text:
    The People of the State of Illinois ex rel. Frances E. Langan, Appellee, v. J. C. Hansen et al., Appellants.
    Gen. No. 33,037.
    Opinion filed March 26, 1929.

      Samuel A. Ettelson, Corporation Counsel, for appellants; George F. Mulligan, Assistant Corporation Counsel, of counsel.
    William McKinley and Paul E. Price, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

In a mandamus proceeding, after a trial without a jury on May 2,1928, the court ordered the writ to issue commanding the respondents (constituting the retirement board of the Policemen’s Annuity and Benefit Fund of the City of Chicago) “to forthwith pay to the relatrix, Frances E. Langan, a pension at the rate of $600 per year, payable in monthly installments of $50, . . . which the court finds the relatrix is entitled to receive pursuant to the provisions of the statutes in such cases made and provided, said payments to commence as of April 1, 1926, the date upon which payments to the relatrix were discontinued, and to continue the payment of said pension to the relatrix during her lifetime without interruption, all in accordance with the terms and conditions prescribed in the legislative act governing the Policemen’s Annuity and Benefit Fund of the City of Chicago; and ... to forthwith reinstate and restore the name of Frances E. Langan to the pension roll,” etc. From this order or judgment the present appeal is prosecuted.

In the petition, filed August 20, 1926, a portion of section 6 of the Police Pension Fund Act of 1887, as amended, Cahill’s St. ch. 24,1J 832, is set forth, as follows:

“Whenever any policeman shall die after ten years’ service and while still in the service of such city, village or town, as a policeman, leaving a widow, or child or children under the age of sixteen years, then upon satisfactory proof of such facts made to it, said board shall’ order and direct that a pension of one-half the salary, not exceeding the sum of $900, shall be paid to such widow, or if there be no widow, then to such child or children until they shall be sixteen years of age, said pension to cease upon marriage, as provided above.”

There also are set forth portions of sections 3, 5 and 12 of the Police Pension Fund Act of 1915, as amended, Cahill’s St. ch. 24, M 841, 843 and 850, applicable to cities of over 200,000 population, and portions of section 50 of the Policemen’s Annuity and Benefit Fund Act of 1921, Cahill’s St. ch. 24, TT 902, applicable to such cities, as follows:

“All claims for any annuity, pension or other benefit from such police pension fund which are pending or ungranted on the first day in the month of January of the first year after the year in which this Act shall come into force and effect in such city, shall be allowed or disallowed by said retirement board according to the provisions of” said act of 1915, “as subsequently amended, and those which shall be allowed shall be paid from the annuity and benefit fund herein provided for.”

The petition does not mention section 6 of said Act of 1921, as amended in 1925, Cahill’s St. ch. 24, ft 857, which is in part as follows:

“The retirement board shall have the power and it shall be the duty of said retirement board to: . . .
“(g) Consider and pass upon all applications for annuities, pensions, and benefits; authorize the payment of any annuity, pension, or benefit whether such annuity, pension or benefit was or shall be granted under and by virtue of the provisions of this Act, or under and by virtue of the provisions of any other Act or Acts relating to police pensions, heretofore in force and effect in such city and which have been superseded by this Act; inquire into the validity and legality of any grant of annuity, pension, or benefit paid from or payable out of the annuity and benefit fund herein provided for, whether such annuity, pension, or benefit shall have been or shall hereafter be granted in accordance with this Act or in accordance with any other Act or Acts relating to police pensions in force and effect in such city prior to the date upon which this Act shall have come in force and effect therein; increase, reduce, or suspend any annuity, pension, or benefit to be paid from the annuity and benefit fund herein provided for whenever such annuity, pension, or benefit or any part thereof was secured or granted, or the amount thereof fixed, as the result of misrepresentation, fraud, or error; provided, however, that no such annuity, pension, or benefit shall be reduced or suspended until the annuitant, pensioner, or beneficiary concerned shall first be notified of the proposed action and be given an opportunity to be heard concerning such proposed action.”

It is alleged in the petition in substance that the relatrix, a resident of Chicago, is the widow of Edwin P. Langan, who in his lifetime, and at the time of his death on September 4,1906, was a member of the regularly constituted police force of the City of Chicago; that when his death occurred the Act of 1887 as amended was in force; that he had been a “police operator” in the service of the city “continuously for more than ten (10) years and until the time of his death”; that at that time a controversy existed as to whether a police operator was within the law relating to the payment of police pensions; that thereafter the Supreme Court of Illinois decided that a police operator was in fact a policeman within the meaning of the law; that thereafter the relatrix made application to the trustees of the Police Pension Fund for a pension; that her application was denied upon the ground that her husband “had not served for more than ten (10) years” prior to Ms death; that thereafter she employed counsel for the purpose of commencing proceedings against the retirement board to compel the payment of back pensions in the amount of $7,950; that on December 8, 1922, the board compromised her claim and paid to her the sum of $6,500, and that but for this settlement she would have proceeded to enforce her claim in the courts; that the settlement and compromise “was a valid accord and satisfaction” of the differences then existing between her and the board; that the board placed her on the pension roll at $50 per month, and paid her a pension at that rate for more than three and one-half years; that at a meeting of the board, held on April 15, 1926, it revoked the pension as of April 1, 1926; that the settlement, effected in December, 1922, “was made in entire good faith and after the board was fully advised in the premises and cogmzant of all the facts and circumstances,” and that “no fraud, circumvention or undue influence of any kind or character was practiced upon the board”; that on April 15,1926, the board “was wholly without power or authority either to review its acts so taken at the meeting in December, 1922, or to revoke or repudiate the agreement so entered into as aforesaid”; and that since the revocation of the pension the relatrix has repeatedly demanded that the board restore her name to the pension roll as of April 1,1926, “from which it has wrongfully and unlawfully been removed,” but that the demands have been refused. The prayer of the petition is that a writ of mandamus issue, commanding the respondents (the present members of the retirement board) to pay to the relatrix a pension at the rate of $600 per year, being the amount to which she is entitled pursuant to the statutes and pursuant to said settlement agreement, etc.

On September 10, 1926, the respondents filed a plea alleging in substance that at the time Edwin P. Langan met Ms death he was not in the performance of any act or acts of police duty, and that Ms death was not the result of any injury received while in the performance of any act of police duty; that at the time of Ms death he had not rendered “10 years of service” in the police department of Chicago; that the award of a pension of $50 per month, granted to the relatrix on December 8, 1922, “was granted in error”; that a hearing was granted to the relatrix in the matter of the revocation of the pension on April 15, 1926; and that at its conclusion the grant of pension theretofore made was revoked by these respondents, pursuant to power given to them by said Act of 1921, as amended.

Two questions in our opinion are presented for decision upon the evidence contained in the present transcript, — one a question of fact and the other a question of law. They are in substance: (1) When Edwin P. Langan, husband of the relatrix, met his death while in the service of the police department of the city on September 4, 1906, had he been in such service for a period of 10 years or more? (2) Assuming that the evidence shows that he had not been in such service for such a period of time, had the members of the retirement board (respondents herein) the power and authority, under the evidence and by virtue of existing statutes, to revoke the pension previously granted to the relatrix on December 8, 1922?

It was conceded upon the trial that Langan was in the service of the police department from March 1, 1895, until April 18,1895; that he was appointed under civil service on October 16, 1897; and that he thereafter continued in the service, less a 10-days ’ suspension, until his death on September 4, 1906. The real issue of fact is whether he was in the service at any time from April 18, 1895, until Ms appointment under civil service on October 16,1897. If not, it is manifest that his total service in the department did not aggregate 10 years, but was a few days less than 9 years. In the draft order or judgment appealed from the court made the specific finding that “Edwin P. Langan became a member of the police force of said city on March 1, 1895, and thereafter continuously remained a member in good standing until the day of his death on September 4, 1906, thereby serving continuously in the police department of said city more than 10 years.” After a careful review of the testimony,, and of the documentary evidence bearing upon the question, we are of the opinion that the court’s finding is against the clear preponderance of the evidence.

