, nevertheless the day on which this injury occurred the plaintiff was attacked in the manner appearing from the evidence, and the defendant was properly chargeable -with the dangerous character of the dog and knowledge thereof from the admitted purpose for which it was kept. While the question of the exercise of care in the custody of an animal is a question for the court, we believe the plaintiff by her evidence established the liability of this defendant for the damages she sustained while an invitee upon his premises.

The defendant complains of the amount of damages allowed the plaintiff for her injuries. From the record it appears that plaintiff was severely lacerated by the attack of this dog; that she has one or two sears on her left leg, for which she was treated by a doctor, and that she is unable to close the fingers of her left hand or open them completely; that there is an extensive red sear two and one-half or three and one-half inches in length over her breast; that while she had recovered from the effect of the bites of the dog, she was very nervous, and was unable to use her left arm; and that it is very doubtful whether the condition of her arm ever will be remedied. The doctor testified that judging from the type of her wound, he would say that the muscles were injured. We believe the trial judge, to whom this case was submitted, was justified in fixing plaintiff’s damages at $2,500.

Upon the question of admissibility of certain evidence, the court tried the case without the aid of a jury, and the presumption is that he disregarded evidence that might be considered objectionable.

Other questions have been raised upon this record, but in view of the reasons given in our opinion it will not be necessary to pass upon them.

The judgment is affirmed.

Judgment affirmed.

Hall, P. J., and Denis E. Sullivan, J., concur.


text:
    Frank H. Holt, Appellee, v. County of Cook, Appellant.
    Gen. No. 38,364.
    Opinion filed February 19, 1936.
    Thomas J. Courtney, State’s Attorney, for appellant; Hayden N. Bell, Jacob Shamberg, William P. Kearney, William T. Crilly and Gerald E. Hornidge, Assistant State’s Attorneys, of counsel.
    Coburn, Kearney & Coburn, for appellee; John J. Coburn, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the defendant from a judgment in the sum of $4,500 entered in the circuit court of Cook county upon the verdict of a jury for said amount.

The declaration alleges that the defendant caused to be erected and maintained a large poor farm with about 6,000 inmates on land neighboring plaintiff’s and that a large amount of noxious, poisonous and offensive sewage was conducted away from it over plaintiff’s land; that for a period of five years prior to the entry of the suit, the defendant caused said sewage to flow over plaintiff’s land and in so doing did appropriate and damage plaintiff’s land for public purpose without compensation contrary to the constitutional provision thereon, and that the plaintiff and his family resided on the land and that the land became unfit for residence and garden purposes.

The defendant pleaded not guilty, and alleged that in 1915 the mesne grantors of the plaintiff sued the defendant for taking and using the same land, and that a judgment for $12,500 was rendered against the defendant, and further that the close mentioned was the close, soil and freehold of the defendant.

From the facts in evidence it appears that the plaintiff purchased two lots in 1920 from a man named Kaiser, the owner of the subdivision in which the lots are located, and which is in the immediate vicinity of the large public institution known as the Oak Forest Infirmary or Poor Farm, owned and operated by the county of Cook.

It further appears that at the time of the purchase of said lots by the plaintiff the atmosphere was pure and clear, and the stream running through lots 37 and 38 was clear and unpolluted. The nuisance complained of began in June, 1923, and was caused by the county’s changing its method of disposing of sewage in the year 1922.

The evidence further shows that prior to 1922 the sewage was treated in a septic tank and after same was treated it ivas delivered into a large body of water, described as a lake. The change in the system was caused by the placing of a pipe by the county for the purpose of emptying the raw sewage directly into the open ditch without any treatment whatsoever, the septic tank having been abandoned; and that sewage gathered during the fall and winter of 1922 in the “slough” at Crawford avenue, and in June, 1923, after a shower it broke through Crawford avenue onto the land of the plaintiff and his neighbors, creating a condition that ruined his crops, killed his chickens, poisoned his well, and caused the plaintiff and the members of his family to become ill for a long period of time; and it is the contention of the plaintiff in this action that the county of Cook is liable to respondent in damages.

