author: Mr. Presiding Justice McSurely

text:
    Harry C. Johnson, Appellee, v. Henry A. Scandrett et al., Appellants.
    Gen. No. 39,998.
    Opinion filed June 30, 1938.
    M. L. Bluhm and Bruce S. Parkhill, both of Chicago, for appellant; C. S. Jefferson, of Chicago, of counsel.
    Royal W. Irwin, of Chicago, for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Defendants appeal from a judgment of $25,000 entered upon a verdict of a jury in an action brought by plaintiff on account of personal injuries sustained by him while employed by defendants as a bridge carpenter. The accident happened on the morning of March 18, 1936, in the daytime of a clear sunshiny day. Plaintiff, while carrying a bridge timber to be used in one of defendants’ bridges, stepped in front of one of defendants’ passenger trains, receiving serious injuries.

Defendants own and operate a line of railroad; the Dubuque Division runs southerly on the west side of the Mississippi river through Marquette, Iowa, which is a small village on the west side of the Mississippi; here the Dubuque division is crossed at approximately right angles by the Madison Division of defendants’ road. The Dubuque Division at this point consists of a main line track with a passing track over a mile long east of the main track. The Madison Division is a single track railroad going eastward across the Mississippi river on a pontoon bridge. There is a concrete highway running north and south, about 86 feet west of and parallel to the Dubuque line; from the intersection of the Dubuque line and the Madison line to the west end of the Mississippi river bridge is 98 feet. The Marquette depot is located on the Madison line, about half a mile west of the intersection of the Madison and Dubuque lines, and two “Y” tracks connect the Dubuque line with the Madison line and the depot — one from the south and one from the north; trains on the Dubuque line stopping at the Marquette depot use these “Y” tracks to reach the depot and then back out onto the main line, resuming their journey; from the intersection of the railroads to the switch of the south £<Y” is 540' feet; from the intersection the view to the south along the Dubuque line is entirely open and unobstructed.

Defendants were engaged in repairing the Madison line bridge across the Mississippi river and for this purpose had piles of lumber about two feet in height lying in the southwest angle made by the intersection of the 2 roads. Plaintiff with others was working on the west end of the bridge and went to get a bridge timber from the pile of lumber for use on the work of the bridge; to do this he walked westward, crossing the Dubuque line, and was at the pile of timber 5 or 10 minutes; a passenger train, consisting of a locomotive and 2 cars, had come from the south on the Dubuque line and had gone to the Marquette depot over the south “Y” track; after stopping at the station the train backed out over the same “Y” track to the connecting switch with the Dubuque line, 540 feet south of the intersection with the Madison line; after reaching the Dubuque line the switch was lined and the train proceeded in a northerly direction, going about 8 to 10 miles an hour; at the same time plaintiff placed a timber about 6x8 and 54 inches long on his right shoulder and started to walk eastward toward the bridge.

Plaintiff says he looked north when he was 7 to 10 feet from the Dubuque track and then went on; he did not look south at any time; he says that if he had looked south he would have seen the approaching train; he walked directly in front of it and was struck. The fireman had started firing as the train left the switch at the “Y” and did not see the accident. The engineer was on the east side of the engine and it was impossible for him to see plaintiff approaching from the west.

There is much testimony as to whether a bell was rung or whistle sounded'as the train approached the Madison track intersection. Plaintiff testified he did not hear the train or any whistle or bell. Other witnesses testified that they heard the train whistle as it started from the “Y” to go north, and members of the train crew testified that the bell was ringing automatically.

The suit was brought under the Federal Employers’ Liability Act. Counsel for plaintiff argues that the undisputed evidence shows that the fireman knew that persons crossed the Dubuque tracks at this point and it was his duty to look out for them as much as possible, and that if he had been sitting in his usual seat instead of firing the engine he would have seen plaintiff. It is said that this failure to keep a lookout was actionable negligence on the part of the defendants, causing the accident in question. Defendants’ counsel argue to the contrary.

We do not deem it necessary to pass upon the question of the defendants’ negligence as we are of the opinion that plaintiff assumed the risk of the injury in question and hence cannot recover.