For the relatrix, the elderly mother of Langan, Anna Gr. Langan, testified that he worked “continuously” in the police department as an operator from the time he first was appointed in March, 1895, until his death in September, 1906. Her entire testimony discloses that this statement was based largely upon what she had heard. Catherine Langan Bourke, sister of Langan and 9 years old in 1895, and a resident of Iowa at the time of the trial, testified by deposition to the same effect. Her cross-examination, however, disclosed that for a period of 6 weeks only in March and April, 1895, she carried her brother’s luncheons to him at the police station where he then was working, and that she had no knowledge as to where he worked after April, 1895, beyond what she had been told. Thomas J. Joyce, assistant chief operator in the police department since July, 1889, testified that Langan worked as a police operator in March and a part of April, 1895, but he stated upon cross-examination that “I don’t know of my own knowledge any period he served after April, 1895, until he took the civil service examination in 1897, without seeing the record.” Prior to the trial the relatrix served notice upon the respondents to produce (a) the original written application made by Langan in 1897, when he applied for a position as police operator under civil service; (b) the original written application, sworn to by the relatrix and filed with the board on November 29,1922, in which she asked that a pension be granted to her, etc.; (c) the minutes of the meeting of the board of December 8,1922, when a pension was granted to her, etc.; and (d) all “documentary evidence” that was considered by the board at the hearing in December, 1922, which resulted in the granting to the relatrix of a pension, etc. All these papers, documents and records were produced and tendered to the attorney for the relatrix who, after examining them, introduced all of them in evidence except the first mentioned (Langan’s application for position under civil service made in 1897). The minutes of the meeting of the board of December 8, 1922, are as follows: “The application of Frances Langan was presented; affidavits from Thomas J. Joyce, assistant chief operator, and others, that supplied time not on record of police department were read, on motion made, seconded and unanimously carried, application was granted and the attorney instructed to adjust amount of back pension.” Joyce’s affidavit, dated December 5,1922, stated in substance that Langan was employed as a police operator “prior to the enactment of the Civil Service Law”; and that “official records show” that Langan, prior to the Civil Service Law taking effect, was appointed on March 1, 1895, and “subsequently reappointed October 16, 1897, and in continuous service thereafter until his death.” No statement is made in the affidavit that Langan served after April 18,1895, and before he became a civil service appointee in October, 1897. The “other affidavits” referred to in the minutes are those of said Anna G-. Langan and Michael Langan, respectively mother and father of Langan, and were sworn to on November 29, 1922, and based upon “recollection, information and belief.” They were to the effect that Langan’s total length of service as a police operator was “12 years, 6 months and 3 days.” Another paper is the certificate of Si Mayer, secretary of the department of police, and sworn to by him on December 4, 1922, purporting to contain Langan’s record of service, as shown by the records of the department. It reads in part: “Date of appointment — March 1, 1895. .Date of termination of service — Sept. 4, 1906. Total length of service — 8 years, 11 months, 26 days. Cause of termination of service — Death.”

For the respondents, on the issue as to Langan’s total length of service, other records of the department were introduced, including Langan’s application, sworn to by him on May 20, 1897, for position under the Civil Service Law. It appears from answers to certain questions therein contained that he stated that he had worked as a police operator in 1895; that he had been “discharged” from the position in “May, 1895”; and that during the past year he had been “employed at A. H. Revell Co.” From the police “time roll” record for the month of April, 1895, it appeared that he had served 18 days and had been “discharged.” In the record, or “register of police dept, employees,” which was started in the fall of 1895 and referred to employees in the department on and after July 1, 1895, the name of Langan does not appear as an employee between July 1, 1895, and October, 1897. Thomas J. Joyce again was called as a witness, this time for respondents, and he testified in substance that he had examined all the time rolls of the department and could not find Langan’s name on any of the rolls of the five precincts, in which the relatrix claimed he had worked, subsequent to April, 1895, and until Langan began working under civil service. The testimony of other witnesses, called by respondents, tended to show that Langan was not working in the department between April, 1895, and October, 1897. From all the evidence we think it clearly appears that Langan’s total service in the police department of the city did not exceed 9 years.

As to the second question, we are of the opinion that, under the law and particularly under the above-quoted provisions of subsection (g) of section 6 of the Policemen’s Annuity and Benefit Fund Act of 1921, as amended in 1925, Cahill’s St. ch. 24, f[ 857, the retirement board had ample power and authority on April 15,1926, to revoke the pension previously granted to the relatrix on December 8, 1922. It is clear to us that the granting of the pension was brought about through “error.” A pension board has no powers beyond those given to it in the act creating it, and has neither the right nor the power to pay moneys to anyone not within the terms of the act fixing the conditions under which a pension is payable. (People v. Hanson, 330 Ill. 79; McCann v. Retirement Board, 331 Ill. 193.) When in April, 1926, the board ascertained that Langan had not served in the police department of the city for 10 years prior to his death, and that his widow because of this fact was not entitled to the pension which had previously been granted to her through error, it became and was the duty of the board to cease paying the pension to her. (Eddy v. Morgan, 216 Ill. 437, 449; O’Connor v. Board of Trustees, 155 Ill. App. 460, 479.) And, in the Hanson case, supra, it is decided that the doctrine of accord and satisfaction is not applicable to pension cases. The court in that case says (p. 91): “There can be no doubt that the settlement agreement of September, 1921, was not authorized by the law, and the board has no power to make an agreement contrary to the statute which would bind the trust fund under the board’s control by the rule applicable to accord and satisfaction in claims arising out of contracts or torts.”

Counsel for the relatrix urge that the present record does nqt affirmatively disclose that, before the board revoked the pension on April 15,1926, the relatrix was notified of the proposed action and given an opportunity to be heard, as provided in subsection (g) of section 6 of the Act of 1921, as amended. This point is raised for the first time in this Appellate Court and is without merit. It does not appear that such notice was not given. The presumption is that the board pursued the course pointed out by the statute and gave notice, etc. (Dragovich v. Iroquois Iron Co., 269 Ill. 478, 482; People v. Walsh, 96 Ill. 232, 252.)

Our conclusion is that the order or judgment of May 2, 1928, should be reversed and it is so ordered.

Reversed with finding of fact.

Scanlan and Barnes, JJ., concur.

Finding of fact. We find as a fact in this case that when Edwin P. Langan died on September 4, 1906, he had not been in the service of the police department of the City of Chicago, as a police operator, for a period of ten (10) years.


source: Caselaw Access Project

author: Mr. Justice Barnes

license: Public Domain

text:
    Eli Metcoff, Appellant, v. Adolph V. Dahlquist et al., Appellees.
    Gen. No. 33,025.

      Opinion filed March 26, 1929.
    Gallagher, Shulman & Abrams, for appellant.
    Bulkley, More, Poynton & Overmyer, for appellees.
   Mr. Justice Barnes

delivered the opinion of the court.

This appeal is from the dismissal of a bill for want of equity. The bill seeks to enjoin the violation of an alleged building line restriction in the erection of an apartment building on the southwest corner of Washtenaw avenue and Argyle street, Chicago, next to and north of complainant’s property.

The bill makes as defendants the owners of the building, Adplph V. Dahlquist and wife, the former owners of the subdivision in which the lots are situated, John E. Colnon and his wife, and other parties who were mere agents of the Dahlquists in the erection of the building.

John E. Colnon having died during the pendency of the suit the cause proceeded as to surviving defendants.

After the subdivision was laid out John E. Colnon and his wife became the owners thereof. The Dahlquists purchased several of the lots in said subdivision from them and erected buildings thereon which they sold and conveyed to other parties. When the suit was commenced the Colnons had conveyed all of the lots in said subdivision excepting lot 16, bl. 3.

Said subdivision was laid out in the form of a rectangle consisting of three blocks, numbered 1, 2 and 3, from east to west, bounded on the north by Argyle street, on the east by Rockwell street, and on the south by Ainslie street. Said lot 16, bl. 3, lies along its entire west boundary and is separated by an alley from the other 15 lots in said block which front east on Washtenaw avenue. The latter street and Taiman avenue run north and south through said subdivision, the former separating blocks 2 and 3, the latter, blocks 1 and 2, and parallel thereto runs an alley through the center of each of blocks 1 and 2. Said two blocks contain 30 lots each. In other words, on each side of the alleys dividing blocks 1 and 2 are 15 lots, and east of the west alley are the 15 lots fronting on Washtenaw avenue. Each of said 75 lots, except the southern tier along Ainslie' street, is 30 feet wide and about 125 feet long, and fronts either east or west on said north and south streets.

