text:
    Marie Chancey, Appellee, v. Thomas G. McBride, Appellant.
    Gen. No. 32,960.

      Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed January 21, 1929.
    William Greene and H. L. Howard, for appellant.
    John W. Walsh and Martin Walsh, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

While plaintiff and defendant were each driving their automobiles in Oak Park, Illinois, there was a collision between the two machines. Plaintiff’s machine was damaged and she received personal injuries. She brought an action before a justice of the peace in Oak Park to recover for the damage to the automobile and obtained judgment for $275, which the defendant paid. She then brought the instant suit in the superior court of Cook county to recover the damages she claimed to have sustained by the personal injuries.

The defendant interposed, as a defense, the judgment rendered by the justice of the peace and its satisfaction in bar. The court overruled this defense. Plaintiff contended that the judgment rendered by the justice of the peace determined the question of the defendant’s liability, and therefore the only question open for consideration in the instant case was the extent of plaintiff’s damages occasioned by the injuries she received.. The court sustained this contention and the question of the extent of plaintiff’s damages was submitted to the jury, which by its verdict fixed the damages at $2,000. The court required a remittitur of $500 and judgment was entered against the defendant for $1,500.

The controlling question in this case is whether plaintiff might maintain two actions growing out of the single tort, viz., the collision between the two automobiles — one for the damage done the automobile and the other for the personal injuries sustained. It is conceded this question has never been passed upon by the courts of this State and the decisions in other jurisdictions are conflicting. In England, New York, New Jersey and Texas it has been held that there were two causes of action where the question involved was similar to the question here. Brunsden v. Humphrey, L. R. 14 Q. B. Div. 141; Reilly v. Sicilian Asphalt Paving Co., 170 N. Y. 40; Ochs v. Public Service Ry. Co., 81 N. J. L. 661; Watson v. Texas & P. Ry. Co., 8 Tex. Civ. App. 144. While in Massachusetts, Minnesota, Mississippi, Missouri, Washington, Pennsylvania, Alabama, Arizona, Kentucky and Tennessee a contrary doctrine has been declared. Doran v. Cohen, 147 Mass. 342; Bliss v. New York Cent. & H. R. R. Co., 160 Mass. 447; Braithwaite v. Hall, 168 Mass. 38; King v. Chicago, M. & St. P. Ry. Co., 80 Minn. 83; Kimball v. Louisville & N. R. Co., 94 Miss. 396; Fields v. Philadelphia Rapid Transit Co., 273 Pa.. 282; Sprague v. Adams, 139 Wash. 510; Smith v. Cincinnati, N. O. & T. P. Ry. Co., 136 Tenn. 282; Coy v. St. Louis & S. F. Co., 186 Mo. App. 408, 172 S. W. 446; Birmingham Southern R. Co. v. Lintner, 141 Ala. 420; Jenkins v. Skelton, 21 Ariz. 663, 192 Pac. 249; Cassidy v. Berkovits, 169 Ky. 785, 185 S. W. 129.

In the Brunsden case it was held by a two to one decision (the Chief Justice dissenting) that damages to the goods and injury to the person, although occasioned by one and the same wrongful act, gave rise to two distinct causes of action and that two separate suits might be maintained. In that case it appeared that while plaintiff was driving his cab it collided with a van of the defendant through the negligence of the defendant’s agent, whereby the plaintiff sustained bodily injury and his cab was damaged. Plaintiff brought suit to recover for damages to the cab and received, payment in that case. He afterwards brought suit to recover for the personal injury. The Master of the Bolls, Brett and Lord Justice Bowen each delivered a separate opinion, holding that two actions would lie, while there was a dissenting opinion by Chief Justice Lord Coleridge.

In discussing preliminary questions as to the state of the law then in England, Lord Justice Bowen quoted with approval from the case of Thorpe v. Cooper, 5 Bing. 129, as follows: “Though a declaration contain counts under which the plaintiff’s whole claim might have been recovered, yet if no attempt was made to give evidence upon some of the claims, they might be recovered in another action.” And after holding that two actions might be maintained, further said (p. 152): “The present case is one in which I am conscious that lawyers of authority do differ and will differ.” The Lord Chief Justice in his dissenting opinion said (p. 152): “It appears to me that whether the negligence of the servant, or the impact of the vehicle which the servant drove, be the technical cause of action, equally the cause is one and the same; that the injury done to the plaintiff is injury done to him at one and the same moment by one and the same act in respect of different rights, i. e., his person and his goods, I do not in the least deny; but it seems to me a subtlety not warranted by law to hold that a man cannot bring two actions, if he is injured in his arm and in his leg, but can bring two, if besides his arm and leg being injured his trousers which contain his leg, and his coat sleeve which contains his arm, have been torn.”

In the Reilly case the New York Court of Appeals reversed the Appellate Division of the Supreme Court of that State (31 App. Div. 302). In that case both the person and the vehicle of the plaintiff were injured while he was driving in Central Park, New York, in consequence of a collision with a gravel heap placed in the roadway through the negligence of the defendant. He brought two actions against the defendant, one to recover damages for injury to his person and the other for damage to his vehicle. In the latter case he had judgment, which was paid, and this was interposed as a defense to the other action. This defense was held to be good and on appeal to the Appellate Division it was affirmed. On a further appeal the judgment was reversed, and it was held that where there was an injury to the person and damage to the property of the same person, resulting from the same tortious act, there were two different causes of action and a judgment in one did not bar the other. The court there said (p. 43): “In England it has been held by the Court of Appeal, Lord Coleridge, Chief Justice, dissenting, that damages to the person and to property though occasioned by the same wrongful act give rise to different causes of action (Brunsden v. Humphrey, L. R 14 Q. B. D. 141); while in Massachusetts, Minnesota and Missouri the contrary doctrine has been declared. (Doran v. Cohen, 147 Mass. 342; King v. Chicago, M. & St. P. Ry. Co., 82 N. W. Rep. 1113; Von Fragstein v. Windler, 2 Mo. App. 598.” In the Ochs case it appeared that plaintiff while driving his carriage was run down by a trolley car of the defendant with the consequence that the wagon, horse and person were injured. Plaintiff recovered in an action for injuries to the horse and carriage, and subsequently brought suit for his personal injuries. The trial court refused to hold that the judgment in the first case was a bar to the second. An appeal was taken to the Supreme Court of New Jersey (Ochs v. Public Service Ry. Co., 80 N. J. L. 148) where the judgment was reversed, the court saying that the trial court followed the rule laid down in England in the Brunsden case, supra, and that the English rule had been followed in Texas and New York, citing the Watson and Beilly cases, supra. But the court refused to follow that rule and said (p. 150): “On the other hand, the rule supported by the greater weight of American authority is that a plaintiff cannot legally maintain more than one action for the same tortious act and cannot divide the tort, and have one action for an injury to his property and another for an injury to his person. King v. Chicago, etc., R. Co., 80 Minn. 83, . . . disapproving the opinion of the majority of the court in Brunsden v. Humphrey (14 Q. B. Div. 141), and approving the' dissenting opinion 'Of Chief Justice Coleridge.” Then follow citations of a number of cases which it is said approve the rule denounced in the dissenting opinion of Chief Justice Coleridge, the citations being from Massachusetts, Missouri, Alabama, Connecticut, Wyoming and a Federal reporter. The court continuing there said: “In the present case there was no legal obstacle to the plaintiff’s claiming both classes of damages in his first suit.” A further appeal was taken in that case to the Court of Errors and Appeals of New Jersey, where the judgment of the Supreme Court was reversed, the court approving the rule announced in England, New York and Texas. In .the Watson case, supra, it was held that an action for personal injuries sustained by the owner of horses while traveling with them on a drover’s pass was not barred by a judgment for the injury to the horses received in the same accident.

On the other side, in the Doran case, supra (147 Mass. 342), the Supreme Court of Massachusetts held that where one count of the declaration charged that the defendant negligently damaged plaintiff’s sailboat, and a second count was added by way of amendment charging that by the same tortious act plaintiff was injured in his person, it was held that both counts were for the same cause of action. The court there said (p. 344): “In the case before us, two counts of the declaration are for the same cause of action; the gist of which is, that the defendant negligently managed his steamboat so as to run down the sailboat of the plaintiff when he was sailing it in, using due care. Each count sets out the same tortious act of the defendant as the cause of action. They differ only in that the original count sets out that the plaintiff’s sailboat was rendered unfit for use, that it was worth $200, and that he was £ damaged to that extent and otherwise; ’ while the amended count alleges that he was injured in his person. The plaintiff could not legally maintain more than one action for the same tortious act. He could not divide the tort, and have one action for the injury to his property and another for the injury to his person.”

In the Bliss case, supra (160 Mass. 447), which was an action in tort for personal injuries and damage to clothing caused by one wrongful act of the defendant, it was held that there was but one cause of action. The court there said (p. 455): “It is true, under our decisions, that the injury to the plaintiff’s person and to his clothing furnished but one cause of action, and that a recovery of judgment by him for the damage to his clothing would have barred a subsequent action for his personal injury. (Citing eight Massachusetts cases.) In this respect the law, as established here, differs from that of England, upon which the plaintiff relied in the argument. Brunsden v. Humphrey, 14 Q. B. Div. 141.”