In Seaboard Air Line Ry. v. Horton, 233 U. S. 492, 504, the general rule was stated that a workman of mature years must be held to assume such risks or dangers as are necessarily incident to his occupation. And in Hoch v. St. Louis-San Francisco Ry. Co., 315 Mo. 1199, it was held that the defense of assumption of risk may be interposed, even though the master has been negligent, where the risk was so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated it. This statement is supported by a large number of cited cases. In Toledo, St. Louis & Western R. Co. v. Allen, 276 U. S. 165, a car checker was struck by a car shunted upon him without warning. It was held that he assumed the risk, knowing that such cars were likely to be moved without warning. The court held the record failed to show that plaintiff was in any danger other than such as Avas usually incident to his employment.

In the instant case the train was operated in the usual manner and plaintiff had seen trains moving on this track and had stood beside the track the day before the accident and watched this particular train pass. His work required him to cross and be on both tracks and the bridge, and it follows that the risk of being struck by a passing train was an ordinary risk of his employment.

Plaintiff was not an inexperienced employee; he had been working as a bridge carpenter for 10 years in and about railroad tracks. He testified that while employed in such work he had to watch out for passing trains; he had been working at Marquette, where the accident happened, about tyro weeks prior to the accident. In common with all other employees working on the tracks and bridges of defendants, plaintiff was thoroughly familiar with a rule of defendants touching the duty of employees to watch for trains. This rule is as follows:

“Don’t depend upon others to warn you of the approach of trains, cars or vehicles. They may be expected from any direction at any time. Always be on the lookout. At the approach of trains employees will stand back on the same side, at least fifteen feet from the track until the train has passed. On double track, do not stand on the other track while trains pass. Gfet off the track promptly upon the approach of trains and do not linger until the engineer has to whistle for you to get off.” Plaintiff had a copy of and was familiar with this rule at the time of the accident. The rule warned plaintiff of the danger he incurred in crossing tracks, and by continuing his employment, subject to this rule, he assumed the risk of being struck by a train.

It has been held in many cases that employees engaged in keeping tracks in repair assume the risk of being struck by trains. In Chesapeake & Ohio Ry. Co. v. Nixon, 271 U. S. 218, it was held that such an employee must rely on his own watchfulness to avoid trains. Counsel for plaintiff argues that plaintiff was not engaged in maintenance of right of way and that this rule does not apply to him as a carpenter repairing bridges. In Central Vermont Ry. v. Sullivan, 86 F. (2d) 171, it was held that a trackman on a bridge had assumed the risk. In Ward v. Maine Central R. Co., 132 Me. 88, the employee was engaged in the construction work on a bridge on defendant’s lines; he was struck and killed by a passing train. It was held that his knowledge of the danger incident to the situation made it unnecessary for him to be warned, and that he assumed the risk. Wagner v. St. Louis-San Francisco Ry. Co., 223 Mo. App. 864, 19 S. W. (2d) 518, 521, 522, involved a bridge carpenter struck by a car; judgment for plaintiff was reversed, the court holding he had assumed the risk. In Feurt v. Chicago, R. I. & P. Ry. Co., 178 Minn. 395, 399, the employee was also a bridge carpenter, working on a bridge of the defendant; he was struck by a passenger train; judgment for plaintiff was reversed with directions to enter judgment for the defendant on the ground the employee assumed the risk.

It is not important that plaintiff was injured some short distance from the bridge. His work required him to cross defendants’ tracks to get the piece of bridge timber to be used on the bridge. This was part of his work as a bridge carpenter. Carfelo v. Delaware, L. & W. R. Co., 54 F. (2d) 475, 477, is precisely in point, where the court said: “The fact that he happened to be at a path across the track when he was injured did not decrease this risk which plaintiff assumed, for he must be treated as still at work when there. . . .” Other cases hold that the employee assumed risks which are open and obvious and could have been discovered in the exercise of ordinary care and prudence. Southern Pac. Co. v. Berkshire, 254 U. S. 415; Chesapeake & Ohio Ry. Co. v. Leitch, 276 U. S. 429; Biernacki v. Pennsylvania R. Co., 45 F. (2d) 677; Kawacz v. Delaware, L. & W. R. Co., 259 N. Y. 166. It should be remembered that plaintiff himself testified that if he had looked in the direction of the approaching train he would have seen it, hut that he did not look in that direction.