The particular property in question is lot 1, bl. 3, at the southwest corner of Argyle street and Washtenaw avenue, and the north 15 feet of adjoining lot 2 south of it owned by defendants Dahlquist and his wife, being the northwest corner of said subdivision. Complainant is the owner of the south 25 feet of lot 2, and the north 10 feet of lot 3 adjoining and south of lot 2. Said lots 1, 2 and 3, bl. 3, were purchased, part at one time and part at another, by the Dahlquists from the Colnons, and the deeds thereof contained the following restrictions:

“ (1). That no building used or designed to be used in whole or in part for any purpose other than family residence purposes for one or more families shall be built on said premises prior to July 1,1934, except private barn, garage or outbuilding, which may be erected as appurtenant to a dwelling, and not less than eighty feet from the front or street line of said premises.
“(2). That no part of any building except steps and cornice or roof projections shall be built within twenty feet of the front or street line of said premises prior to July 1,1934, except that bay windows, porches and sun parlors may extend ten feet nearer to said front or street line.
“(3). That no building except private barn, garage or outbuilding, shall be built within thirty feet of the rear or alley line of said premises prior to July 1,1934.
(4). That no building with exterior walls of wood shall be built on said premises prior to July 1, 1934.”

Complainant acquired title to his said property by deed dated April 21, 1923, from one Doggett and wife “subject to building restrictions of record,” and the Doggetts obtained their title thereto by deed dated February 1, 1923, from the Dahlquists subject to and specifying the same restrictions as are contained in the Colnon deed to the Dahlquists. When complainant purchased his property it had upon it a modern three-apartment brick building and a brick garage in the rear which had been erected by the Dahlquists in conformity with said described restrictions.

The bill is predicated upon the theory that there was a general scheme of restrictions binding upon all lot owners of said subdivision and that it was being violated in the erection of said building on said lot 1 by extending the same to the alley or westerly line of said lot instead of leaving space of not less than 30 feet between said line and the building, as provided for in the deed to the Dahlquists.

The master concluded from the testimony taken before him that there was no such general scheme, and recommended dismissal of the bill for want of equity. The court sustained the report and this appeal followed.

The controlling question is whether there was any such general scheme. If there was not, then it is unnecessary to consider the claims of conspiracy to nullify such restrictions or of a copartnership between the Dahlquists and Colnons. However, we do not think the evidence established either claim, and the master so found.

Complainant introduced deeds from the Colnons to purchasers, including the Dahlquists, containing such restrictions, and deeds from some of the purchasers containing them, some 60 odd, and evidence showing that buildings had been erected on many of said lots in conformity with such restrictions.

On the other hand defendants introduced various deeds from the Colnons and from the Dahlquists and other purchasers, about 25, that did not contain such restrictions or all of them, and also waivers or releases of the alley line restriction by the Colnons as to certain corner lots upon which buildings have been erected extending to the alley line.

Altogether there are some 80 odd exhibits, consisting mostly of deeds and of some photographs of buildings. We are of the opinion, however, that the question as to the intention to establish a general scheme must be determined mainly, if not entirely, from the instruments executed by the Colnons, who became owners of the entire subdivision after it had been platted without any building line restrictions whatever. That the Colnons were free and had a legal right to impose conditions or restrictions from any motive or to withhold the same cannot be doubted and is not questioned. (Hays v. St. Paul M. E. Church, 196 Ill. 633; Van Sant v. Rose, 260 Ill. 401, 405.) It does not appear that any such restrictions were imposed upon the subdivision either by the plat or by any'previous agreement or by any covenant in prior title deeds. And it does not appear that any of the conveyances made by the Colnons, or their successors, contained any covenant as to restrictions binding upon “the grantee, his heirs, executors, administrators and assigns, ’ ’ which is a covenant ‘1 running with the land. ’ ’ (Natural Products Co. v. Dolese & Shepard Co., 309 Ill. 230.) In some cases the deeds of subsequent owners contained such restrictions and others did not, but no such covenant.

We are not concerned here with the obligation of the Colnons to their grantees under their deeds containing such restrictions, but whether imposing them in some cases and not in others they established a general scheme for the benefit of all subsequent owners of land in said subdivision and binding upon one another.

We recognize, as contended by appellant, that the omission of restrictions in deeds executed by grantees who took title subject to them does not of itself affect or invalidate such restrictions (Wiegman v. Kusel, 270 Ill. 520), and that a slight variation or omission in the restrictions in some instances will not of itself affect the general plan of restrictions (Velie v. Richardson, 126 Minn. 334, 337; Harvey v. Rubin, 219 Mich. 307; Sargent v. Leonardi, 223 Mass. 556). But in the instant case the departures from such a general scheme were so many, and at a time when many of the lots remained unsold and unimproved, as to indicate the abandonment of the intention, if any,- by the Colnons to establish a general scheme.

So far as complainant is concerned he had or was chargeable with knowledge as to the extent restrictions were imposed in the subdivision before he purchased his property. Before purchasing he relied upon and made a personal search of the records of conveyances of lots in said subdivision, and received an opinion and guaranty of title referring to and putting him on inquiry as to such building restrictions. There were of record at that time two instruments executed by the Colnons releasing the alley line restriction as to lot 15 in the same block as complainant’s property, being the southwest corner of the subdivision, and also as to lot 1, block 1, the northeast corner of said subdivision, the latter instrument reciting that the restriction was inserted in the deed of such property “through error.” On both of these corners and also at the southeast corner of the subdivision were large apartment buildings (the latter not completed) extending to the alley line. Directly across the street from the apartment building on the southwest corner of the subdivision was another large apartment building that extended up to 15 feet from the alley line, as expressly provided for in the Colnon deed of the lot. The extension of these buildings to the alley line was visible to anyone and could not have escaped the notice of complainant when he purchased. Together with the record of such instruments they indicated an intention not to enforce the alley line restrictions at least on the corner lots. Complainant could not have been influenced by any such restriction on the Dahlquist corner north of him at the time he purchased. The title to that corner still stood in the Colnons, free from any specific restriction as to building lines until bought by Dahlquist some five months later. While the deed to him contained such restriction as to the alley line it was subsequently released by the Colnons, as they had done with respect to the other said corners. And it may be noted that the deed to complainant did not contain any specific restrictions, but was “subject to restrictions of record,” however that may be construed.

It appears that the Colnons conveyed lots 25 and 29, block 1, lots 8, 23 and 24, block 2, and lots 7 and 8, block 1, without any restrictions. It also appears that while they conveyed portions of other lots with the aforesaid restrictions they subsequently conveyed the remaining portions without them. This was the fact in conveyances of portions of lots 5, 6, 9,10,11,12 and 13 of block 3, and lots 13, 15, 18, 19, 20, 21, 26 and 27 of block 2. All of these deeds were filed of record during the years 1919, 1920 and 1921, some two years or more before complainant purchased. It thus appears that when he purchased there was not only of record a release of the alley line restrictions as to two corner lots, on which there were large apartment buildings extending to the alley line, and an instrument modifying the alley line restriction as to another corner, and another large apartment building started at the southeast corner of the subdivision which extended to the alley line, and that the're were deeds of portions of various lots in the other blocks without building restrictions, but that of the 15 lots already conveyed in block 3, where complainant’s property was situated, the Colnons had conveyed two entire lots and portions of seven others without any restrictions whatever, having a total frontage of 175 feet, a fraction of over 37 per cent of the total Washtenaw avenue frontage in block 3. These numerous departures from an alleged scheme, appearing as they do among the very earliest conveyances of the Colnons, disclose such a lack of uniformity as to indicate no intention to adopt a general scheme that would be binding on all of the Colnon grantees and their successors. It adds nothing, perhaps, to this state of the record to say that it also appears that in many conveyances of their grantees these restrictions were omitted or to note, as asserted by counsel for appellees, that counting the several instruments placed of record 40 per cent of them contained no such restrictions. '

We deem it unnecessary to go further into details or to discuss alleged representations of Dahlquist to complainant on which the latter predicates an estoppel to deny the right to enforce such restrictions against him. While the alleged representations were denied, yet if there was no general scheme, as claimed, that was binding on Dahlquist, there is little room for the assertion of the doctrine of estoppel, there being no privity of contract between complainant and the Dahlquists.