A like case was on appeal in this court, entitled Sevcik v. County of Cook, 282 Ill. App. 451, wherein the questions involved in the instant case were passed upon, and what was said in the opinion of the court in that case is applicable in the instant case. The court said:

“The defendant contends that the county of Cook, being an involuntary corporation, is not liable at common law to respond in damages for tort. It is the generally accepted rule that counties may sue and be sued in Illinois, and while they cannot be held liable for damages in tort actions where the doctrine of respondeat superior must be invoked, they are nevertheless liable for property appropriated to their own use and for damages done to abutting property by reason of public improvements made in pursuance of corporate powers, and where the declaration contains all the necessary averments of fact for an action in assumpsit it is immaterial whether the declaration he considered as one in tort or in assumpsit. Roe v. County of Cook, 358 Ill. 568. The ground upon which this doctrine has been approved is that a county organization, such as the one in the instant case, is not voluntary but compulsory; not for the benefit of individuals who have asked for such a corporation, but the public generally. County of Cook v. City of Chicago, 311 Ill. 234. . . .
“In the discussion of liability of the defendant, it is clear from the argument 'that the position of the plaintiff is that the defendant is liable for damages, by reason of injury and disturbance of the quiet occupancy of plaintiff’s home, and that the question is one for the jury.
“The general rule of law approved by the weight of authority in this and other States is that an employer is answerable in an action to recover damages for the negligence or want of skill of his agent or servant in the course or line of his employment, by which another is injured, but is held not to apply to counties, for the reason that counties are involuntary quasi corporations, being political or civil divisions of the State, created by general laws, to aid in the administration of the government.
“In the case of Symonds v. Clay County, 71 Ill. 355, the court said:
“ ‘In the language of Chief Justice Marshall, in Fowle v. Common Council of Alexandria, 3 Pet. 398, a county may be termed a “legislative corporation, established as a part of the government of the country.”
“ ‘The statutes prescribe all the duties which counties owe, and impose all the liabilities to which they are subject. Unless made so by express legislative enactment, they are not considered liable to persons injured by the wrongful neglect of duty or ivrongful acts of their officers or agents, done in the course of the performance of corporate powers or in the execution of corporate duties. The rule is the same' with respect to such other organizations as townships, school districts, and road districts. ’ Citing many cases in support of the above stated doctrine.
“And the court held that where the authorities of a county employed an agent to carry on its poor farm, and clear up a portion of it, which was in brush, and the agent, in burning the brush, carelessly or negligently permitted the fire to communicate with an adjoining farm, whereby the owner thereof sustained damage, the county was not liable.
“In applying this same rule, the court in the case of Hollenbeck v. Winnebago County, 95 Ill. 148, held that at common law a private action will not lie against a county for injuries occasioned by the negligence of its servants or officers in respect to the performance or nonperformance of their duties. And there is no distinction, in the application of this rule, between the neglecting to do or perform an act which ought to have been performed, and the performance of the duty in a negligent manner.
“The Supreme Court in the case of White v. County of Bond, 58 Ill. 297, and Town of Waltham v. Kemper, 55 Ill. 346, in applying the same rule to actions against counties for negligence in the administration of the duties of the agents and officers of the county, held that the county was not liable for an injury to the defendant for the negligent conduct of its officers or agents. .
“An interesting case upon the question of the rights of a person claiming to have -been injured because of a nuisance maintained by the county is that of Lefrois v. County of Monroe, 162 N. Y. 563, in which the court held that a county, which owns and maintains, for public purposes, a penitentiary, almshouse and farm, acts in a governmental capacity and is not liable for the acts of the officials controlling them, in permitting sewage and night soil from the buildings to be spread over the farm, and in allowing sewage and foul matter from the defendant’s building to run into a stream which ran along the land of the respondent owner, thereby polluting the air, and creating- and continuing a nuisance to the damage of the land and stock of a neighboring owner, and he cannot maintain an action against the county for an injunction restraining such nuisance and for damages caused thereby. Other cases may be found sustaining this doctrine that the plaintiff cannot maintain an action against a county for damages of a nature such as we have in the case before us. . . .
“It has been suggested by the defendant, county of Cook, that the court erred in not permitting this defendant to show that a former owner had recovered $12,500 for the taking and damaging of the same land for sewage purposes, and offered to show by certified copies of the record that Fred Holm, the former owner, recovered $12,500 for the appropriation of the land by the county of Cook for the taking and damaging of the land for sewage purposes, and the ease of Holm v. County of Cook, 213 Ill. App. 1, is cited.”