Plaintiff says that :he was misled by the 2 tracks at this point — the main track and the passing track — into thinking it was a double track railroad, and he therefore looked only to the north, from which direction he would expect a train to be approaching. The testimony of witnesses throws some doubt upon this statement. Trains operated on the main track in both directions. Plaintiff was experienced and had worked over tracks of the railroad for 10 years and on this particular division the previous year. Apparently all the other employees knew there was one main track and the other was a passing or switch track. But even if we accept plaintiff’s statement, the rules, with which he was familiar, definitely ordered an employee, where there was a double track, not to stand on the other track while trains were passing, and the rule admonished employees to get off the track promptly when a train is approaching.

It has been held that an employee of a railroad may not rely upon trains coming upon a particular track from the usual direction. Amoroso v. Baltimore & Ohio R. Co., 305 Pa. 195; Winfree v. Seaboard Air Line R. Co., 199 N. C. 590; and in Nardoni v. C. & E. I. Ry. Co., 261 Ill. App. 339, 345, where a track laborer was struck and killed by one of defendant’s cars, it was argued for the plaintiff that the train was running northerly on a southbound track. It was held that it was the duty of deceased to have known that trains might be run in this manner and that the employee had assumed the risk, and the reviewing court affirmed the action of the trial court in instructing the jury to find the defendant not guilty.

Other points are made which it is unnecessary for us to consider. We are of the opinion the evidence clearly shows that plaintiff assumed the risk of receiving the particular injury in question, and for this reason there can be no recovery from the defendants.

The judgment is therefore reversed without, remanding.

Reversed.

Hatchett and O’Connor, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    William H. Mellin, Appellant, v. Phillips Trust and Savings Bank et al., Appellees.
    Gen. No. 40,034.

      Opinion filed June 30, 1938.
    McCarthy & Toomey and Cummings & Wyman, all of Chicago, for appellant; Frank A. McCarthy, John E. Toomey and James C. O’Brien, Jr., of Chicago, of counsel.
    Herbert E. Bradley, for certain appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Plaintiff appeals from an order vacating and setting aside a sale of premises under a foreclosure decree and setting aside all proceedings and acts had and performed under the sale.

The foreclosure complaint was in the usual form, alleging an indebtedness of $44,000 and the execution of a trust deed conveying real estate as security. The owners of certain bonds and interest coupons were made parties as unknown owners. A decree was entered and the premises ordered sold. Sale was had by the master July 5, 1935, when it was sold to the representatives of a bondholders’ committee for $45,000. July 23, 1935, decree was entered approving the master’s sale.

May 20, 1936, Ray Nadall filed her appearance by her attorney and on June 25th filed an intervening petition, in which she asserted that she was the owner of three $1,000 bonds and one $500; that she turned over her bonds to the bondholders ’ committee and permitted them to participate in the foreclosure proceedings; that because of her ownership in the bonds she has an interest in the premises litigated.

In general she alleged that she was not adequately represented by the committee and asserted certain matters, hereafter referred to, in which she claimed the bondholders’ committee had not followed the directions contained in the decree approving the master’s sale. She asked that the trustee and the bondholders’ committee be required to file an itemized statement of the receipts and expenditures in the premises; that the decree entered July 23, 1935, approving the sale be carried out; that the bondholders’ committee present forthwith a plan of reorganization and that all incumbrances that have been placed on the premises by the bondholders’ committee or the trustee, not in accordance with the decree of the court, be declared null and void.

Plaintiff filed an answer denying petitioner’s right to file her petition but setting forth an accounting and other matters.

The chancellor on December 9, 1937, on hearing the intervening petition and the answer, held in substance that certain matters contained in the decree approving the sale were inserted for the purpose of inducing the court to approve the sale and without any intention of carrying them out, and that this was a fraud perpetrated upon the court, and it was therefore ordered that the sale of the premises made by the master on July 5, 1935, be vacated and set aside and that all of the acts performed under the sale be vacated and that the order of July 23, 1935, approving the sale be also vacated and set aside. Plaintiff appeals from this order.