While the deeds from the Colnons of most of the lots, either in part or whole, contained such restrictions, yet in view of so many deeds without such restrictions, and the other facts above enumerated, we do not think the evidence was sufficient to show the establishment of a general scheme of building line restrictions binding or intended to be binding on all lot owners in the subdivision. Nor was .there in the Colnon deeds containing restrictions any covenant that they were to be imposed in all other deeds. It cannot, therefore, be said upon this state of facts that complainant has a clear right to enforce the alley line restriction against the Dahlquists or any of the defendants; or, in other words, that the Dahlquist lot was burdened with the restriction as to the alley line for the benefit of complainant’s lot. As has been frequently said when a fee is conveyed, limitations and restrictions upon the use of the property are not favored, and all doubts, as a general rule, are to be resolved against them. (Hays v. St. Paul M. E. Church, 196 Ill. 633; Loomis v. Collins, 272 Ill. 221; Curtis v. Rubin, 244 Ill. 88 ; Boylston v. Holmes, 276 Ill. 279; Labadie v. Morris, 303 Ill. 321.)

Cases where there were recorded plats designating the building line, or agreements of record binding all owners in the block or subdivision, or uniform restrictive covenants in all deeds from the original owner, are not pertinent to the facts and circumstances of this case. It would subserve no useful purpose to review them. Considering, as we do, that the facts in evidence are insufficient to show the establishment qf a general building scheme binding on all lot owners of the subdivision, their grantees and privies, and that the absence of the building restrictions from so many deeds destroyed the uniformity essential to establish a general plan (Clark v. McGee, 159 Ill. 518), and that where the right to enforce the restrictions is doubtful the doubt will be resolved against the restrictions, we think the court properly dismissed the bill for want of equity.

Affirmed.

Gridley, P. J., and S candan, J., concur.


text:
    Anna Krmicek, Appellant, v. Federal Life Insurance Company, Appellee.
    Gen. No. 33,112.

      Opinion filed March 26, 1929.
    J. M. Camelon and H. F. Chaveriat, for appellant.
    Loucks, Eckert & Peterson, for appellee; W. W. Patterson, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

This is an action in assumpsit brought by plaintiff as beneficiary against the defendant on an accident insurance policy for $7,500," and interest, for accidental death of plaintiff’s husband. A demurrer to the declaration was sustained, and plaintiff electing to stand by the same the cause was dismissed at plaintiff’s costs and she has appealed.

The policy is set out at length in the declaration. It contains the standard and optional standard provisions provided for by statute. Cahill’s St., ch. 73, lili 469, 470. One of said optional provisions reads as follows:

“20. The insurance under this policy shall not cover any person, under the age of......years nor over the age of......years. Any premium paid to the Company for any period not covered by this policy will be returned upon request.” Paragraph 470 (5).

The policy fixes the minimum and maximum years at 16 and-70 years, respectively, and “in consideration of the registration fee of one dollar ($1.00) paid by the insured” and other good and valuable considerations “and subject to the terms, conditions and limitations” thereinafter contained, insured the deceased “for a term of twelve (12) months” from the date of the policy, namely, March 6, 1925, against death by accidental means.

The declaration alleges that the death of the insured occurred on June 18,- 1925, from an accident two days earlier, that he was born June 13, 1855, and that at the time of the issue and delivery of the policy defendant knew his age and that he would become 70 years of age June 13, 1925.

Thus is presented the sole question whether the policy insured for a full year or only to the date the deceased became 70 years of age.

While appellant’s counsel directs attention to the recognized rule of liberal and favorable construction to the insured when the contract is ambiguous, no ambiguity is pointed out nor is there any in our opinion. Nor is the policy inconsistent on its face, for while the first contractual clause is headed “Age 69,” it nowhere appears in the policy when the insured became 69. For aught that appears to the contrary from the face of the policy he may have reached that age the day it was executed. Appellant’s contention that the policy insured the deceased for a full year rests entirely, therefore, upon the alleged knowledge of the insurer that the deceased would be beyond the prescribed age for insurance before the end of the year.

On the basis of such knowledge it is argued in effect that the optional provision above quoted - (1) was waived, and (2) that it is a general provision which, if found in conflict with the contractual clause of insurance for one year, must give way to the latter on the theory that a special provision will prevail over a general one.

We think there is no room for the application of either theory. In the first place, notwithstanding the allegation of defendant’s knowledge of the age of the insured at the time the policy was issued, it is at least doubtful whether in view of other provisions of the policy it is a material averment of which proof would be admissible. The second standard provision provides that “no statement made by the applicant for insurance not included herein . . . shall be used in any legal proceeding hereunder.” Paragraph 5 of the general provisions of the insurance policy provides that “it is understood and agreed that the application is not part of the contract except to determine the beneficiary.” It would seem, therefore, that proof of knowledge of the age of the insured by his application or his verbal statement would under such provisions be inadmissible, and proof from any other source equally so.

But whether proof of the averment of knowledge would be admissible or not, it is expressly provided in section 4 of the Act in question (If 470) that no policy shall be issued or delivered which contains any provision “relative to the age limits of the policy; unless such provisions which are hereby designated as optional standard provisions, shall be in the words and in the order in which they are hereinafter set forth.” The several enumerated provisions of the statute, including that above quoted, are contained in the policy.

It thus appears that the statute has prescribed the precise form and phraseology in which a provision “relative to the age limits of the policy” shall be set' forth in the policy, and the policy in question strictly conforms thereto. To exercise its privilege to limit the policy in respect to the age of the insured, the insurer was bound to do so in the very language, employed in the policy. The clause therefore is legal.

Must it necessarily follow, therefore, that the insurer waived this provision by insuring for the term of one year with knowledge that the insured would reach the maximum insurable age before the end of the year? We think not. In the contracting clause for the term of the insurance it is expressly stated that- it is subject to the terms, conditions and limitations thereinafter contained in the policy. One of such limitations is that above quoted relative to age. The two provisions, that for the term of the policy, and that qualifying or limiting it, must obviously be read together. It was so held in Metzger v. Ætna Ins. Co., 227 N. Y. 411, in construing a limitation in a policy for fire insurance for the term of one year which was limited by a subsequent risk clause, the court saying that the legality of the risk clause could not be questioned and had the insured read the policy he would have known the agreement he was entering into. The court said “express conditions within a policy terminating or forfeiting the insurance within the term prescribed in the policy are neither novel nor unusual.” It was there said that the limitation was a potential qualification of the expressed existence of the insurance through the term of one year.

If, therefore, as seems to have been the intendment, the term of insurance was qualified by the limitation . clause, then there is no ground for the theory of waiver.

Considering a somewhat similar policy in Wheeler v. United States Casualty Co., 71 N. J. L. 396, where waiver of such a limitation was pleaded in the declaration, the court held that the allegation could not change the construction of the policy previously given in 30 N. J. L. 370, where it held that the provision relative to age refers to the date of the accident and not to the date of the policy. It said that it was not a case of waiver of performance of conditions precedent by the assured and that the averment was not good as an estoppel. Appellant concedes that there is no room here for the doctrine of estoppel.

Approving such construction of the age limitation in 2 Cooley Ins. Briefs (2d Ed.), p. 1394, the author says that an accident policy reciting such a limitation terminates when the insured reaches the age prescribed therein. If this were not so, then as the policy provides for a renewal for one year defendant, in spite of such limitation and its manifest intendment, would be compelled to carry the risk until the insured was well upward of 71 years of age.