The same rule was followed in the Braithwaite case, (168 Mass. 38), where Mr. Justice Holmes in delivering the opinion of the court said (p. 39): “Nowadays we do not require pleadings to be guarded against all the possible distortions of perverse ingenuity. The single collision which caused the damage to the plaintiff’s person and to his bicycle was one cause of action.”

In the King case, supra (80 Minn. 83), the Supreme Court of Minnesota refused to follow the English rule laid down in the Brunsden case, supra, but accepted (as it stated) the common sense, practical reasoning of Chief Justice Coleridge in his dissenting opinion. It also disapproved of the holding of the Texas court in the Watson case, supra, and held that injuries to the person and damages to the property of the person injured, both resulting from the same tortious act, are separate items of damages constituting but one cause of action.

So also in the Kimball case, supra (94 Miss. 396), the Supreme Court of Mississippi held that where a plaintiff sustained injuries to his person and property by the same tortious act, the plaintiff’s injuries were merely separate items of damage and constituted only one cause of action. In that case it appears from the briefs of counsel the English, New York and Texas cases were relied upon, but the court refused to follow them.

In the Fields case, supra (273 Pa. 282), it was held that where an action had been brought and judgment recovered for damages for injuries to a horse, wagon and harness, due to the negligent act. of the defendant, a second suit could not be maintained for personal injuries sustained by the plaintiff by the same negligent act of the defendant. In that case the court said (p. 285): “Whether injuries to person and property by the same act may be redressed in separate suits, has been the subject of frequent discussion, and the results reached are in conflict. The English rule, fixed by a divided court, first found expression in Brunsden v. Humphrey, 14 Q. B. D. 141, and is based on the proposition that the cause of action rests not on the negligent act, but on the consequence of the wrong, from which it is argued that separate proceeding may be instituted for the different injuries as they accrue. This conclusion has been followed in three American states, but is opposed by the weight of authority. The majority view is well set forth in McKnight v. Minneapolis St. Ry., 127 Minn. 207, 149 N. W. 131.”

The same was substantially the holding by the Supreme Court of Tennessee in the case of Smith v. Cincinnati, N. O. & T. P. Ry. Co., 136 Tenn. 282. And the Supreme Court of Washington in the late case of Sprague v. Adams, 139 Wash. 510, after an exhaustive review of the authorities, held that damages resulting from a single tort, even though they be partly property damages and partly personal injury damages, could not be made the subject of separate suits against the defendant.

From an examination of the authorities above referred to, and many others, we are of the opinion that the great weight of authority in America is that where a person suffers damage to his personal property as well as to his person as a result of a single tort, he can maintain but one suit. We think this is the common sense, practical view to take. It will avoid unnecessary litigation because damages for injury to the property and person may, properly, be joined in one action. Chicago W. D. Ry. Co. v. Ingraham, 131 Ill. 659.

It follows from what we have said that the judgment rendered in favor of the plaintiff and against the defendant in the justice of the peace court is a bar to the" case before us.

The judgment of the superior court of Cook county is reversed and the cause remanded with directions to enter judgment in favor of the defendant in accordance with the views herein expressed.

jReversed and remanded with directions.

McSurely and Hatchett, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    M. Martin Gordon, Defendant in Error, v. Sophia P. Krieger and J. R. Krieger, Plaintiffs in Error.
    Gen. No. 32,610.
    Heard in the first division of this court for the first district at the April term, 1928.
    Opinion filed January 21, 1929.
    Isadore Becker and Delavan B. Cole, for plaintiffs in error; Delavan B. Cole, of counsel.
    Dittos & Chatroop, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

By this writ, of error defendants question the judgment entered in a fourth-class action of trover tried by the court. The goods mentioned in a replevin writ were not taken and a statement of claim in trover was filed, alleging that defendants “wrongfully took all of said property and converted it to their own use. ’ ’ The finding of the court was that defendants were “guilty of having maliciously, wilfully and intentionally, and with intent to injure and defraud the plaintiff converted to the defendants’ own use” the property, and assessed the plaintiff’s damages at $800. Defendants do not contend against the judgment for $800, but' protest against the- finding of malicious conversion on the ground that it is not responsive to the issues made' by the pleadings nor supported by the evidence.

Trover may be divided into two classes: (1) Where a conversion alone is the gist of the action and malice not an essential element; and (2) where malice is made the gist of the action by proper averments in the pleadings. The allegations of the instant statement fall within the first class. Plaintiff replies that in a fourth-class case in the municipal court the action is what the evidence makes it, and argues that if the evidence justifies a finding of malicious conversion the judgment should stand.

Applying this test, without passing upon the applicability of the rule to an action in trover, we hold that the evidence did not justify the finding of malice.

The bill of exceptions, which presents the evidence in narrative form, shows that plaintiff sold to Orla T. Goodrich the property in question (household furniture) under a conditional sales contract which provided for payment in instalments, and that the title thereto should remain in the seller until all instalments were paid, and that in case of default the purchaser should surrender the property on demand. Goodrich took possession of the furniture and made default in certain payments due under the contract and “the plaintiff made demand from the defendants for the delivery of said property to him, which demand was refused by the defendants, on the ground that said property had been delivered to them as security for rent amounting” to $330 due from him to the defendants on certain premises owned by them and occupied by said Goodrich.” The value of the chattels was $1,500, and plaintiff’s interest therein was $800.

This is virtually all of the transaction shown in the record. It does not appear that defendants had any knowledge of the Goodrich contract or were informed of the nature of plaintiff’s claim. There is simply the bare statement that the plaintiff demanded that it be delivered to him without any showing as to the basis of the demand. The defendants might properly refuse to deliver the furniture without some showing of right in the party making the demand. Goodrich had left the property in their custody as security for the rent due them and they could honestly believe that they were entitled to hold the same until their lien was paid. So far as the record shows, plaintiff was an entire stranger to defendants. Under such circumstances, while the finding of wrongful conversion was proper, it was error to find that the taking and conversion was malicious.

Defendants do not question the finding of $800 damages. For the reasons indicated the judgment is reversed, and as the case was tried by the court, judgment will be entered here finding defendants guilty of wrongfully taking the property of plaintiff described in the replevin writ and converting it to their own use, and assessing plaintiff’s damages at the sum of $800.

Reversed and judgment in this court against defendants for $800.

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


author: Me. Justice McSurely

text:
    Percival B. Coffin, Administrator of the Estate of Dorothy E. Hollis, Deceased, Plaintiff in Error, v. Chicago City Railway Company et al., Defendants in Error.
    Gen. No. 32,782.
    Heard in the first division of this court for the first district at the June term, 1928.
    Opinion filed January 21, 1929.
    James C. McShane, for plaintiff in error.
    Brown, Fox & Blumberg, for defendants in error; Frank L. Kriete, Charles LeRoy Brown, A. R. Peterson and Henry Blumberg, of counsel.
   Me. Justice McSurely

delivered the opinion of the court.

Plaintiff by this writ of error seeks the reversal of an adverse judgment entered upon a directed verdict in an action to recover compensation for the death of Dorothy E. Hollis, hereafter called plaintiff, by reason of the alleged wrongful operation and maintenance of a street car belonging to the defendants. The same accident also caused the death of Nellie K. Nahand, and the two cases were consolidated for hearing and tried at the same time. They have also been consolidated in this court for hearing. As there is yirtually no difference in the facts relating to the two young ladies, respectively, what is said as to one also applies to the other.

Plaintiff asserts that the injuries received, causing death, were occasioned by the negligent overcrowding of the street car.

The accident happened about 5:35 p. m., June 11, 1926, in one of defendants’ street cars on Cicero avenue which runs north and south in Cook county. The two young ladies with a number of other employees of the Western Electric Company, which is On Cicero avenue between 22nd and 26th streets, boarded the car in question and as the seats were all filled proceeded to the front end of the car and stood at about the middle of the partition which separates the front end of the car from the front platform. The, car proceeded northward to about 16th street. At this point a truck was blocking the street car track and two or three cars were standing south of it. The car in question stopped and stood immediately behind the standing cars for a few minutes.

At the time plaintiff boarded the car and until the time of the accident there was an electrical storm of unusual violence with a severe rain. Some witnesses describe- the storm as the worst within their recollecT tion. During the storm the car on which plaintiff was riding was struck by lightning. There are two trolley poles on the top of the car about 30 feet apart. As the car was going northward the south pole was in contact with the trolley wire. These poles are connected by a wire which extends along the top of the car which is connected with another wire which extends along on top of the car to the corner post at the northwest corner of the car. There is a wire extending down this corner post to the bottom of the car which, in turn, was connected with the appliance by which the car was operated. The lightning struck the car at the base of the front trolley pole on the roof and apparently ran down through this wire into the wire on the corner post. It burned and melted much of the wiring on the front end of the car.

Almost at the same instant there was what is described as “a burst of fire” from the front partition where the plaintiff was standing. Witnesses describe these flames as “a streak of fire” or “a flash of flame” which seemed to come from the ceiling making the whole front end of the car apparently on fire. A witness who was standing near the front of the car described the occurrence after the crash thus: “The

flames burst out very suddenly. They enveloped me. It seems the flames stretched out. * * * It was a flame that seemed to shoot out at me.” This description is typical of the testimony given by witnesses regarding the flash of fire, indicating with certainty that the lightning stroke, the burning and melting of the wires and the flashes of fire were virtually a single, short phenomenon.