In this court plaintiff argues that petitioner had no right to file her petition as she failed to follow the provisions of the statute (ch. 110, par. 174, sec. 50, sub-par. 8, Ill. Rev. Stat. 1937 [Jones Ill. Stats. Ann. 104.046]) which require that a petition seeking to change a final decree must contain certain jurisdictional allegations. To this petitioner replies that she is not seeking in any way to change or alter the decree of the court and is not coming into court by virtue of the provisions of the cited statute. Her position is that the committee on reorganization and the trustee are not following the directions of the court as given in the decrees, and that she has the right to call the attention of the chancellor to this disobedience that the court may see that its decretal orders are followed. Petitioner could properly file such a petition.

We are of the opinion that upon the merits the" order of the chancellor was improper^ entered and must be reversed. The particular thing which seems to have moved the court to its conclusion was consideration of the provisions of the decrees and the acts of the bondholders ’ committee which apparently did not comply with these provisions.

The foreclosure decree provided that in the event a bondholders’ committee should become the purchaser at the sale, the committee should present at the time of the application for confirmation of the sale a plan of reorganization, to be adopted on behalf of all depositing bondholders. It is important to note that the outstanding bonds at the date of the sale amounted to $41,125, and the committee purchased the property for $45,000.

Upon the filing of the master’s report of sale and distribution a short digest of the plan of reorganization was submitted. In the foreclosure decree the court reserved jurisdiction of the parties and the income from the property, and in the decree approving the master’s report of sale it was provided that at the expiration of the period of redemption a corporation will be formed to acquire title to the premises, which may then arrange for a new first mortgage loan on the premises to pay a portion of the costs, expenses and taxes.

The committee, having bid in the property for an amount which virtually paid all bondholders in full, did not wait for the redemption period to expire before securing a mortgage, but arranged for a $10,000 loan on the master’s certificate of sale under an agreement that at the expiration of the redemption period the certificate loan would be converted into a first mortgage, executed by the new corporation. July 12, 1937, after the redemption period, the master’s certificate loan was converted into a first mortgage and a trust deed was executed and recorded conveying the premises to secure the corporation’s note for $10,000.

Apparently referring to the provisions for a mortgage on the premises after the period of redemption had expired and for an accounting and for plans of reorganization, the chancellor found “that the placing of said provisions in said decree without any intention of carrying them out and merely as an inducement for the Court to approve the sale is such a misrepresentation and fraud perpetrated upon the Court as to warrant the setting aside the sale and the decree approving the sale.”

The trustee and committee may have been remiss in following these provisions, but it does not follow that they were incorporated in the decree without any intention of carrying them out. The conclusion that they were placed in the decree merely as an inducement for the court to approve the sale is unwarranted. They are the ordinary and customary provisions inserted in such decrees.

If the so-called plan of reorganization stated in the decree affirming the sale was not satisfactory, or no accounting was filed, these could be ordered by the court, and this would seem to be the reasonable and fair thing to do.

As to the placing of a mortgage before the period of redemption had expired, this is admittedly an irregularity, but we are unable to see how anyone was injured by this action. Counsel for plaintiff and the committee say that it was through inadvertence that there was omitted from the decree' a provision for a loan on the master’s certificate. Our attention is called to the costs and taxes which were due and additional tax penalties accruing. The loan on the master’s certificate, while prematurely made and should have first received approval of the court, was wisely negotiated under the circumstances.

The petitioner does not claim that anything done by the trustee or by the committee was a fraud upon the court, and in her brief she does not question the correctness of the accounting’ made in their answer. We see no reason for the entry of an order vacating the master’s sale. Such an order is too sweeping and has no relevancy to the things of which petitioner complains.

In case of another sale the bondholders might receive less than they will receive under the instant sale. Certainly to compel another 15 months of a redemption period to pass before a good title could be made would, in all probability, work great injustice to the bondholders.

The order of December 9, 1937, vacating the decree confirming the sale, with other acts, is reversed. As petitioner, Bay Nadall, could properly question the acts of the trustee and of the committee, each party to this appeal shall stand their respective costs.