Appellant’s counsel concede that if the provision relates to the time of the accident then appellant’s case must fall, but cite to the contrary an opinion of the trial court in Moest v. Continental Casualty Co., 104 N. Y. Supp. 553 (affirmed by the Appellate Division of that court in 106 N. Y. Supp. without an opinion), and also Partridge v. Fidelity & Casualty Co., 207 N. Y. Supp. 502. The opinion in the former case rests upon the theory that the limitation clause is equally susceptible of being construed as relating to the date of the policy or the date of the accident and, therefore, was ambiguous, and being so it would be construed most strictly against the company. We have already said that we do not think there is any ambiguity in the language of the policy. If not, then it should receive the ordinary construction of any other contract. The decision in the Partridge case rests wholly on the ground of alleged inconsistency in the two provisions, that for the term of the policy, and that prescribing the limitation as to age. We have already said that we do not consider it a case of inconsistent provisions but rather where one is qualified by the other. As before said, on the face of the policy the two clauses are not inconsistent and the insurance clause is not only expressly made subject to the subsequent limitations of the policy including that relative to age, but there is express consistency in the provision for the return of “any premium paid to the insurer for any period not covered by this policy.” There is no claim that the insured was deceived in taking out the policy. He was, therefore, chargeable with knowledge of its limitations and the express provision in the contractual clause for the term of the policy that it was expressly subject to them. If, therefore, the limitation as to age must be given effect, there is no room for urging inconsistency between the two clauses or for the contention that the limitation clause must give way to that for the term of insurance.

Construing the policy as we do, we think the demurrer was properly sustained.

Affirmed.

G-ridlet, P. J., and ScanlAn, J., concur.


author: Mr. Justice Scanlan

text:
    Ida Lamar, Appellee, v. William M. Collins et al., Defendants. William M. Collins, Appellant.
    Gen. No. 33,007.

      Opinion filed March 26, 1929.
    D’Ancona & Pflaum and Edward W. Rawlins, for appellant.
    Urban A. Lavery and Leesman, Roemer & Schnell, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

In the superior court of Cook county, Ida Lamar, plaintiff, sued William M. Collins and Northwestern Lumber Company, a corporation, defendants, in an action in case. There was a trial before the court with a jury and a verdict was returned finding the defendant Collins guilty and assessing the plaintiff’s damages at the sum of $35,000. The defendant Northwestern Lumber Company was found not guilty. From a judgment entered on the verdict against him the defendant Collins appealed.

The plaintiff was a maid at the summer home of the defendant Collins, at Lake Forest, Illinois. She was injured on August 20, 1926, while riding in an automobile belonging to Collins and driven by his chauffeur, while she was being taken from the station at Lake Forest to the said home. At a certain point on the Waukegan road the automobile struck the rear end of a lumber “wagon” of the defendant Northwestern Lumber Company that was standing on the side of the road.

The first contention of the defendant Collins is that the court erred in refusing to instruct the jury, at the close of all the evidence, to find the defendant not guilty, because “the undisputed evidence shows that at the time of the happening of the accident the plaintiff and the chauffeur, Snyder, who was driving the automobile at the time of the said accident, were fellow-servants.”

The plaintiff was a second maid in the home of the defendant. Her regular duties were to wait on the table and to take care of the front part of the house. She also did part of the cooking when the cook had her day off or was on a vacation, or the defendant was without a cook. The plaintiff’s home was in Chicago, and it appears that when she went to work with the defendant, it was agreed that the defendant would bring her back and forth from the station, and pay her transportation to and from Chicago. Sometimes the son of the defendant took the plaintiff to and from the station. Snyder, in charge of the automobile at the time of the accident, was a chauffeur and mechanic, and had then been in the employ of the defendant about three or four weeks. He thus states his duties: “I took care of the cars, did the driving for Mr. and Mrs. Collins, and I took the servants and other employes, by order of Mrs. or Mr. Collins, to the depots on their off days. I never took any of the maids to picture shows. I went to the store, picked the groceries up and brought them back into the kitchen.” He further testified: “I got my meals in the main house, in the kitchen with the rest of the servants; that included Ida Lamar.” At the time of the accident the plaintiff was returning from her home in Chicago to the home of the defendant at Lake Forest, and she was not then on duty. She had never driven an automobile and knew nothing about the operation of one. She had ridden in the automobile, when Snyder was driving it, “about three times.”

In support of his present contention, the defendant has cited certain decisions from jurisdictions that follow the doctrine laid down by Chief Justice Parker in Farwell v. Boston & Worcester R. Corp., 4 Metc. (Mass.) 49. That case has been declared to be the basis of the existing common law of England and America on the “Fellow Servant Rule.” (12 Amer. & Eng. Encyc. of Law (2d Ed.) 898; Chicago & N. W. R. Co. v. Moranda, 93 Ill. 302, 309.) The said doctrine is that a master is not liable for injuries to his servant caused by the negligence of a fellow servant engaged in the same general business, where the master has furnished proper means for carrying on the work, and has used due care in the selection of servants. In Chicago & N. W. R. Co. v. Moranda, supra, our Supreme Court, in a celebrated opinion, refused to follow the Massachusetts doctrine and held that in order to constitute servants of the same master “fellow servants” within the rule of respondeat superior, it is not enough that they were engaged in doing parts of some work or in the promotion of some enterprise carried on by the master, not requiring co-operation, nor bringing the servants together, or into such personal relations that they could have exercised an influence one upon the other promotive of proper caution in respect of their mutual safety, — but it is essential either that they were actually co-operating at the time of the injury in the particular business in hand, or that their usual duties should bring them into habitual consociation, so that such proper caution would be likely to result. In a late case (Kaminsky v. Chicago Rys. Co., 286 Ill. 271, 277) the court thus states the rule:

“The established rule regarding fellow-servants, as laid down in Lyons v. Ryerson, 242 Ill. 409, is as follows : ‘It has long been the settled law of this State that the servants of a common master, to be co-employees so as to exempt the master from liability on account of injuries sustained by one resulting from the negligence of the other, must be directly co-operating with each other in a particular business as distinct from indirect co-operation of the general business of the master, or that their usual duties must bring them into habitual association so that they may exercise a mutual influence upon each other promotive of proper caution. — Hartley v. Chicago and Alton Railroad Co., 197 Ill. 440; Chicago and Eastern Illinois Railroad Co. v. White, 209 id. 124; Chicago and Alton Railroad Co. v. O’Brien, 155 id. 630; Chicago and Alton Railroad Co. v. Wise, 206 id. 453.’ ” (See also Thompson v. Northern Hotel Co., 256 Ill. 77, 84.) It is clear that the plaintiff and the chauffeur, Snyder, were not fellow servants under the first branch of the rule, as they were not co-operating with each other in any particular work at the time of the injury. The real question involved in the present contention is: Were the plaintiff and Snyder fellow servants under the second branch of the rule? “The question whether the servants of a common master are fellow-servants is usually a question of fact, and never becomes a question of law unless the facts proven show such relation so clearly to exist that all reasonable minds will readily agree that such is the relation of the servants of the common master to each other. (Duffy v. Kivilin, 195 Ill. 630; Spring Valley Coal Co. v. Patting, 210 id. 342; Missouri Malleable Iron Co. v. Dillon, 206 id. 145.) ” (Gathman v. City of Chicago, 236 Ill. 9, 15. See also Aldrich v. Illinois Cent. R. Co., 241 Ill. 402, 406-8; Lyons v. Ryerson & Son, supra, 242 Ill. 409, 414.) If there is reasonable doubt on the question it should go to the jury. (Linguist v. Hodges, 248 Ill. 491, 505.) After a careful consideration of the present contention, we are satisfied that the trial court did not err in refusing to hold, as a matter of law, that the plaintiff and the said chauffeur were fellow servants, and that he ruled correctly in submitting the question to the jury. The jury found, as a matter of fact, that they were not fellow servants and the defendant contends that “the verdict of the jury finding as it did that the plaintiff and the said chauffeur were not fellow-servants is clearly against the manifest weight of the evidence.” We find no merit in this contention. The trial court approved the finding of the jury and we concur in that action.

The defendant contends that “the court erred in striking out and excluding defendant Collins’ exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10, . . . ; and it also erred in striking out and excluding the testimony of the witness Ballantyne, and in striking out a portion of the testimony of the defendant.” The defendant argues that the plaintiff was not entitled to recover for the reason that at the time of the accident she and the defendant were working .under and bound by the provisions of the Workmen’s Compensation Act of this State and that the evidence excluded tended to prove that the plaintiff and defendant were bound by the said act.