Within about a minute or so occurred what counsel for defendants describe as a second phase of the fire; this was caused by the conveyance of electrical current through the rear trolley pole, which was still connected with the trolley wire, into the front end of the car and into the burned and disorganized wiring; this current would normally follow the wiring and propel the car, but, because of the burned and disorganized wiring it was diverted into the woodwork of the front partition, setting it on fire. An employée of defendants within one or two minutes thereafter pulled down the trolley pole, thus cutting off the current, leaving the wood in the partition smoldering, which continued until it was extinguished by a fireman a considerable time after the stroke of lightning.

The evidence gives no information as to when or how the two young ladies were burned. Many witnesses knew them and saw them on the car just before the lightning stroke. There is no evidence as to what subsequently happened to them except the evidence of physicians who later examined the burns on their bodies. The physician who examined Miss Hollis first saw her about 9:00 p. m. on the day of the accident. He said the burns were distributed over her entire body from her face to her feet. She lived eleven days thereafter. A physician first saw Miss Nahand at his office about two blocks from the scene of the accident. Her burns were also described as widely distributed from her face to her feet. She died eight days later. The evidence gives no information as to what was done by or with these young women in the interval between the stroke of lightning and the time they were examined by the physicians.

Plaintiff’s declaration with an additional count was filed.within one year of the accident and subsequently, after the year, was.amended.. Defendants assert that the declaration did not present the cause of action now relied upon until after the statutory period of limitation had run. The subsequent amendment merely amplified the previous declaration; it did not change the controlling allegation of defendants’ negligence, and hence, did not state a new cause of action.

Although the alleged overcrowding of the car is argued at some length, yet for the purpose of this opinion and in order to arrive directly at the decisive point in the case, we will assume that the evidence tended to show overcrowding. At least, it was a question of fact for the jury to determine.

It is obvious that defendants cannot be liable for injuries caused solely by the stroke of lightning. This is conceded. Neither is there any claim of negligence with reference to the equipment of the car. The position of plaintiff is that, admitting that the injuries immediately caused by the stroke of lightning may be ascribed to an act of God, yet the evidence tends to show that the overcrowded condition of the car concurred and mingled with the act of God as an active and co-operative cause of the injury which would not have occurred but for such negligence. This rule is supported by Wald v. Pittsburg, C., C. & St. L. R. Co., 162 Ill. 545, where a passenger checked his trunk to be carried on the same train on which he was riding through Pennsylvania. By negligence of the railroad company the trunk was carried on a later train. The train on which the passenger was riding reached its destination in safety, while the later train carrying the passenger’s trunk was caught in the famous Johns-town flood and destroyed. It was held there that if the carrier has been guilty of any previous negligence which brings the property in contact with the destructive force of the act of God, it is liable. Many other similar cases might be cited, such as Sandy v. Lake St. El. R. Co., 235 Ill.. 194; Schwarz v. Adsit, 91 Ill. App. 576; and others.

Undoubtedly this is the rule, but plaintiff’s case is fatally defective in that there is no evidence from which the jury could reasonably find that plaintiff was burned by the fire which was caused by the contact of the trolley pole with the trolley wire and not solely by the flames emanating from the lightning stroke. The theory on which liability is predicated is that the car was so overcrowded that plaintiff was pushed and held against the front partition so that she was unable to escape and remove her person from the burning partition; that as long as there is any evidence from which the jury might infer that plaintiff was injured by the second phase of the fire, because held in her position by the crowd, thus preventing her escape from the flames, it should have had the opportunity to so determine, although there are facts and circumstances which indicate with equal probability that the plaintiff received all her burns from the instantaneous lightning stroke.

There are certain expressions in some cases indicating that a wrongdoer may avoid liability by showing that the loss for which it is sought to hold him liable must necessarily have happened even though he had not been negligent, but it cannot avail him to show that- the loss might have happened if he had not been negligent. 8 Am. & Eng. Encyc. of Law (2nd Ed.), p. 608. In Reynolds v. Texas & P. Ry. Co., 37 La. Ann. 694, it is said that where the negligence greatly multiplies the chances of accident and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to avoid liability. It is argued with force that because of the overcrowded condition of the car in question the chances of escape by the plaintiff from the secondary fire were greatly lessened and that this condition naturally led to delay in avoiding the danger from this source and to the ultimate death of the plaintiff.

Whatever may be the law elsewhere, it is the rule in this state, established by a large number of decisions, that the existence of a certain fact cannot be reasonably inferred from the evidence when the existence of another fact, inconsistent with the first, can be inferred from the same evidence with equal certainty; a fact cannot be established by circumstantial evidence unless the circumstances are of such a nature and so related to each other that it is the only conclusion that can be drawn therefrom.

“It cannot be said that the existence of a certain fact may reasonably be inferred from the evidence when the existence of another fact inconsistent with the first can be, from the same evidence, inferred with equal certainty. The evidence must point to the existence of some particular fact, rather than to the existence of another fact inconsistent with the first, before it can be said that such evidence alone tends to prove the existence of the first.” Chicago Union Traction Co. v. Hampe, 228 Ill. 326.

Very pertinent to the instant case is the language of Mr. Justice Dunn in Peterson & Co. v. Industrial Board, 281 Ill. 326:

“Any of these suppositions is as consistent with the evidence as any other and all are mere conjecture. Liability cannot rest upon imagination, speculation or conjecture, upon a choice between two views equally compatible with the evidence, but must be based upon facts established by evidence fairly tending to prove them.”

In Neal v. Chicago, R. I. & P. Ry. Co., 129 Iowa 5, cited with approval in Ohio Bldg. Safety Vault Co. v. Industrial Board, 277 Ill. 96, the rule is thus stated:

“A theory cannot be said to be established by circumstantial evidence, even in a civil action, unless the facts relied upon are of such nature and so related to each other that it is the only conclusion that can fairly or reasonably be drawn from them. It is not sufficient that they be consistent merely with that theory, for that may be true and yet they may have no tendency to prove the theory. This is the well-settled rule.”

Similar expressions could be multiplied indefinitely. Chicago & E. I. R. Co. v. Reilly, 212 Ill. 506; Grant v. Pennsylvania & N. Y. Canal & R. Co., 133 N. Y. 657; Standard Oil Co. v. Industrial Commission, 322 Ill. 524; Jersey Ice Cream Co. v. Industrial Commission, 309 Ill. 187; Ira J. Mix Dairy Co. v. Industrial Commission, 308 Ill. 549; Ryan v. Industrial Commission, 329 Ill. 209; Libby, McNeill & Libby v. Industrial Commission, 326 Ill. 293; Atlas Brewing Co. v. Industrial Commission, 314 Ill. 196.

This is consistent with the rule which places the burden on the plaintiff of proving liability. He must prove that the injuries were in fact, or with reasonable probability, caused by the alleged negligence of defendant and not leave it to a jury to speculate between this and another adequate cause equally probable but unconnected with the defendant. Where the evidence is reasonably consistent with two hypotheses, one of which imposes liability and the other does not, the plaintiff has failed to prove his case by the required preponderance of the evidence.

It is said that the character of the burns on the body of plaintiff indicated that she was pressed or held by the crowd against the burning partition. There could be no reasonable inference of this fact from the character of the burns. The sister of Miss Hollis said that on her coat were two bars or lines of burns about four inches apart. There was no evidence that there were any bars so spaced in the partition, and even if there were, the burns could have been inflicted by heated bars, directly caused by the lightning stroke, rather than by the secondary fire caused by the electrical current through the trolley pole.

Upon the entire record we have little difficulty in arriving at the conclusion that there was no evidence to go to the jury from which there could be any reasonable inference that the plaintiff was burned because of the overcrowded condition of the car which prevented ‘her escape from the burning partition, rather than because of the direct and instantaneous result of the stroke of lightning. Indeed, were we permitted to weigh the facts, we would conclude that the greater probabilities are that she was burned from the latter cause. "Where the facts in evidence point to only one probable explanation of an occurrence, a jury should not be asked to guess upon a thin chance that facts not in evidence might show a possible different explanation.

Respective counsel have argued completely various angles of the case in briefs which are models of what briefs should be. We have noted only the point which seems to us decisive.

For the reasons indicated we hold that the peremptory instruction of the trial court was proper and the judgment is affirmed.

Affirmed.

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


text:
    Mahler Textiles, Inc., Appellant, v. Andrew Woodka, Appellee.
    Gen. No. 32,821.

      Matohett, J., dissents.
    Heard in the first division of this court for the first district at the June term, 1928.
    Opinion filed January 21, 1929.
    Rehearing denied and supplemental opinion filed February 4, 1929.
    Ryan, Condon & Livingston, for appellant.
    Loucks, Eckert & Peterson, for appellee; W. W. Patterson, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff, bringing suit on an alleged guaranty executed by defendant, upon trial by the court suffered an adverse finding with judgment that it take nothing, from which it appeals.