This court will therefore adhere to the rule of law set forth in the foregoing opinion and apply the same to the facts in the case now before us. The judgment for the plaintiff is accordingly reversed and the cause remanded.

Reversed and remanded.

Hall, P. J., and Denis E. Sullivan, J., concur.


author: Mr. Justice Denis E. Sullivan

text:
    The People of the State of Illinois ex rel. Omer C. Bader, Appellee, v. John J. Hallihan, Appellant.
    Gen. No. 38,182.
    Opinion filed February 19, 1936.
    Otto Kerner, Attorney General, for appellant; Earl B. Dickerson, Assistant Attorney General, of counsel.

      Raphael W. Marrow and James A. Daley, both of Chicago, for appellee.
   Mr. Justice Denis E. Sullivan

delivered the opinion of the court.

On December 28, 1934, the superior court of Cook county entered a judgment against John J. Hallihan, director of the Department of Registration and Education of the State of Illinois, and directed that a peremptory writ of mandamus issue against said defendant and in favor of Omer C. Bader, and commanding said Hallihan to proceed to examine or cause to be examined the plaintiff, Omer C. Bader, in medica, therapeutics, obstetrics, surgery and theory and practice, pursuant to section 12 of the Medical Practice Act of the State of Illinois, Ill. State Bar Stats. 1935, ch. 91, ¶ 12, and that if the said plaintiff shall successfully pass said examination, to issue to the plaintiff a license authorizing him to engage in the general practice of medicine and surgery in all their branches in the State of Illinois.

In the petition filed by the plaintiff, it is alleged that plaintiff was a resident of Cook county and of good moral character and that on December 28, 1921, was duly licensed to treat human ailments without the use of drugs and medicines and without operative surgery and has continuously engaged in the City of Chicago in the practice of such treatment, as authorized by such license; that on December 19, 1931, he successfully completed proper courses of instruction in liberal arts for a period of two years in materia medica, therapeutics, obstetrics, surgery, and theory and practice, in a medical college or professional school, college or institution teaching liberal arts and also a system or method of treating human ailments, reputable and in good standing in the judgment of the Department of Registration and Education, to wit: Illinois College of Physicians and Surgeons, as required by section 12 of the Medical Practice Act of the State of Illinois; that on December 31, 1932, he completed a course of training of 12 months in a hospital reputable and in good standing in the judgment of the said department, to wit: Jefferson Park Hospital.

In the alternative plaintiff states that if the Illinois College of Physicians and Surgeons and Jefferson Park Hospital were not or either of them was not reputable and in good standing in the judgment of said department, section 12 of the Medical Practice Act is invalid and void and contrary to Article III of the Constitution of the State of Illinois in so far as the same attempts to grant to said department legislative powers and duties and to authorize said department to determine the reputation and good standing of said college, institution and hospital without defining in said statute what should constitute such requirements and also, in that said portion of said section purports to confer upon said department arbitrary and discriminatory powers, and said portion of said section is also contrary to the 14th Amendment to the Constitution of the United States in that said portion of section 12 is arbitrary and discriminatory and deprives plaintiff of property without due course of law and denies to plaintiff the equal protection of the laws of the State of Illinois.

Plaintiff further avers in the alternative that if section 12 of said act be held valid the acts and conduct of defendant in construing and operating under said section were and are arbitrary and contrary to Article III of the Constitution of the State of Illinois and also the 14th Amendment to the Constitution of the United States in that said Illinois College of Physicians and Surgeons and said Jefferson Park Hospital were reputable and in good standing and fully qualified to instruct plaintiff in said course of liberal arts and for the general practice of medicine and surgery and which were equal in all respects to other colleges, institutions and hospitals for said instruction and the failure or refusal of defendant to recognize them as reputable and in good standing was and is arbitrary and discriminatory and not founded upon any reasonable basis; that plaintiff applied to defendant to be examined pursuant to section 12 of the Medical Practice Act and paid to defendant the fee therefor and has fully complied with all requirements of the law necessary to qualify him to take such examination, but the defendant without just cause or reason arbitrarily refused to examine plaintiff or admit plaintiff to such examination. Plaintiff therefore prays that a writ of mandamus issue directing defendant either (1) to proceed to examine plaintiff pursuant to section 12 of the Medical Practice Act and to issue a license to plaintiff authorizing him to engage in the general practice of medicine and surgery; or (2) to issue to plaintiff a license authorizing him to engage in the general practice of medicine and surgery in all their branches.