Section 5 of the act, Cahill’s St. ch. 48, 205, so far as it is applicable to the instant contention, reads as follows: “The term ‘employee’ as used in this Act, shall be construed to mean: . . . Every person in the service of another under any contract of hire, express or implied, oral or written, . . . including aliens, and minors who are legally permitted to work under the laws of the State, who, for the purpose of this Act, shall be considered the same and have the same power to contract, receive payments and give quittances therefor, as adult employees, but not including any person who is not engaged in the usual course of the trade, business, profession or occupation of his employer; . . .” Was the plaintiff an employee to whom the act applied? The defendant testified: “I am in the restaurant business at 71 West Randolph street, Philip Henrici Company. I have about 350 employes in my business there. That includes different types of employes. The F. Edson White home was my home during the summer. . . . The Philip Henrici Company is a corporation, of which I am the president.” Under the plain language of the statute, it would seem clear that the plaintiff was not an employee to whom the act applied. In Eichholz v. Shaft, 166 Minn. 339, the court stated that the object of a Workmen’s Compensation Act was “to saddle the industries with the loss that resulted to the employees therein from accidental injuries received in the work. . . . Industries are carried on for profit, and it was felt that they should and could bear the loss from accidental injuries to the workmen engaged therein as part of their expenses.” In Grand Trunk Western Ry. Co. v. Industrial Commission, 291 Ill. 167, 174, in answer to the contention that the Compensation Act created liability without fault, the court said: “Such, a loss stands to the employee as his capital in trade. It is a loss arising out of the business in which he is em- . ployed, and, however it may be charged up, is an expense of the operation just as truly as the cost of repairing broken machinery or any other expense that ordinarily is paid by the employer. On grounds of natural justice the business should bear this charge.” In Berry Co. v. Industrial Commission (Raymond Brooks, defendant in error), 318 111. 312, Berry Company was engaged in the business of subdividing and selling real estate as agent for owners, and while preparing a certain farm for subdivision it was found expedient to tear down an old barn situated on the land. Brooks was hired to work on the barn, and in the course of his employment was injured, and he applied to the Industrial Commission for the adjustment of his claim under the' Compensation Act. Berry Company contended that Brooks, at the time of the accident, was not engaged in the usual course of the trade, business, profession or occupation of the company and was therefore not an employee within the meaning of the act. The Supreme Court sustained this contention. In Johnson v. Choate, 284 Ill. 214, 220, it is said: “The employer must be engaged in the occupation, enterprise or business, and therefore the building^ maintaining or repairing of a dwelling house, which is neither the occupation, enterprise or business of the owner, does not bring him within the act, nor does the building of a shed or other similar structure by or for a farmer come within the terms of the statute or the legislative intention. (Uphoff v. Industrial Board, 271 Ill. 312.) ” “The upkeep and care of a home for one’s self and family are not in the category of a trade, business, profession or occupation, as generally understood. A home is not established and maintained in the expectation of pecuniary gain. Such a venture is solely an expense. It therefore did not come within the original purpose of the act to include the home as an industry to be burdened with the accidental injuries to servants therein engaged. There is no reason why, if the housemaid is excluded, the charwoman, who might be engaged to come at stated times for a year to work in the home, but who does not live in the family, should be included in the act. Maintaining a home, whether in an apartment or in spacious grounds with separate quarters thereon for the servants employed in administering to the comforts of the family, does not come within the definition of the Workmen’s Compensation Act, however liberally construed, as being a part of the trade, business, profession or occupation of the employer. Nor is it an industry.” (Eichholz v. Shaft, supra.) In 1 Schneider’s Workmen’s Compensation Law (1922), pp. 65, 147, it is stated that domestic servants are excepted, either expressly or by implication, from all of the American Compensation Acts save that of New Jersey.' Under the Workmen’s Compensation Law of New York, as amended: “Any employer not carrying on one of the employments enumerated in this section, or who carrying on one of such employments has in his employ an employee not included within the term ‘employee’ as defined by section three of this chapter, and the employees of any such employer may, by their joint election, elect to become subject to the provisions of” the act. (See Caldana, v. Buezenburg, 200 N. Y. Supp. 468, 469.) This case, cited by the defendant, was governed by the above amendment and has no bearing upon the instant contention, as our act contains no such provision. After'a careful consideration of the present contention, we find no merit in it. The plaintiff did not seek in any way to come under the act, and she argues that “the plaintiff was an employee who could not be brought under the act by the election of her employer. But, even if she had been an employee who could, nevertheless, in this case the employer elected to bring only the chauffeur under the act. And, furthermore, even if she had been under the act, the injury she sustained was not sustained in the course of her employment.” In the view that we have taken of the instant contention it is not necessary for us to pass upon these points.

The defendant next contends that the court erred in instructing the jury that the plaintiff, at the time and place in question, was not under or subject to the terms of the Compensation Act. Our ruling as to the last contention, if it be correct, disposes of the instant one.

The defendant contends that the verdict “in regard to the question of defendant’s alleged negligence” is against the manifest weight of the evidence. This contention is without the slightest merit. The defendant concedes that during the ride from Lake Forest to the place of the accident “a very severe storm was in progress. The rain was pouring down, and the thunder and lightning was frequent, loud and prolonged.” A witness testified that it rained so hard that his motor started missing and he was compelled to pull off on the side of the road and stop. The defendant’s chauffeur testified that “it was raining, a real bad storm, could not see nothing. ... I couldn’t see either side and I couldn’t see over 50 feet ahead of me. ... It did not occur to me to stop and wait until I could see. I had orders.” As to the speed of the defendant’s auto: The plaintiff testified that it was driven very fast and that because of that fact and the severity of the storm she twice requested the chauffeur not to go so fast — to go slower, and that she said to him: “If you won’t go slower, stop the car and let me out.” One of the witnesses testified that “the noise of the automobile coming was just a continuous roar, . . . sounded like an aeroplane to me.” Before the collision the driver of the lumber “wagon” had stopped its machine, on account of the storm, on the right-hand side of the road, with the east or right-hand wheels of the “wagon” off the concrete portion of the road. When the defendant’s car struck the trailer of the lumber “wagon” it sounded like ‘ ‘ an awful crash. ’ ’ The lumber ‘ ‘ wagon ’ ’ had six wheels and consisted of a truck with four wheels and a trailer with two wheels. It had on it 2,500 to 2,800 square feet of lumber 25 feet long, fastened together and to the “wagon” by a steel chain, the links of which were about an inch in thickness. At the time of the accident the driver of the lumber “wagon” was in a farmhouse near by. After the collision it was found that the truck had been moved a distance of 25 feet and into a ditch on the side of the road. A part of it had been pushed into a fence and its front end was tipped up on a mail box. The steel chain was broken into pieces and “the lumber was all over the road.” Two pieces of lumber went through the cowl of the defendant’s car and bent the back of the front seat, and the plaintiff, who sat in the rear seat, was found “tangled up” in the lumber. She was “pinned in there” by the lumber and was unconscious. Defendant’s car, a heavy Rolls Royce automobile “was wrecked.” After striking the “wagon” it traveled at least 60 or 75 feet farther north and came to a stop against a tree on the left-hand, or opposite, side of the road. The chauffeur testified: “After hitting the truck I don’t know just how far I went before my car came to a stop; I steered it into the tree on the left-hand side of the road. I don’t know how far beyond the scene of the accident that was.” “After I hit it I turned off and went up into a tree. ... I tried to miss the truck and I turned my car, but I didn’t turn short enough.” “I had good brakes, . . . they were in satisfactory working order at the time.” The chauffeur testified that all of the wheels of the lumber “wagon” were on the concrete; that he did not hear the plaintiff say anything about the way he was driving; that when he saw the truck he was going between 20 and 25 miles an hour; that he could then have stopped the car before he got to the truck by stepping on the “service brakes alone,” “if I had seen it really.” We are satisfied, after a consideration of the evidence, that the testimony of the chauffeur, on any disputed question of fact, is entitled to little, if any, weight. The facts and circumstances of this case clearly show that the chauffeur was guilty of negligence of the grossest kind and that the accident was the natural consequence of his reckless driving.