The decision of the case involves virtually only a construction of letters. Plaintiff was engaged in the business of selling and distributing cotton piece goods in the city of Chicago and the Baby Betty Apron Company of Chicago was one of its customers, manufacturing aprons and other wearing apparel, using cotton piece goods sold by plaintiff. Prior to August 11,1926, plaintiff was having difficulty in collecting money due it from the Apron Company which was not keeping its promises with reference to payment. Thereupon plaintiff wrote the defendant as follows:

“August 11, 1926.
“Mr. Andrew Woodka,
South Bend, Indiana.
Dear Sir: As you no doubt already know we have done considerable business with the Baby Betty Apron Company. The account of this concern on our books is now all paid up.
“Inasmuch as they have undergone a change in their financial structure, we should like very much to have an expression from you concerning the future payment policy of this concern and also a statement as to their present financial condition.
“It is only fair that we have the above information so that we can with intelligence determine a line of credit that would be consistent.
“If it were only a matter of a few hundred dollars we would -not bother you at all, but it seems we have an opportunity to figure with them on merchandise that will possibly run up into $5,000 or $10,000. Will you kindly advise?
Yours very truly,
MM/SBM Mahler Textiles, Inc.”
To this defendant replied:
“South Bend, Indiana,
P. O. Box #744 Aug. 13, 1926.
“Mahler Textiles, Inc.
Chicago, Illinois.
Gentlemen:
“Your letter of Aug. 11th received and contents noted. It is true that the Baby Betty Apron Company has undergone a change in their financial structure and the writer is back of this concern with sufficient •finances to carry on in a satisfactory manner with sources of supply of raw material.
“This is being done, however, with the distinct understanding that all purchases by the Baby Betty Apron Company must be personally 0. K.’d by the writer béfore being filled.
“Invoices must be sent out in duplicate; one copy to . the Betty Apron Company and one copy to:
Mr. Andrew W. Woodka,
P. 0. Box #744,
South Bend, Indiana.
‘ ‘ Trusting that contents of this letter will be of value to you and that you will comply with request contained therein, I remain
Yours very truly,
ES:AB . A. Woodka.”

Relying on this letter plaintiff thereafter shipped to the Baby Betty Apron Company on certain invoices a considerable amount of merchandise. All purchases were personally 0. K.’d by defendant before being filled and invoices were sent in duplicate, one copy to the Baby Betty Apron Company and one copy to defendant. In other words, the conditions stipulated in the defendant’s letter of August 13 were followed. October 23, 1926, the Apron Company went into bankruptcy, and having paid two small dividends there was a balance due on merchandise shipped of $1,496.55, which plaintiff seeks to recover in this action, alleging that the words of defendant used in his letter of August 13 constitute a guaranty, while defendant contends that it is merely a representation as to the advancement of money by defendant to the Apron Company and does not impose the obligation of a guarantor.

It is a well-established principle of law that noj particular. form or expression is necessary to create a guaranty.

“Any language or expression which, under the circumstances attending the transaction, may be construed as binding the guarantor to answer for another’s debt or default is sufficient, and it is not even necessary that the. word *guaranty’ should be used.” 28 C. J. 911, sec. 42.

“Guaranties are seldom, if ever, framed in the same language, and whether a particular transaction constitutes a guaranty must be determined by its particular terms and by the surrounding circumstances.” 12 R. C. L. p. 1055, sec. 3.

Numerous cases have been presented supporting the respective contentions of the parties, but, as would be expected, no case construing the precise instant language is cited. The case nearest in point is Illinois Surety Co. v. Munro, 289 Ill. 570, where the defendant wrote:

“This will introduce Mr. Edward F. Rice, who desires to get a cost bond in the Federal court, and this firm will stand back of any obligation which Mr. Rice may incur in this behalf.”

This language was held to be a guaranty. In Wendnag el v. Schiavone, 203 Ill. App. 385, it was held that placing the initials “O. K.” with the name of defendant bound him as a guarantor.

It is also a principle that, if there is anything doubtful in the construction of a contract, the conduct of the parties and their manner of treating it and all the circumstances may be resorted to for the purpose of ascertaining its meaning. Home Nat. Bank of Chicago v. Waterman, 30 Ill. App. 535. In Exchange Nat. Bank of Spokane v. Pontages, 74 Wash. 481, the telegram of the defendant requested the plaintiff bank to renew a note with the statement, “I will arrange things satisfactory to them upon my return.” This was held to constitute a guaranty. Somewhat similar words were used in McCauley v. Cross (Tex. Civ. App.), 111 S. W. 790. In Miami County Nat. Bank v. Goldberg, 133 Wis. 175, a father wrote requesting the bank to permit his son to make overdrafts on the bank, saying, “Hope you will accommodate him and me also.” This was construed to be a guaranty. See also Goldring v. Thompson, 58 Fla. 248; Acorn Brass Mfg. Co. v. Gilmore, 142 Ill. App. 567. A contract of guaranty should be construed as favorably to the creditor as other written contracts. Taussig v. Reid, 145 Ill. 488; Swisher v. Deermg, 204 Ill. 203.

As opposed to these cases we have Eaton v.Mayo, 118 Mass. 141, where the defendant wrote to the plaintiff: “Let M. have what goods he may want on four months and he will pay as usual”; held, not a guaranty. Also Crooks v. Propp, 32 Misc. 309, 66 N. Y. Supp. 753, which involved a letter recommending a proposed purchaser and saying that any favors would be appreciated by the writer; held, not a guaranty.

Plaintiff was refusing to sell goods in the future to the Apron Company unless it should receive some assurance that it would be paid. Plaintiff’s letter says that it would not take up the matter with defendant if only a few hundred dollars were involved, but did so because the merchandise might run up to five or ten thousand dollars. To this defendant’s reply is that the Apron Company has made a change in its financial structure “and the writer is back of this concern with sufficient finances to carry on in a satisfactory manner with sources of supply of raw material.” One of the sources of supply of. raw material was the plaintiff. The writer stipulates, however, that certain things must be done by the seller as a condition to his backing the Apron Company in a way satisfactory to the seller. These conditions are that all purchases must be personally 0. K’d by defendant before being filled and duplicate invoices must be sent out, one to the Apron Company and one to the defendant at P. 0. Box #744, South Bend, Indiana. Then, the letter adds: “Trusting that contents of this letter will be of value to you and that you will comply with request contained there-. in, I remain, Yours very truly, A. Woodka.”

It is difficult to construe this letter in any other way than as a guaranty. It is only in this way that all of the language can be given meaning. To construe it as merely a representation that defendant was financially interested in the Apron Company neutralizes the conditions specified therein. Defendant would be financially interested whether such conditions were complied with or not. The reasonable construction is that defendant would guarantee the payment of such orders as he approved when the invoices passed through his hands. It is also a reasonable inference that, if defendant had refused to O. K. the purchases from plaintiff, plaintiff would have refused to ship the same. It was the approval and confirmation of the defendant upon which plaintiff relied. The subsequent acts of the parties indicate that plaintiff accepted the letter of August 13 as defendant’s guaranty of the account and plaintiff fully complied with the conditions therein laid down.

On October 5, which was shortly before the Apron Company went into bankruptcy, plaintiff wrote defendant calling attention to the fact that the account showed $1,800 due plaintiff and requested a remittance from defendant of $800 before shipping further goods. Defendant argues that this indicates that plaintiff did not rely on any guaranty of the defendant. We do not see any inconsistency in this request for a payment on account and reliance on the guaranty. Plaintiff was not bound to extend unlimited credit and might through precaution ask for a payment on account.

For the reasons indicated we hold that the finding of the trial court was erroneous and the judgment is therefore reversed and judgment will be entered in this court against the defendant for $1,496.55.

Reversed and judgment here against defendant for $1,496.55.

O’Connor, P. J., concurs.

Matohett, J., dissents.

Supplemental Opinion Upon Petition for Rehearing.

In plaintiff’s statement of facts in his brief it was stated that there was a balance due plaintiff of $1,496.55. Defendant in his statement did not dispute or deny this. Under Rule 19 of this court such a statement may be taken as accurate unless the opponent points out the inaccuracy. Therefore, following this rule, we took the plaintiff’s statement of the amount due as accurate and entered judgment accordingly. Iii his petition for rehearing defendant for the first time calls our attention to the testimony of plaintiff’s bookkeeper that the balance due is $1,241.87, and this seems to be the correct amount.

We therefore modify our opinion and judgment by changing the amount stated to be due and the judgment from $1,496.55 to $1,241.87; and as there are no material issues of fact made by the pleadings, the sole question being the construction of the letters, judgment is accordingly entered in this court.

Reversed and judgment here against defendant for $1,241.87.


text:
    Gregory T. Van Meter, Administrator of the Estate of Michael O’Rourke, Deceased, Appellant, v. Fred C. Gurney et al. Perry E. DeForest, Appellee.
    Gen. No. 32,932.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed January 21, 1929.
    James L. Bynum, G. Edwin Mitchell and Werner H. Sommers, for appellant.

      Peden, Kahn & Murphy, for appellee; David Silbert, Frank E. Gettleman and Gerald Ryan, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Perry E. DeForest, one of the defendants, appellee here, filed his petition in the superior court asking that a capias issued on an unpaid judgment against him he quashed and that the clerk of the superior court be ordered to satisfy the judgment in full. Plaintiff filed a demurrer to the petition, which was overruled. Plaintiff appeals from the order of the court granting the prayer of the petition.