In the answer defendant stated in substance that the writ of mandamus should not issue because (1) plaintiff did not successfully complete proper courses of instruction of liberal arts for a period of two years and in materia medica, therapeutics, obstetrics, surgery, and theory and practice, in a medical college or professional school in good standing in the judgment of the Department of Registration and Education, to wit: Illinois College of Physicians and Surgeons; (2) that the Illinois College of Physicians and Surgeons from which plaintiff was graduated is not and was not reputable and in good standing in the judgment of the Department of Registration and Education; that on August 15,1932, after a full hearing before the Medical Committee, the Department of Registration and Education denied the application of the Illinois College of Physicians and Surgeons as an approved medical school; (3) that the plaintiff did not on December 31, 1932, complete a course of training of 12 months in a hospital reputable and in good standing in the judgment of the department, but that the Jefferson Park Hospital, where plaintiff took his interneship was not and is not on the list of hospitals approved for interne-ship by the Department of Registration and Education and is not and was not reputable and in good standing in the judgment of the Department of Registration and Education; (4) that plaintiff did not duly apply to the defendant to be examined pursuant to section 12 of the Medical Practice Act, in that plaintiff attended a medical school which was not in the judg*ment of the department a reputable medical school or college and took his interneship at the Jefferson Park Hospital which was not reputable and in good standing in the judgment of the department; (5) that the defendant did not without just cause or reason arbitrarily refuse to examine the plaintiff, but that plaintiff failed to comply with the requirements of section 12 of the Medical Practice Act before making application to take the examination.

The section of the statute which controls the actions of the plaintiff and defendant is paragraph 12, section 12 of the Medical Practice Act, Ill. State Bar Stats. 1935, ch. 91, which reads as follows:

“Any person licensed under the provisions of this Act to practice, any system or method of treating human ailments without the use of drugs or medicines and without operative surgery shall be permitted to take the examination in materia medica, therapeutics, surgery, obstetrics, theory and practice and shall receive a license to practice medicine in all of its branches if he shall successfully pass such examination, upon proof of having successfully completed in a medical college or in any professional school, college or institution teaching any system or method of treating human ailments, reputable and in good standing in the judgment of the department, courses of instruction in materia medica, therapeutics, surgery, obstetrics, and theory and practice deemed by the department to be equal to the courses of instruction required in those subjects for admission to the examination for a license to practice medicine in all of its branches, together with proof of having completed (a) the two years’ course of instruction in a college of liberal arts, or its equivalent, described in section 5 of this Act, and (b) a course of training of not less than twelve months in a hospital reputable and in good standing in the judgment of the department.”

The dispute between the plaintiff and the defendant appears to be whether or not the Illinois College of Physicians and Surgeons and the Jefferson Park Hospital, in which the plaintiff took his course of study and served his interneship respectively, are or should be in the opinion of the Department of Registration and Education in good standing. The evidence shows that the Department of Registration and Education had decided that the college and hospital respectively, were not, in their opinion, in good standing so as to qualify the plaintiff and make him eligible to take the examination for a license to practice medicine and surgery in the State of Illinois.

By section 12 of the Medical Practice Act, heretofore referred to, it will be seen that there is lodged in the Board of the Department of Registration and Education a discretionary power to determine whether the applicant has complied with the statute. Evidence was introduced by the testimony of several doctors showing that, in their opinion, both the medical college and the hospital were reputable. It is not the province of either the witnesses or of this court to determine in this proceeding the qualifications of the college or hospital as the statutes provide that the Department of Registration and Education shall decide that question.

There was no evidence introduced showing lack of good faith on the part of the defendant, prejudice or fraud, or that defendant was doing other than giving his best judgment when deciding the question under the power conferred upon hipa by the statute. We do not think that the mere fact that he decided adversely to the plaintiff at the time plaintiff made his application, is proof that his action was arbitrary.