The defendant next contends that the court erred in permitting the plaintiff to testify as to certain statements she made to the chauffeur before the happening of the accident. Plaintiff testified that she said to the chauffeur: “Please don’t go so fast”; and again: “Go slower,” and again:. “Please don’t go so fast. If you don’t, please stop the car and let me get out. I would rather walk.” The objection made to these statements was that they were self-serving and not a part of the res gestae, and not made in the presence of the defendant. It was necessary for the plaintiff to prove that at the time of the accident and just prior thereto she was in the exercise of ordinary care for her own safety. In Pienta v. Chicago City R. Co., 284 Ill. 246, 259, it was held that it was the duty of a passenger of a vehicle, where he has an opportunity to learn of approaching danger and avoid it, to warn the driver of the vehicle of such danger, as he has no right, because some one else is driving the vehicle, to omit reasonable and prudent efforts on his part to avoid the danger. In Opp v. Pryor, 294 Ill. 538, 547, it was held that it was the duty of the plaintiff, who was riding in an automobile, “to observe and avoid danger, if practicable, and to warn the driver.” (See also Grifenhan v. Chicago Rys. Co., 299 Ill. 590, 595.) In the recent case of Brown v. Yellow Cab Co., 251 Ill. App. 621, decided by this division of the court, we held that it was proper to allow a passenger in an automobile to testify that she cautioned the driver in reference to the speed. Under the circumstances of the instant case, had the plaintiff failed to caution the chauffeur, the defendant might then have argued with some force that she was not in the exercise of due care for her own safety. There is no merit in the present contention.

The defendant next contends that “the amount of the verdict and judgment is excessive.” The defendant concedes that “the injuries to the plaintiff were quite severe and that part of the injuries are probably permanent.” The plaintiff suffered a compound, com-minuted fracture of the cheek bone, running back across the occipital. The parts were separated three-quarters of an inch, so that “you could put your fingers down into the sinus of the bone. ’ ’ She had a complete fracture of the lower jawbone, which dropped down. A dentist was required to wire the teeth together to keep the parts of the broken jaw in place. It was necessary to pull a tooth before the fragments could be held together. She had a complete fracture of the middle third of the humerus of the right arm. This fracture refused to knit and it was found necessary to call a specialist in bone surgery, who performed two or three operations. First he attempted, with ivory pegs, to obtain a union, but f ailed. The arm was then put in a plaster cast and kept in it for five months, when it was found that there had been no bone formation. A piece of bone was then taken from the plaintiff’s leg and implanted into the ends of the fracture and her arm was “put into a metallic splint, a triangular splint with the arm held at about 45 degrees from the body, and the whole arm and shoulder bound in so there couldn’t be any possible movement.” This splint was kept on for about four months, during which time other efforts were made to produce a bony union. It was then found that there was no union. This condition is permanent, and the plaintiff, whose occupation requires the use of both arms, has what is sometimes called a “flail arm.” The plaintiff suffered other injuries than those we have mentioned, but we do not deem it necessary to refer to them. As the result of the injuries she underwent very great pain and suffering over a long period of time. The expenses incident to the treatment of her injuries were heavy. We are satisfied that the amount of the verdict is not excessive.

The defendant next contends that “the Court erred in overruling the motion of the defendant to withdraw a juror and call a new panel, because of conduct on the part of the plaintiff which was prejudicial to defendant.” At one point during the direct examination of the plaintiff the record shows that “the witness wept,” and that the court stated to the witness: “If you can’t control yourself I will have to suspend.” The defendant made no objection to this incident nor any reference to it. Later in the said examination the following occurred: “Mr. Eawlins (Attorney for the defendant) : She is wbeping again and I don’t think that is proper. The Court: The jurors may have a short recess. (Thereupon the jurors left the room, and the following occurred out of their presence and hearing): Mr. Eawlins: I move that because of this a juror be withdrawn and the case continued. Let the record show that on two occasions the witness wept on the stand.. My motion was to withdraw a juror because of that and call a new panel, which is denied — that a juror be withdrawn and a new panel called. Mr. Eoemer (Counsel for the plaintiff): I deny two, but she had tears in her eyes, but she was not weeping. The Court: (To Mr. Eoemer) You may make your statement, and (to Mr. Eawlins) you may make yours. Mr. Eawlins: I move at this time that because of this a juror be withdrawn and a new panel called. The Court: Motion denied.” The record is silent, save as to the statements of the counsel, as to the actual conduct of the plaintiff at that time. We may assume, however, from the admission of the counsel for the plaintiff, that at the time of the objection the plaintiff had tears in her eyes. The counsel for the defendant presumed to dictate what the record should show and he further presumed — and apparently desired — to have it show a denial of his motion, when the court had not passed upon it. When the court manifested a willingness to go into the question as to the actual conduct of the plaintiff, counsel for the defendant closed the incident with a formal motion. It is evident that he was not anxious to have a juror withdrawn. We find nothing in the record to indicate that the conduct of the plaintiff was intentional and for an improper motive, and it is not surprising that she, considering the terrible injuries she sustained, and the suffering she endured as a result of the same, should have shown emotion as she narrated incidents of the ride. In this enlightened country and under our system of universal education, jurors must be presumed to possess reason and judgment. The trial court saw the plaintiff and was in the best position to determine whether the act complained of called for the withdrawal of a juror. We are satisfied that the damages awarded are not excessive; and if we are correct in holding that the plaintiff was not a fellow servant of the chauffeur and was not bound by the Compensation Act, it follows that the verdict is a just one and that therefore the said incident complained of could not have prejudiced the rights of the defendant.

We have now considered all of the contentions raised by the defendant in his brief. In our opinion he has had a fair and impartial trial. The judgment of the superior court of Cook county is a just one and it should be and it is affirmed.

Affirmed.

G-ridley, P. J., and Barnes, J., concur.


text:
    The Harshaw, Fuller & Goodwin Company, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 33,079.

      Opinion filed March 26, 1929.
    Rehearing denied April 9, 1929.
    Fred H. Montgomery and Herbert J. Deany, for appellant; Vernon W. Foster, of counsel.
    Kremer, Branard & Hamer, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

This is an appeal by the defendant, Illinois Central Railroad Company, a corporation, from a judgment entered against it in the municipal court of the City of Chicago in favor of the plaintiff, The Harshaw, Fuller & G-oodwin Company, a corporation, for $3,950. The case was tried by the court with a jury. On a former trial a jury returned a verdict in favor of the defendant which was set aside by the trial court.

The suit was brought to recover the value of certain bags of poppy seed shipped by the plaintiff from Antwerp, Belgium, to New Orleans, and by the defendant transported by rail from New Orleans to Chicago.

The plaintiff in its statement of claim alleged that in pursuance of an agreement between it and the defendant company, the latter received from the ocean steamer at New Orleans the poppy seed and “issued its certain bill of lading to plaintiff acknowledging the receipt of said shipment of said poppy seed for transportation to Chicago, in good order and condition with the following exceptions: 11 bags torn and repaired; 40 bags damaged; 2 bags rust stained, but with contents in good condition”; and that “the defendant delivered said shipment of 300 bags of poppy seed to the plaintiff at Chicago in a damaged condition, to wit: that said bags and the contents thereof were wet, damp, moldy and rusty and as a result thereof said 300 bags of poppy seed became and were a total loss to the plaintiff”; and that “the value of said shipment of poppy seed at the time of arrival in Chicago, if in sound condition, amounted to the sum of $6,000. ’ ’

The defendant in its affidavit of merits averred, inter alia, that in consequence of storms and other sea troubles encountered by the ocean steamer, the poppy seed became and was damaged prior to the time it was delivered to the defendant for transportation; that the seed was not damaged by reason of any breach of contract or fault on the part of the defendant; that the bill of lading issued to the plaintiff by the defendant recited that the contents and the condition of the contents of the bags were unknown to the defendant.

The plaintiff proved that when the seed arrived in New Orleans 39 bags were more or less waterstained and damaged from ship-sweat and it did not claim compensation on account of these bags. The witness who gave this evidence further testified that he only examined the exterior of the other bags and that he knew nothing of the condition of the seed in those bags.