The question presented is, Does the payment by one of two joint judgment debtors of a part of the judgment, under an agreement with the plaintiff not to release the other debtor, satisfy the entire judgment so as to release both judgment debtors?

Plaintiff recovered a judgment in an action in tort against both defendants — Fred C. Gurney and Perry E. DeForest — in the sum of $9,360, which was affirmed by this court. (240 Ill. App; 165.) DeForest’s petition alleges that, while the said cause was pending in the Supreme Court of Illinois, his codefendant, Gurney, paid plaintiff the sum of $7,000 under an agreement in writing in which the plaintiff released and discharged said Gurney from all rights of action, claims and demands which he had against him on said judgment. It was further recited that the agreement should be considered only “as a covenant not to sue, or to enforce the said judgment, or to take out execution on said judgment as against the said Fred C. Gurney.” Also:

“It is further expressly understood and agreed that nothing herein contained shall in any way tend to release or discharge, or shall in any way be construed as releasing or discharging Perry E. DeForrest, the other obligor and party to the said judgment, from the said judgment rendered in the said cause hereinabove described, or from any liability under the said judgment, and it is understood and agreed that the said judgment shall remain in full force and effect as against the said Perry E. DeForrest for the unpaid balance of Two Thousand Three Hundred Sixty ($2,360.00) Dollars, plus interest and costs, and I do hereby expressly reserve the right to proceed against the said Perry E. DeForrest under the said judgment, and to prosecute the same as to said unpaid balance of Two Thousand Three Hundred Sixty ($2,360.00) Dollars, plus interest and costs, in like manner as if this agreement had not been entered into, and to collect the said balance of said judgment, Two Thousand Three Hundred Sixty ($2,360.00) Dollars, plus interest and costs thereon from the said Perry E. DeForrest. ’ ’

There was also other language in the agreement to the effect that the acceptance by plaintiff of $7,000 should be considered “as part payment only of the said judgment, and not in any way as an accord and satisfaction or release of the said judgment, only as to said Fred C. Gurney.”

The trial court applied the rule that the release of one or two joint tort-feasors operates as a release of all (Rice v. Webster, 18 Ill. 331), and that language in such a release reserving the right to pursue the co-defendant for the balance of a judgment is, in law, of no effect; that the release operates as a general and unqualified discharge. Petroyeanis v. Pirola, 205 Ill. App. 310.

Confining our consideration to the effect of such an agreement on joint judgment debtors and not as to claims against joint tort-feasors, we are of the opinion that the decided weight of authority favors the enforcement of the agreement of the parties if the language is clear and unambiguous. It clearly appears from the written instrument that it was the intention of the parties thereto to release only one of the judgment debtors and to reserve the right to proceed to collect the balance of, the judgment from the other judgment debtor. The courts must give effect to such intention. It has been so held in Parmelee v. Lawrence, 44 Ill. 405; Nickerson v. Suplee, 174 Ill. App. 136 (certiorari denied); Wallace v. Armstrong, 236 Ill. App. 457; People ex rel. Lamoreaux v. City of Chicago, 243 Ill. App. 623.

It is argued that, because the judgment' arises out of an action in tort, the rule as to a release of one joint tort-feasor must prevail. It does not follow. The claim in tort is merged into the judgment which is a debt, and where there is an agreement to release one joint debtor, the creditor reserving his right against the other, such agreements have been almost universally construed so as to effectuate the intention of the parties. 34 Cyc. 1035. It requires some artificiality in reasoning to avoid giving effect to the intention of the parties in the instant case, where this intention is expressed as clearly as language is capable of expression.

We do not consider Rice v. Webster, 18 Ill. 331, or Petroyeanis v. Pirola, 205 Ill. App. 310, as controlling. The former case was in effect overruled in Parmelee v. Lawrence, 44 Ill. 405. The Petroyeanis case was a creditor’s bill; the opinion gives a very meager statement as to the agreement said to be a covenant not to sue and the decision did not necessarily turn upon the instant point. In any event, the decided weight of authority is as above indicated.

We hold that the petition fails to set forth facts which justified the relief prayed for; that the demurrer should have been sustained and the petition dismissed. The orders of April 19, 1928, are therefore reversed and the cause is remanded to the superior court with directions to enter an order sustaining the demurrer and dismissing the petition.

Beversed and remanded with directions.

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


text:
    Jacob H. Jaffe, Appellant, v. Joseph H. Goldner and S. J. Rissman, Appellees.
    Gen. No. 32,957.
    Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed January 21, 1929.
    Rehearing denied and opinion slightly modified February 4, 1929.
    Alfred M. Loeser, for appellant.
    Jacobson, Merrick & Latter, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit to recover $2,500 under the Blue Sky Law, Cahill’s St. ch. 32, If 254. The court instructed the jury to find against the plaintiff. He appeals from the judgment.

September 19, 1925, plaintiff paid defendants $2,500 for five units in a trust estate formed and promoted by defendants which consisted of land in Markham, Illinois, At this time defendants did not have title to the property but thereafter, in November, secured deeds and November 17, 1925, conveyed the property to the Union Bank of Chicago, as trustee, in trust for the use and benefit of plaintiff and other unit holders. Defendants agreed to prepare a trust agreement and issue certificates to the unit holders evidencing an interest in the trust estate, but failed to do so and instead delivered to the plaintiff a declaration of trust executed by the Union Bank of Chicago, as trustee, which is in the usual form of a deed of trust reciting that it had taken title to the property in question and would deal with it as directed by a certain percentage of the unit holders.

Plaintiff contends that the deed of trust was a security coming under Class “D” of the Blue Sky Law, Cahill’s St. ch. 32, fí 260. It is conceded that no statement was filed by the defendants with the secretary of state, as required by the act. Counsel for plaintiff has discussed various sections of this statute with citations of a considerable number of cases, but counsel for defendants states the point in controversy thus:

“There is no question that the sale proven by the plaintiff in this case is of a ‘security’ within the meaning of said Act. Whether it be a ‘participation certificate,’ ‘a certificate of a share of interest,’ ‘a certificate evidencing share of or interest in a trust estate or association,’ appellees (defendants) do not claim that the sale in this case as shown by the plaintiff’s evidence is not a sale of a security under the provisions of this Act, but they do claim that the securities were a Class A security, being issued by the Union Bank of Chicago, which under the appellant’s (plaintiff’s) evidence was proven to be a trust company organized under the laws of the State of Illinois.”

And again: “If the plaintiff proved that it (the security) was either a Class D or a Class C security, he made out a prima facie case,”

Assuming this statement presents the only point which we are called upon to decide, we have little difficulty in arriving at the conclusion that the security in question comes under Class D, as contended for by plaintiff, and not under Class A, as contended for by defendants.

Cahill’s St. ch. 32, ff 256, provides:

“(1) Securities, the inherent qualities of which assure their sale and disposition without the perpetration of fraud, which shall be known as securities in Class ‘A’.”

Cahill’s St. ch. 32, U 257, provides that Class “A” securities are those:

“Issued by any National Bank, or by any State bank or trust company of this State.”

Cahill’s St. ch. 32, ff 261, provides that all securities other than those falling within Classes A, B and C, respectively, shall be known as securities in Class D.

Defendants’ position rests solely on the fact that the deed of trust, a copy of which was received by plaintiff, was executed and issued by the Union Bank of Chicago, a regularly organized State bank or trust company of Illinois. When we refer to Cahill’s St. ch. 32, If 255, of the act, we find that the word “securities” is defined as: “Any certificate, contract or instrument whatsoever, representing or constituting evidence of, or secured by, title to or interest in, or any lien or charge upon, the capital or any property or assets of the issuer thereof.” Securities are generally defined as written assurances for the return or repayment of money or evidences of indebtedness. 37 C. J. 275; State v. WMteaker, 118 Ore. 656. It would seem obvious, then, that, when the act refers to a security issued by a bank, it means a security which is a lien or charge upon the bank or its property or assets. In Stewart v. Brady, 300 Ill. 425, the purpose of exempting securities issued by banks and trust companies from the operation of the Blue Sky Law was stated as follows:

“The banks and other organizations named are all under Federal or State supervision. The legislature might well believe that because of their character, financial responsibility and methods of doing business, and of the public supervision and inspection of them, no necessity existed for requiring further guaranties.”

A mere reading of the deed of trust shows that it represented no assets of the bank nor any of its money or property. The bank only held the naked title to the land with the agreement in its capacity, as trustee, to convey as it might be directed and to disburse the money received to the unit holders. It had no more interest in the body of the trust than it would have in an estate in which it was acting as trustee or executor under the will. The document specifically provides:

“That the trustee shall not be required to enter into any personal obligation or liability in dealing with said land or to make itself liable for any damages, costs, expenses, fines or penalties.” ,

There is point in the suggestion that to give legal sanction to defendants’ plan would permit anyone to evade the provisions of the Blue Sky Law by conveying title to property, either real, personal or imaginary, to a bank as trustee and have the bank issue a series of declarations of trust. It would be doing violence to reason and every sense of fairness to classify such certificates under Class A, which the act defines as securities “the inherent qualities of which assure their sale and disposition without the perpetration of fraud.”