Defendant in support of his case offered a stipulated exhibit which contained the petition of the Illinois College of Physicians and Surgeons to Department of Registration and Education of the State of Illinois for recognition as a medical school, reputable and in good standing, dated January 4, 1932. On the petition appeared the name of the relator herein as a member of the board of governors of the said Illinois College of Physicians and Surgeons and a transcript of the evidence offered at the hearing and the report and finding and recommendation of the medical committee to M. F. Walsh, director of the Department of Registration and Education, dated August 15, 1932, wherein the committee respectfully recommends that the application of the Illinois College of Physicians and Surgeons for recognition as an approved medical college be denied. The report is signed by the members of the medical committee.

Said exhibit further contained the order of M. F. Walsh, director of Registration and Education adopting the findings and recommendations of said medical committee and denying the application of the Illinois College of Physicians and Surgeons for recognition as an approved medical college and also the certificate of M. F. Walsh, director of Registration and Education dated September 28, 1932, certifying that the proceedings as set forth in the transcript of evidence were had before the Department of Registration and Education of the State of Illinois on the petition for recognition of the Illinois College of Physicians and Surgeons as an approved medical college.

It will readily be seen from the facts before us that this court must first decide whether the Illinois College of Physicians and Surgeons is in good standing before we can determine whether the plaintiff was wrongfully and arbitrarily refused the opportunity of taking the examination.

The plaintiff’s argument appears to be based upon the theory that if the Department of Registration and Education did not find the Illinois College of Physicians and Surgeons and the Jefferson Park Hospital reputable and in good standing, such finding was due to arbitrary and discriminatory action on the part of said Department of Registration and Education. It must necessarily follow then that in order to owe the duty to the plaintiff, to permit him to take the examination alleged in the petition for mandamus, said department must first find that in its opinion the Illinois College of Physicians and Surgeons and the Jefferson Park Hospital are reputable and in good standing.

Mandamus is an extraordinary remedy, and one petitioning for such writ must show a clear and undoubted right to the relief demanded. Illinois Watch Case Co. v. Pearson, 140 Ill. 423. Mandamus is not a proper remedy if the petitioner must first establish the duty of the officers sought to be coerced. People v. Dixon, 346 Ill. 454.

It appears from the evidence before us that the reputability and good standing of the Illinois College of Physicians and Surgeons and the Jefferson Park Hospital have, after a full hearing, been passed upon. Where an officer, in the exercise of discretionary power, has considered and determined his course of action he has exercised his discretion and decided the matte! and his action is not subject to review or control by mandamus. People v. Reddick, 181 Ill. 334; People v. Henry, 236 Ill. 124. Surely the exercise of this discretionary power, when once used, could not be disturbed in a collateral proceeding such as this. Van Dorn v. Anderson, 219 Ill. 32; Pyle v. Puntney, 254 Ill. App. 224.

In the case of MacGregor v. Miller, 324 Ill. 113, 118, the court said:

“It is a well recognized rule that where the performance of an official duty or act involves the exercise of judgment or discretion the officer cannot ordinarily be controlled with respect to the particular action he will take in the matter, and where an officer, in the exercise of discretionary power, has considered and determined what his course of action is to be he has exercised his discretion, and his action is not subject to review or control by mandamus; and so careful are the courts of encroaching in any manner upon the discretionary powers of public officials, that if any reasonable doubt exists as to the question of discretion or want of discretion they will hesitate to interfere, preferring rather to extend the benefit of the doubt in favor of the officer.”

It is further claimed by the plaintiff that section 12 of the Medical Practice Act, which lodges the power to determine whether an examination shall be accorded to applicants or not, is unconstitutional, being in violation of both the State and federal constitutions. If this were true and we were permitted to pass upon and decide with plaintiff’s contention, then there would be no law regulating the issuance of a license and the defendant would be excused from giving the examination for want of power to give same.

From a review of this record it appears that the defendant has exercised the discretion legally placed in him and that Ms action has not been proven to be arbitrary or unlawful and for that reason the trial court should not have issued the writ. The judgment of the superior court is, therefore, reversed.

Judgment reversed.

Hall, P. J., and Hebel, J., concur.