Reversed.

Matchett and O’Connor, JJ., concur.


text:
    People of the State of Illinois, Appellant, v. Adolph Kresinsky, Appellee.
    Gen. No. 40,102.
    Opinion filed June 30, 1938.
    Thomas J. Courtney, State’s Attorney, for appellant ; Edward E. Wilson and Amos P. Scruggs, Assistant State’s Attorneys, of counsel.
    No appearance for appellee.
   Mr. Presiding Justice McSurely

delivered the opinion of the court.

This appeal is from the trial court’s order granting-defendant a new trial upon his motion in the nature of a writ of error coram nobis, and also its order discharging defendant from the house of correction and placing him on probation.

In the information it was charged that August 25, 1937, defendant unlawfully took a quantity of scrap iron belonging to the Chicago, Burlington & Quincy Railroad Company in Chicago, of the value of $14. Defendant pleaded not guilty, waived a jury, and upon trial by the court September 25, 1937, was found guilty as charged and was sentenced to the house of correction for six months and fined $1.

After defendant had served about 2 months of his sentence, on December 20, 1937, a motion to correct errors in fact was filed, in which were set out as alleged errors of fact: (1) That he was not represented by counsel; (2) that he was ignorant of the procedure of the court and could not plead his cause properly; (3) that the evidence of fact was allowed to be introduced by the State that would not have been introduced had he been represented by counsel; (4) that statements made by the other defendants not in his presence were allowed to be introduced as evidence and used against him; (5) that the records of the other defendants were allowed to be introduced in evidence, much to the prejudice of his case. The People moved to strike this motion, which was denied, and defendant’s motion allowed and a new trial granted.

On the same day defendant, in the new trial, pleaded not guilty to the same charge of larceny upon which he previously had been convicted; he waived a jury and again was found guilty as charged in the information. Upon application the court ordered defendant released on probation for six months upon filing a recognizance without surety in the sum of $500, and he was released and the cause continued to June 30, 1938. Defendant has filed no brief in this court in support of the trial court’s action.

In People v. Parcora, 358 Ill. 448, the court considered a motion in all respects like that now before us. There the trial court refused to vacate the judgment, and in affirming this the Supreme Court referred to the insufficiency of the petition, which alleged that while the record showed plaintiff in error was represented by counsel, this was untrue, and that if the judgment was set aside he would be able to produce evidence which he did not have an opportunity to present and would be able to retain counsel to present his defense. The court said:

“A petition in the nature of writ of error coram nobis is designed to correct some error happening at the trial which the court would not have committed if it had been in possession of certain facts unknown to it. It can scarcely be said that the court did not know that plaintiff in error Avas not represented by counsel, if such was true, nor that he was denied counsel when requested. . . .
“This petition does not come within the rule governing petitions in the nature of writs of error coram nobis. There is no evidence that plaintiff in error was convicted by duress, fraud, or by mistake or ignorance on his part. There is no showing that he has been deprived of any defense which he could have used at the trial which if known to the court would have prevented a conviction. We are not convinced that this record shows that he asked for the aid of counsel.
“The court in the trial of criminal cases is bound to see that counsel is provided, when requested, for defendants unable to procure such assistance. It is »a matter of common knowledge that in a court such as the municipal court of Chicago hundreds of cases are heard without the intervention of counsel. In the absence of a sufficient showing to the contrary, this court must presume that the judge hearing this case ... did not deny a request for the seiwices of counsel.”

In the instant case all of the alleged errors of fact relate to supposed errors in the admission of evidence on the trial which might not have occurred if defendant had been represented by counsel. Defendant does not say he asked the court to appoint counsel for him and was refused, but merely says he was not represented by counsel, which is not even as strong a case as the one above cited, where, although the petition stated that counsel was requested and refused, the motion was denied. Such a fact, therefore, has no place in the motion, which must contain facts unknown to the court when judgment was rendered.

In the judgment order on the trial it was recited that “said defendant being present in his own proper person as well as represented by counsel. . . .” It is only concerning matters of which the judgment itself is silent that the court may entertain a motion of this kind to correct errors in fact. McCord v. Briggs & Turivas, 338 Ill. 158, 166; People v. Williams, 293 Ill. App. 92, and cases there cited. The court should have allowed the motion to strike the petition.