Plaintiff was entitled to recover the amount he paid. Cahill’s St. ch. 32, Tí 290.

The only question to determine is one of law, namely, the construction of the deed of trust with reference to its classification under the Securities Act, Cahill’s St. ch. 32, Ü 254 et seq., and the pleadings present no other question for determination. There is no dispute as to the facts. Under such circumstances we are warranted in reversing without remanding. Povlich v. Glodich, 311 Ill. 149; Sherriff v. Kromer, 232 Ill. App. 589. The judgment of the municipal court is reversed and judgment for the plaintiff against the defendants is entered in this court for the sum of $2,500.

Reversed and judgment here for plaintiff for $2,500.

0 ’Connor, P, J,, and Matchett, J,, concur.


text:
    Steven Ivanhoe, Appellee, v. The Buda Company, Appellant.
    Gen. No. 32,977.

      Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed January 21, 1929.

      Dent, Dobyns & Freeman, for appellant.
    Joseph A. Weber, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendant appeals from a judgment for $8,796.05 entered upon a verdict in an action to recover damages which the plaintiff claims to have suffered from the alleged fraud and deceit of the defendant. This case has previously been before this court. 247 Ill. App. 336. One phase of the controversy has also been.before the Supreme Court. 306 Ill. 188.

Repeating very briefly the facts, plaintiff asserts that while employed by defendant he received injuries from an electric shock on January 5, 1917. He filed a claim with the industrial commission which was carried by the defendant to the Supreme Court where • the judgment of the circuit, court was reversed on the ground that the claim had not been filed within the time required by the statute. He thereafter brought the instant action, alleging that he was damaged by the fraud and deceit "of the defendant in representing to him that his claim had been filed in apt time with the commission, when the contrary was the fact. The question of fraud and deceit has been hotly contested upon both trials, as was also the question as to the extent and character of plaintiff’s injuries. As there must be another trial, we do not comment in detail upon this evidence except to say that no doctor testified that plaintiff was permanently totally disabled.

• In the opinion heretofore filed in this ease it was held error to introduce in evidence the report of the industrial commission for the reason, among others, that “the Supreme Court in setting aside the award held that the industrial commission was without jurisdiction, and therefore the proceeding before the commission was without warrant of law, and obviously the finding of the commission was not competent evidence of any fact.” That conclusion must be considered as the law of the case. Upon the present trial, in response to a question by the court, the attorney for the plaintiff stated the findings of the industrial commission in the presence of the jury. This was objected to and a motion made that it be stricken and the jury instructed to disregard it. The court did instruct the jury that the statement had no probative effect and should not be received in the light of evidence — “I merely asked for it and you will not consider that unless further instructed.” This did not cure the error. The findings of the industrial commission were thus brought to the attention of the jury and it is evident from the amount of the present verdict that the jury took these findings as the basis for arriving at its verdict. Indeed, counsel for the plaintiff, in response to an inquiry from this court as to how such verdict was arrived at, stated that the jury used the findings of the industrial commission. Furthermore, the instruction of the court to the jury was ambiguous when he told it, “You will not consider that unless further instructed.” As it was in fact further instructed, the jury might interpret this as a direction to consider the findings of the commission.

We think it was error to permit the attorney to read to the jury what was said to be Dr. Wiggleworth’s mortality tables. The attorney was not sworn and his statement to the jury as to the plaintiff’s expectancy was improper. As we held in the prior case, the real question was as to how much the plaintiff is actually out of pocket by reason of the alleged fraud and deceit of the defendant if proven. The jury should have been guided in arriving at this amount by the provisions of the Workmen’s Compensation Law.

We think defendant should have been permitted to show that the plaintiff’s sister suffered from epilepsy, as an expert had testified that heredity is the cause in a great many cases of epilepsy. Dillman v. McDaniel, 222 Ill. 276; Martin v. Beatty, 254 Ill. 615.

Plaintiff had testified that he worked at The Fair store a short time. Defendant should have been allowed to show the length of time he was there employed. In addition to inaccuracies in the instructions there was very serious error as to their physical appearance. Inspection shows that some of them were so interlined and marked as to be almost unintelligible even to one accustomed to studying legal documents. To a layman they would be completely unintelligible. The giving of such instructions has been condemned. Harris v. Schlink, 200 Ill. App. 202; McGuire v. North Breeze Coal & Mining Co., 179 Ill. App. 592.

Defendant claims that recovery is barred by the former adjudication before the industrial commission. We have already passed upon this point in our previous opinion.

Upon the next trial, if the record is substantially the same as at present, and assuming that the jury should find with plaintiff upon his allegations of fraud and deceit and that there was any disability caused by the injury, and should also find, which seems to be proved upon the present record, that he was partially employed thereafter, the jury should be instructed that the basis of its verdict should be the award which plaintiff would be entitled to under the Workmen’s Compensation Act classified as permanently partially disabled. On this basis, upon the present record, provided plaintiff is entitled to recover anything, the verdict should not have been for less than $1,185.17 nor for more than $3,500.

For the reasons above indicated the judgment is reversed and the cause remanded.

B,eversed and remanded.

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


author: Mr. Justice Matchett

text:
    David M. Zolla and Theodore Zolla, Appellees, v. The Employers Liability Assurance Corporation, Ltd., of London, England, Appellant.
    Gen. No. 32,779.
    Heard in the first division of this court for the first district at the June term, 1928.
    Opinion filed January 21, 1929.
    Rehearing denied February 4, 1929.
    Winston, Strawn & Shaw and John Clark Baker, for appellant; John D. Black and Charles J. Calderini, of counsel.
    John A. Bloomingston, for appellees.
   Mr. Justice Matchett

delivered the opinion of the court.

This appeal is by the defendant from a judgment in the sum of $3,000.33 which was entered upon the finding of the court.

The facts were stipulated. Plaintiff, David M. Zoila, was the owner of an automobile, and he procured from the defendant insurance company a policy for indemnity against damages on account of accidents in its use, maintenance and operation,

While this policy was in force on June 3, 1921, an accident in which this automobile was involved occurred at Twenty-Sixth Street and Princeton Avenue in the City of Chicago. The automobile was at that time being driven by Theodore Zoila, the son of David, for the father and with his consent, and unaccompanied by any adult person. At that time Theodore lacked four months of being 17 years of age.

Suit was brought against David M. Zoila by one Prank Gentile, claiming damages on account of injuries sustained in this accident. Notice having immediately been given to the defendant at the time of the happening of the accident, plaintiff requested the defendant here to defend the suit brought in the superior court, which it refused to do, alleging that it was not obligated or liable because of a condition in the policy, as follows:

‘ ‘ This policy does not cover as regards any automobile under any of the following conditions:
“(1) While being operated or used by any person contrary to law as to age, or any person under the age. of sixteen (16) years, where no statute restricts the age.”

Thereafter plaintiffs defended the suit brought by Gentile, a verdict was returned in favor of Gentile, a new trial granted, whereupon a settlement was made. The sum of $1,200 for releases and other sums necessarily expended in defending the suit were paid. There is no controversy as to the amount of damages here, provided the defendant is in fact liable under the terms of the policy.

At the times mentioned an ordinance of the City of Chicago provided:

“It shall be unlawful for any person who is under sixteen years of age at any time to operate any motor vehicle or motorcycle on any street, alley or public place in the city; and it stall be unlawful for any person who is under eighteen years of age, unless accompanied by parent, guardian or other adult person, to so operate such vehicle . . .”

At the close of the evidence, the defendant asked the court to hold as propositions of law that plaintiffs were not entitled to recover; that the policy did not cover the accident to Frank Gentile because at the time thereof the automobile was being operated and used by Theodore Zoila contrary to law as to age; that the ordinance of the City of Chicago was a competent ordinance and not in conflict with section 31 of the Motor Vehicles Act of 1919, Cahill’s St. ch. 95a, ff 32, which provides that no person shall operate or drive a motor vehicle who is under 15 years of age, unless such person is accompanied by a duly licensed chauffeur or the owner of the motor vehicle being operated. Each of these propositions of law was refused by the court.

The briefs of the parties to this cause argue at length with numerous citations of authority the question as to whether the ordinance of the City of Chicago upon which the defendant relies is void as being inconsistent with section 31 of the Motor Vehicles Act. However, we do not understand that question to be necessary to a decision of the case. On the contrary, we think the controlling question on this record is whether it was the intention of the parties to the contract of insurance that the policy should cover accidents happening when the automobile was being driven by one of an age forbidden by ordinance of the municipality wherein the accident happened, although the driver was of an age at which he would be permitted to drive by statute of the State in which the policy was issued. In other words, the controlling question here is, What was the intention of the parties? In deciding that question it is of course proper to remember the nature of this policy; that it is an insurance contract prepared by an insurance company and therefore should be strictly construed against that company. In Abt v. National Surety Co., 230 Ill. App. 242, the court said:

Contracts of insurance, where ambiguous or uncertain in meaning, are to be construed most strictly against the insurance company, but where there is no ambiguity in the terms of the insurance contract; neither party can be favored in its construction, and if the stipulations are such as the parties might lawfully make, it is the duty of the court to enforce them.”