The defendant contends that the verdict of the jury and the judgment of the court are contrary to the weight’ of the evidence. This contention has been argued strenuously and with considerable force, but in the view that we have taken of this appeal we do not deem it necessary to pass upon the same. We feel impelled to state, however, that it is significant, that in spite of the fact that a number of years elapsed between the time of the shipment and the time of the trial, the plaintiff (save as to the 39 bags) failed to introduce any evidence as to the actual condition of the poppy seed at the time of the shipment from Antwerp, or at the time of the delivery to the defendant at New Orleans. While it was shown that the exterior of the “sound bags” was inspected, yet, so far as this record discloses, no one saw the seed in the “sound bags” from the time it left Antwerp until it was delivered to the plaintiff. In proving its- case the plaintiff relied, in a large measure, upon the bill of lading and a certain receipt given to the steamship company by the defendant at the time that the latter received the seed. Both the receipt and the bill of lading recite that the property was received “in apparent good order,” but the bill of lading further recites that the “contents and condition of contents of packages unknown.” It is undisputed that the defendant at the, time of the receipt of the seed did not open the “sound bags” and inspect the contents thereof, nor do we think it was incumbent upon it to do so. If such a burden were placed upon a railroad, it would make it practically impossible for it to handle its business, and harm and inconvenience to the shipper would likely result therefrom.

The defendant contends that the court erred in giving to the jury, at the instance of the plaintiff, the following instruction:

“The court instructs the jury that even though you should find from the evidence that the immediate or proximate cause of the injury or damage to the poppy seed in question was one for which the defendant would not be liable; yet, if you should further find from the evidence that said immediate cause was not the sole cause, but that some negligence of the defendant concurred in any degree in causing said injury or damage, then the defendant would be liable.”

This is a very bad and harmful instruction. It is subject to a number of just criticisms. A sufficient one is that the law is that the' defendant would only be responsible for such negligence as proximately contributed to bring about the damage, and the instruction is not in accord with this principle of law.

The defendant contends that the court erred in giving to the jury, at the instance of the plaintiff, the following instruction:

‘ ‘ The court instructs the jury that the bill of lading introduced in evidence in this case is prima facie evidence that the poppy seed was received by the defendant and was, at that time, in the condition therein stated; and if the defendant claims that it was not in such condition, it is incumbent upon the defendant to show this, and that it was deceived and defrauded when the bill of lading was signed.”

The plaintiff makes but a feeble answer to this contention. This instruction, in effect, told the jury that before the defendant could rebut the prima facie case made by the bill of lading as to the condition of the seed at the time the defendant received the same, it must show that it was deceived and defrauded when the bill of lading was signed. No question of fraud and deceit in the signing of the bill of lading was raised by the pleadings or by any evidence introduced by the defendant and to interject such a false issue was highly prejudicial to the defendant. The jury might well understand from the instruction that unless the defendant showed that it was deceived and defrauded when it signed the bill of lading, the plaintiff was entitled to recover. The instruction is also faulty in that it requires the defendant to show the condition of the seed at the time it received it. The jury could infer from the use of the word “show” that the defendant was required to “make manifest” or “make apparent or clear by evidence” or “demonstrate” the condition of the seed at the time it was received. Such a degree of proof is, of course, not required of the defendant. In any event, the instruction was very apt to confuse and mislead the jury.

The defendant has assigned and very forcefully argued a number of other alleged errors, but we do not deem it necessary to pass upon the same.

■ After a careful consideration of the record in this case, we are satisfied that the defendant has not had a fair and impartial trial, and the judgment of the municipal court of Chicago is reversed and the cause is remanded.

Reversed and remanded.

Gridley, P. J., and Barnes, J., concur.


author: Mr. Presiding Justice O’Connor

text:
    Chicago Smelting and Refining Corporation, Appellant, v. Thomas H. Sullivan, trading as United Electric Service Company, Appellee.
    Gen. No. 33,038.
    Opinion filed April 1, 1929.
    George F. Barrett and Charles V. Barrett, for appellant; James R. Quinn and Edward L. Hoyer, of counsel.
    Sims, Godman & Stransky, for appellee; Franklin J. Stransky, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit against defendant to recover $1,415.86 which it claimed was due for goods sold and delivered. Defendant did not contest plaintiff’s claim but interposed a set-off based upon three promissory notes for $500 each, each dated September 21, 1923, due in 30, 60 and 90 days, respectively, after date, each signed by Chicago Smelting and Refining Corporation by L. C. Robinson and payable to the Arthur Storage Battery Supply Company; the three notes were indorsed by the Battery Company and by H. L. and L. C. Robinson. The case was heard on a former appeal and is reported in 246 111. App. 538. Upon that trial plaintiff had judgment, and defendant being defeated in his claim of set-off appealed. The judgment was reversed mainly for the reason that the court erred in excluding evidence offered by defendant to sustain his claim of set-off. We there said, pp. 543, 544:

“The minutes of the meeting of the corporation indicated that the corporation not only took over the assets of the partnership but also the liabilities as shown by another paper, defendant’s Exhibit I, which was excluded by the court but is in the record for identification. This purports to show not only the assets taken over but also the liabilities assumed, which included one item, ‘Notes payable $74,048.88.’ Standing alone and unexplained, this would be a sufficient basis for the jury reasonably to infer that it included the notes delivered to the defendant and which are the subject of the set-off.”

We then discussed the law involved and continuing said:

“This may be obiter dictum, as upon the second trial, as we have indicated, there may be competent evidence showing an express agreement by the corporation to assume the liabilities of the partnership.”

We do not here set forth the facts because they appear in our former opinion; but we think it is sufficient to say that the notes mentioned in defendant’s set-off were signed in the partnership name, viz., Chicago Smelting and Refining Corporation by L. C. Robinson, one of the two partners. Afterwards, about October 31, 1923, plaintiff, Chicago Smelting and Refining . Corporation, was incorporated under the laws of the State of Illinois and at that time practically all of the assets of the partnership were owned by Hyman Fein-' berg, one of the partners. He proposed to turn over to the new corporation “the assets and liabilities” of the old partnership and agreed to guarantee the payment of the legal obligations of the old partnership. This proposition was made upon consideration that the corporation issue to him 998 shares of its capital stock. The proposition was accepted. Robinson, who signed the notes, had nothing to do with the organization of the corporation and had no interest in it, he having theretofore disappeared. The following April defendant, Sullivan, bought merchandise from the plaintiff corporation, and not having paid for the same plaintiff brought this suit.

On the question of set-off plaintiff took the position that Robinson, who executed the notes, was unauthorized to do so; that the partnership, Chicago Smelting and Refining Corporation, did not owe any sum to the Arthur Storage Battery Supply Company, the payee named in the notes, and had never done business with it. Other contentions were made by plaintiff tending to show that the notes were invalid. A further point was made that the plaintiff corporation was not liable in any event because when the assets of the partnership were turned over to the corporation there was an express agreement entered intp between the partnership and the corporation whereby the corporation assumed and agreed to pay certain specified notes of the partnership amounting in the aggregate to $74,048.88; and that the notes in question are not the notes which plaintiff assumed and agreed to pay.

As stated on the former appeal, the evidence showed that the corporation had assumed and agreed to pay $74,048.88 of the partnership notes, but it did not appear whether those notes included the notes in suit, and the judgment was reversed and the cause remanded. On the retrial of the case the evidence there pointed out as lacldng was supplied, and it is undisputed that the corporation, in consideration of the assets of the partnership being turned over to it, assumed and agreed to pay certain specified notes and these notes do not include the notes in suit here. The corporation having assumed to pay certain specified notes of the partnership as a part of the consideration. of the partnership assets, under the evidence here shown cannot be held liable for any other notes of the partnership.

From what we have said, it follows that the judgment of the municipal court of Chicago in favor of the defendant on his set-off is wrong and it is reversed. But since the evidence shows that plaintiff is not liable on the notes, the cause will not be remanded; and since there is no defense to plaintiff’s claim, judgment will be entered in this court in its favor for the amount of its claim.

The judgment of the municipal court of Chicago is reversed and judgment entered in this court in favor of plaintiff and against the defendant for $1,415.86.

Judgment reversed and judgment entered here.

McSurely, J., concurs.

Hatchett, J.: I concur in the result but not in all that is said.