For the reasons indicated the judgment of December 31, 1937, granting defendant a new trial and discharging him from the house of correction ánd placing him on probation is reversed and the cause is remanded with directions that defendant be remanded to the superintendent of the house of correction to serve the remainder of his sentence.

Reversed and remanded with directions.

Hatchett and O’Connor, JJ., concur.


author: Mr. Justice Matchett

text:
    People of the State of Illinois, Defendant in Error, v. Peter G. DeMet, Plaintiff in Error.
    Gen. No. 40,006.
    Opinion filed June 30, 1938.
    Stebbins, McKinley & Price, of Chicago, for plaintiff in error; W. G. Anderson, Chris. D. Toulon and Louis Dennen, of Chicago, of counsel.
    Otto Keener, Attorney General, for defendant in error; Mortimer Forges and Philip J. Simon, Assistant Attorneys General, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Defendant was tried under an information filed by the Attorney General December 30,1937, charging him with violation of section 13 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1937, ch. 120, par. 452, sec. 13, p. 2726 [Jones Ill. Stats. Ann. 119.480]) found guilty and sentenced to confinement in the county jail of Cook county for a period of 90 days and to pay the costs of prosecution. Motions for a new trial and in arrest were overruled and judgment entered to reverse which this writ of error has been sued out.

The information charged that defendant, “during all of the calendar month of June, A. D. 1937, at Chicago, Illinois, engaged in the business of selling tangible personal property at retail, and that the said Peter Gr. DeMet, on the 15th day of July, A. D. 1937, at Chicago, in the County of Cook, in the State of Illinois, did then and there, unlawfully fail to make a return to the Department of Finance of the State of Illinois, etc.”

It is contended the information is fatally defective in that while by statute the office of the State Department of Finance to which defendant was obligated to report is located in Springfield, Sangamon county, Ill. Rev. Stat. 1937, ch. 127, sec. 17 [Jones Ill. Stats. Ann. 126.136], the information lays the venue of the alleged offense in Chicago, Cook county, Illinois, without any averment that a branch office of the State Department of Finance has been established in Cook county. Defendant says that it has been held that the court will not take judicial notice that any such branch office has been established, and that the municipal court of Chicago was therefore wholly without jurisdiction to enter judgment against him.

Both parties rely upon People v. Allen, 360 Ill. 36. The State also cites People v. Cepek, 357 Ill. 560. In People v. Allen, the defendant was convicted of a violation of the Motor Fuel Tax Law. The indictment there charged that the defendant transported from without the State into Cook county, Illinois, a large amount of fuel oil which he sold to purchasers, collecting from them a tax of 3 per cent, which he wilfully refused to pay to the Department of Finance, contrary to the statute, etc. The indictment was in 16 counts and the defendant was found guilty on all of them. The defendant sued out a writ of error in the Supreme Court (People v. Allen, 352 Ill. 262) contending that certain constitutional rights of the defendant had been violated, in particular that a motion to quash the indictment should have been sustained because while the venue was laid in Cook county, it charged the actual place of the offense to be in another county. This, it was claimed, deprived the defendant of his constitutional right to a trial in the county in which the offense was alleged to have been committed contrary to section 9 of article 2 of the Constitution. The court said:

“The Department of Finance is created by the Civil Administrative Code, which provides in section 17 that each department of the State government shall maintain a central office in the capítol building at Springfield in rooms provided by the Secretary of State. It further provides, however, that the director of each department may, in his discretion, with the approval of the Governor, establish and maintain at places other than the seat of government branch offices for the conduct of one or more functions of his department. The court does not take judicial notice that a branch office of a department has or has not been established at any place within the State other than the seat of government. That is a matter for proof. It is true that in an indictment for embezzlement, consisting of failure to account, we have held that the venue must be laid in the county and State where the accused was under an obligation to account. (Kossakowski v. People, 177 Ill. 563; People v. Davis, 269 id. 271.) This is not an indictment for embezzlement. . . . The allegation is that the motor fuel was sold, the tax was collected and the failure and refusal to pay occurred within the county of Cook. The offense was therefore alleged to have been committed in the county of Cook, and that was the county in which the constitution guaranteed to the defendant a trial by jury. No constitutional question was raised by the motion to quash or the trial of the plaintiff in error in Cook county.”