Applying this rule of construction, should the phrase in the policy, “contrary to law,” be construed so as to include a municipal ordinance? The defendant cites a number of Illinois cases in each of which the validity of a certain ordinance was involved where the Supreme Court has said in substance that a valid ordinance of a municipality has the force of law within the municipality by which it is enacted. These cases do not give any assistance in answering the question arising upon this record. We assume the ordinance here considered is valid.

Defendant also cites Royal Indemnity Co. v. Schwarts (Tex. Civ. App.), 172 S. W. 581, where a somewhat similar question was raised. The court there stated that the stipulation in the policy protected the insurance company from liability if there was in fact a valid ordinance against boys under the age of 18 years operating an automobile on the streets. However, the ordinance was found to be in fact invalid; hence the statement was merely obiter. Further, it was not at all justified by the authority cited, namely, Aetna Life Ins. Co. v. Tyler Box & Lumber Mfg. Co. (Tex. Civ. App.), 149 S. W. 283. Morrison v. Royal Indemnity Co., 180 App. Div. 709,167 N. Y. Supp. 732, and Wagoner v. Fidelity & Casualty Co., 215 App. Div. 170, 213 N. Y. Supp. 188, are also cited but are not in point, since in each of them the construction of the State statute rather than any municipal ordinance was involved.

The precise question, however, has been passed on in Guenther v. United States Fidelity & Guaranty Co., in an opinion handed down November 17, 1927, by the United States District Court for the Northern District of Ohio, Eastern Division, and not yet reported. The court there stated that the question to be considered was:

“ ... whether the ordinance of Lakewood, where the accident occurred, is a law fixing an age limit, within the meaning of the condition above quoted, of the insurance policy.”

The court further stated:

“In my opinion, a municipal ordinance is not a law within the proper interpretation and construction of said condition of the policy. No principle of law is better settled than that covenants and conditions in an insurance policy, exempting an insurer from liability, are to be strictly construed against the insurer. If the language of a covenant or condition exempting the insurer from liability is susceptible of two constructions or'meanings, that will be adopted which is most favorable to the insured. The expression ‘by law’ is at least susceptible of two constructions. It may mean or be fully satisfied by limiting it to a law enacted by the Legislature of a State. Ordinarily, when one speaks of the ‘law,’ that is what is meant. One thus speaking, has in mind a rule of conduct of uniform and general application prescribed by the supreme law-making body of some sovereignty. Ordinarily, when one speaks of a law, one does not have in mind ordinances, by-laws, or regulations of a municipality.”

We agree with the reasoning of that opinion, and as further pointed out therein we think if it had been the intention of the insurance company that the insured would understand the policy might become void when contrary to the provisions of any valid city ordinance, it would have so stated in the policy.

It is not unusual in these days for the owners to make trips across the continent in automobiles. Of this the public generally has knowledge. It can hardly be supposed it was the intention of the parties that the contract of insurance should be made dependent for its validity upon the provisions of the different ordinances of the hundreds of municipalities through which the motor vehicle would probably be driven. As has been suggested, an insurance policy should not be construed in such a way as to make possible one interpretation by the insurance solicitor and another by the insurance adjuster.

For the reasons indicated the judgment of the trial court is affirmed.

Affirmed.

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


text:
    Anton Petersen, Appellant, v. Slauf Manufacturing Company, Appellee.
    Gen. No. 32,861.

      Heard in the first division of this court for the first district at the' June term, 1928.
    Opinion filed January 21, 1929.
    Rehearing denied February 4, 1929.
    John Taylor Booz, for appellant.
    Max C. Liss, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

This is an appeal by the plaintiff from a judgment of nil capiat entered upon the finding of the court. The suit was upon a lease dated May 5,1927, whereby plaintiff, as lessor, demised to defendant as lessee certain premises described as the second floor of the building known as 420-426 Armour Street, the cottage, yard and shed (except space for one automobile in said shed) known as 418 Armour Street and covered yard space in front of engine room and back of loading space and driveway at 426 Armour Street, for a term beginning August 1, 1927, and ending April 30, 1934. The lease provided that the demised premises should be used for the business of the defendant, which was that of woodturning. It was covenanted and agreed that the party of the second part “has examined and knows the condition of said premises, and has received said premises in good order and repair, and will keep the same in a clean and neat condition, and . . . will restore said demised premises to the party of the first part in as good condition as when entered upon by the party of the second part; loss occasioned by the burning of the building containing said premises and ordinary wear excepted. ’ ’ The rental for the month of August, 1927, was paid at the time of executing the lease.

Attached to the lease was a typewritten rider, in and by which the lessor agreed to make certain repairs. The defendant thereafter contended (and the proof tends to show) that it was the intention that most of these repairs should be made - prior to the time when defendant would have the right to enter into possession of the premises, and further, that these repairs were not made within that time, although plaintiff was notified in writing by defendant to do so, whereupon defendant refused to accept the premises and refused to pay the rent for September. Plaintiff then, under a power contained in the lease, confessed judgment for the rent for September, amounting to $380., On motion of defendant supported by affidavit this judgment was afterwards set aside and a .trial upon the merits allowed by the court with the result as heretofore stated.

The defendant has urged here for reversal that no affidavit of merits was filed. The record shows that leave was given to file an'affidavit of merits and that the cause was tried by both parties on the theory that the affidavit (in substance the same as that submitted in support of the motion to vacate) had been filed, and such an affidavit nunc pro tunc has since been filed by leave of the trial court. The contention of defendant, based upon the theory that no affidavit was filed, is therefore without merit. People v. Chicago, B. & Q. R. Co., 316 Ill. 482.

As heretofore stated, the defense interposed was that plaintiff had failed to make the repairs as promised in the rider attached to the lease, which were necessary to the enjoyment and use of the premises for the purpose for which they were rented, although plaintiff was often requested and at length notified in writing so to do. The controlling question in the case therefore is whether the defendant had a right to abandon the lease and refuse to take possession of the premises.

The court having found the facts in favor of the defendant (which finding, after an examination of the evidence, we are not able to say was manifestly wrong), the question to be decided narrows itself down to the proposition of whether the failure of a lessor to make repairs as agreed prior to the beginning of the term of a lease constitutes such a violation thereof as will release the lessee from his covenant to pay rent.

The plaintiff contends that the covenant to repair and the covenant to pay rent are independent; that if a lessee agrees to pay rent in consideration of the demise alone and not in consideration of the devise and some other covenant, this is a circumstance tending strongly to establish an independent covenant and the making of the repairs is not a condition precedent to the liability for the payment of the rent, and that if such a covenant is'violated the remedy of the lessee is either an action for damages or by recoupment. Such is the general rule as laid down in Rubens v. Hill, 213 Ill. 523, and other cases, on all of which plaintiff relies.

In Rubens v. Hill, supra, however, it appeared that the lessee actually took possession of and occupied the premises, and in that respect we think the case is distinguishable from the one presented by this record.

The opinion in that case recognizes this distinction and quotes the following statement from Wright v. Lattin, 38 Ill. 293, with apparent approval:

“If he (the landlord) covenant to repair before the term commences, it may he the tenant might refuse to enter upon the term until the repairs were made, but having entered upon the term and received possession, he cannot abandon the lease and refuse to pay rent for the breach of any other covenant, except for quiet enjoyment. If the landlord fail to repair according to his covenant, the tenant may recoup the amount from the rent, or may sue upon the covenant.”

The opinion in that case further states:

“In the case at bar, the appellee covenanted to do certain things before the term of the lease began, and, while the appellant might have refused to enter upon the term until those things were done, yet inasmuch as he did enter upon the term and took possession and kept possession until the termination of the lease on October 15, 1902, he cannot refuse to pay rent for the failure of the landlord to do the things, which he agreed to do before the1 commencement of the term. Appellant, while refusing to pay rent, did not abandon the lease.”

The question of whether a particular covenant in a lease on the part of. a landlord to make repairs prior to the beginning of the term is a condition precedent (like any other contract) involves simply a question of determining from the writing and proper evidence which may have been received, what the intention of the parties was. If it was- intended it should be a condition precedent, a failure to comply therewith would justify an abandonment of the lease and the rescission of it on the part of the lessee; on the other hand, if it was intended it should not be a condition precedent, then the failure to make the repairs would not justify a rescission of the lease or a refusal to pay the rent. If the repairs to' be made are, of such a character that the failure to make them would be equivalent to an actual or constructive eviction, then whether the covenant amounts to a condition precedent or not, the authorities are clear that such failure would justify a rescission and abandonment of the lease at the election of the lessee. Gibbons v. Hoefeld, 299 Ill. 455.

The principal complaint here is (as shown by the written notice) that plaintiff failed to repair the roof of the demised premises, knowing that the business of woodturning, which defendant was to conduct upon the premises, required the use of kiln-dried lumber and that it would be practically impossible to conduct the business upon the premises in the condition the same were on the first day of August at the beginning of the lease.

We do not think it necessary to decide, however, whether the failure to repair the roof in this respect would amount to a constructive eviction. We think on principle it may be laid down as a general rule that where a landlord demises premises for a known use on the part of the lessee and the lessor and lessee covenant that repairs of a substantial nature shall be made prior to the beginning of the term, it must be held to be the intention of the parties that the provision for repairs shall be construed to be a condition precedent rather than an independent covenant, and that a failure on the part of the lessor to keep such promise will justify an abandonment and rescission of the lease.. Such a rule would seem to be very reasonable where, as here, the lease contains a provision to the effect that the lessee having gone into possession acknowledges that he has received the premises in good repair. While no Illinois case has been called to our attention which is exactly in point, the views herein expressed seem to have been applied by the Supreme Court of Massachusetts in Papanastos v. Heller, 227 Mass. 74, where a plaintiff recovered rent paid under a lease in which the defendant lessor had agreed to “fix up the demised premises above the store in good satisfactory condition,” which the parties understood to mean that the work would be done before the beginning of the lease, but which the lessor failed to do. The court said that, considering the language in the light of the facts and circumstances, the agreement could not be considered as the usual repair covenant; that the judge was warranted in concluding that it was the intention of the parties that the repair of the premises should be a condition precedent to the vesting of the estate in the lessees, and that consequently the lessor’s failure of performance justified the lessees’ rescinding the contract.

In Poulos v. Skrekas, 110 Neb. 296, 193 N. W. 703, the Supreme Court of Nebraska held that unreasonable delay in making repairs to premises leased for a confectionery store justified a court of equity in canceling the lease at the suit of the lessee. On the authority of these cases and Rubens v. Hill, supra, we hold the covenant to repair was in this case a condition precedent.

The judgment is affirmed.

Affirmed.

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


text:
    Wilbert Sutter, by Charles Sutter, Appellee, v. Fred Hartman, Trading as Fred Hartman Commission Company, Appellant.
    Gen. No. 32,919.

      Heard in the first division of this court for the first district at the October term, 1928.
    Opinion filed January 21, 1929.
    Cassels, Potter & Bentley, for appellant; Kenneth B. Hawkins, of counsel.
    Jerome Hall, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

In the trial court this was an action on the case for personal injuries. There was a trial by jury, a verdict for plaintiff in the sum of $2,500, a denial of motions for a new trial and in arrest, and judgment on the verdict.

There is practically no conflict in the evidence upon material points. Plaintiff, a boy then eight years of age, was injured in or near a garage of defendant at 2860 Lincoln Avenue in Chicago on June 4, 1926, as a result of being struck by one of the doors of defendant’s garage which fell at that time under the circumstances hereinafter related.

The declaration alleged negligence in failing to keep the door in proper repair or to maintain the same in that condition. There was a plea of the general issue and a special plea denying ownership and control.

There were motions by the defendant at the close of plaintiff’s evidence and again at the close of all the evidence for an instructed verdict in his favor, which were denied, and it is urged that the court erred in denying these motions; that the undisputed evidence fails to show that the defendant was negligent, and further that the alleged negligence was not the proximate cause of the injury sustained by plaintiff. It is further urged that the court erred in denying defendant’s motion to withdraw a juror on account of improper testimony of a witness for plaintiff with reference to an insurance claim adjuster indicating that defendant was covered by liability insurance. It is also urged that the court errqd in refusing to give instructions requested by defendant.

The material facts appear to be that defendant conducted a fruit-and vegetable commission business in the City of Chicago at 2860 Lincoln Avenue, a public highway extending northwest and southeast. He owned and occupied the premises. This' property, which fronted on Lincoln Avenue, extended west to Herndon Street, another public highway running north and south. West of Herndon Street were switch tracks of the Chicago and Northwestern Railroad. On the rear or west portion of these preinises and directly back of the store in which defendant’s business was conducted was a one-story brick garage in which defendant was accustomed to keep four delivery trucks used by him in his business. Defendant also owned three and a half feet of land adjoining and extending south from the south wall of this garage tó a public alley which extended east and west and which was paved with concrete. The entrance to the garage was from the alley by an automobile doorway. At this entrance there were two doors hung on rollers that ran along a track on the inside of the south wall of the garage. The doors when closed came together at the center of the entrance. The doors were of wood with glass windows in the upper half and each door weighed about 350 pounds.

On the evening of June 4th one of defendant’s chauffeurs while backing his truck into the garage struck the west door near the top, bending the roller and the track in which it ran to such an extent that the chauffeur was unable to slide the door shut. With the help of a neighbor he pushed this west door along the flo'or of the garage until it was shut and then closed the east door. They then placed the- top of the west door against the track on the inside of the south wall so that the bottom part of the door extended towards the north about four or five inches and rested on the floor of the garage. They then braced the door with a 10-foot rung ladder, the top of the ladder being placed against a cleat which was formed by the frame surrounding the 'window panes, and the bottom part of the ladder rested on the floor a few feet towards the center of it. They testified without contradiction that they tried and tested the door and left the garage by another and smaller entrance.

At the time this occurred there were no children playing in the alley, although it was not unusual for children to play there. Children came in quite large numbers a little later and were playing in the alley, which was a double one. About eight o’clock one Prendergast, who was a watchman for the Central Watch Service, Inc., passed that way and noticed an opening between the garage doors. There had been a number of burglaries in the neighborhood; Prendergast was suspicious and called a policeman named Sullivan. In all this he acted without any authority from the defendant. Prendergast and Sullivan undertook to investigate the situation at the garage. They pushed open the east door and entered, found nothing wrong and went away. Prendergast then telephoned his company and as directed by it returned to the garage with Sullivan. By this time the children were playing in the alley, having been attracted to the garage by the uniform of the policeman. They gathered about the garage doorway. Prendergast and Sullivan turned on the lights and again examined the garage. Sullivan then left. Thereafter Prendergast (acting without directions from anyone) took the ladder away from the west door and placed it against the wall of the garage. A moment later the west door fell towards the north. Prendergast, who was looking in another direction, heard the cry of plaintiff, who had been struck by the door, a part of it resting upon his leg, the femur of which was broken.

There is some conflict in the evidence as to whether plaintiff was on defendant’s premises or in the alley at the time he was struck by the door. He was taken to the hospital for treatment ánd the evidence tends to show that he has fully recovered from his injury.

While other questions are argued quite at length, upon an examination of the record we conclude that the controlling question in the case is whether defendant was guilty of negligence which proximately caused the injury plaintiff sustained. The leading authority in this State on the question of proximate cause is Seith v. Commonwealth Electric Co., 241 Ill. 252. In that case a live wire of the defendant electric company fell between the sidewalk and the curb of the street, and under circumstances such as would have resulted in no injury to anyone. The wire was struck by a policeman with his club and thrown upon the plaintiff who was standing upon the sidewalk, and he was thereby severely injured. The court held that the negligence of the defendant was not the proximate cause of the injury of plaintiff. It was there in substance said that in order that negligence might be the proximate cause of an injury it was not necessary that it should be either the sole cause of it or the last or nearest cause to it; that it might be negligence which concurred with some other cause acting at the same time and which in combination with it caused the injury; further, that if the alleged negligent act set in motion a chain of circumstances and operated on them in a continuous sequence “unbroken by any new or independent cause,” the cause would be proximate within the established rule; that the question is not to be determined by the existence or nonexistence of intervening events, but by the character and nature of such events and the natural connection between the original act of negligence and the injurious consequences. It was said:

“To constitute proximate cause the injury must be the natural and probable consequence of the negligence, and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence. It is not necessary that the person guilty of a negligent act or omission might have foreseen the precise form of the injury, but when it occurs it must appear that it was a natural and probable consequence of his negligence.”

It was further held that negligence which did nothing more than furnish a condition that made an injury possible by the subsequent independent act of a third person was not the proximate cause of the injury.

Plaintiff calls our attention to the undoubted rule of law that what is the proximate cause of an injury is ordinarily a question of fact which should be submitted to the jury, and cites a line of cases beginning with Illinois Cent. R. Co. v. Siler, 229 Ill. 390, and ending with Phillabaum v. Lake Erie & W. R. Co., 315 Ill. 131. That is the unquestioned rule where there is any evidence from which a jury can find that the alleged negligence was the cause of the injury for which a plaintiff sues, but where there is no evidence from which a jury can make such a finding and where, as here, there is no conflict in the evidence, the question becomes one of law for the court. Curran v. Chicago & W. I. R. Co., 289 Ill. 111.

If we assume in this case that defendant’s chauffeur was guilty of some act or omission amounting to negligence in connection with the manner in which the ladder was placed against the door, we are nevertheless unable to see how that act or omission can be said to be the proximate cause of the injury which happened to this boy. It was not the act of the chauffeur in putting the ladder against the door but the subsequent act of Prendergast in removing the ladder from the door that caused it to fall. Moreover, the actions of the chauffeur and of Prendergast were not concurrent. On the contrary, Prendergast’s actions were subsequent to, independent of and entirely disconnected with the placing of the ladder against .the door. The act of the chauffeur might perhaps be held to have created a condition which rendered the subsequent act of Prendergast possible, but all the cases hold that that is not sufficient. Again, could any jury reasonably say that a person in the exercise of reasonable care and caution would have probably foreseen that a watchman who was not in the service of an owner would come at a later time, would call a policeman and after the policeman departed would negligently remove the brace from the door? It would require considerable imagination to foresee that these or similar events would follow.

We conclude, therefore,- that the instruction to find for the defendant should have been given by the trial court because there was no evidence from which a jury could reasonably find defendant guilty of negligence which proximately caused the injury of plaintiff.

The' judgment is therefore' reversed.

Reversed.

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