The cause was transferred to this court and is reported in People v. Allen, 276 Ill. App. 28. In the opinion in that case this court said:

“It would be a defense to show that the tax collected was paid to the proper collection official of the State of Illinois, whether at the seat of government or at a branch office. The fact remains that the defendant still has the money collected as a tax on gasoline sold by him, which he admits he did not report to the proper office in the manner provided for by the statute. From these facts as they appear in the record and upon consideration of what the Supreme Court said upon this very question, which is herein-before quoted, this court is of the opinion that there is evidence sufficient to establish the venue in Cook county.” The judgment ivas affirmed. The defendant sued out a writ of error from the Supreme court which is disposed of in People v. Allen, 360 Ill. 36. The opinion of the Supreme Court disallowing other alleged errors, held:

“The defendant next contends that the venue was not proved. It is well settled that in an indictment for embezzlement the venue is properly laid in the county where the accused was under a duty to account. (People v. Davis, 269 Ill. 256.) In People v. Kopman, 358 Ill. 479, where the defendant was charged with embezzling motor fuel tax- money, we held that the venue was correctly laid in Sangamon county. The statute (Smith’s Stat. 1933, chap. 127, sec. 17) requires the Department of Finance to have its central office in the capítol building, in Springfield. We will not take judicial notice that branch offices have been established, (People v. Allen, 352 Ill. 262) and in the absence of proof to the contrary the place where the defendant is under obligation to account is in Springfield. The same reasoning applies to this prosecution under section 15 of the Motor Fuel Tax act, and the State capítol is the place where Allen was under a duty to pay the tax money to the Department of Finance in the absence of proof that there was a branch office of that department in Cook county authorized to receive payment. What we said in People v. Allen, 352 Ill. 262, when this cause was first before us, concerned the allegation, and not the proof, of the venue in Cook county. The rule adopted with reference to venue in embezzlement cases applies with equal force to prosecutions under section 15 of the Motor Fuel Tax act. In both offenses the venue should be laid where the defendant is bound to account or pay over the money. The Appellate Court ruled adversely on this contention for the reason that it would be a defense if it were shown that the tax collected had been paid to the proper collection official, whether at the seat of government or at a branch office, and no such defense was made. But the People were obliged to prove that there was a branch office in Cook county duly authorized to receive payment. The defense of payment was not an issue in this cause.

“The other assignments of error need not be considered.

“For failure of proof of venue the judgment must be reversed and the cause remanded.”

Section 3 of the Retailers’ Occupation Tax Act provides that the vendor shall at the same time he makes the required return, pay to the State Department of Finance the amount of the tax imposed. The duty to make the return includes the duty of paying the tax to the State Department of Finance. The provisions of the Motor Fuel Tax Law construed in People v. Allen, and the provisions of the Betailers ’ Occupation Tax Act, here construed, are similar and analogous. The State, however, contends that since the evidence is not preserved the court will presume that, if preserved, it would show that a branch office was located in Chicago, Illinois; that if establishment of such branch office was essential, then the court must presume that such proof was made, there being no record of proceedings at the trial court. (People v. Leoni, 198 Ill. App. 376.) This is. undoubtedly true. On the other hand, if it was necessary to a conviction that proof be made of the creation of a branch office in Chicago, Cook county, Illinois, it was also necessary that this material allegation should be set up in the information in order to confer jurisdiction on the trial court.

In Gunning v. People, 189 Ill. 165, the Supreme Court said: “Proofs without allegations are as ineffectual as allegations without proof. . . . All necessary facts should be pleaded with reasonable certainty, and Section 6, Division 11 of the Criminal Code has not dispensed with that rule.”

The information was therefore defective. The information is also defective in that it fails to allege that the failure to report and pay on defendant’s part was intentional and wilful. (Ill. Rev. Stat. 1937, ch. 38, div. II, sec. 8, ¶ 588, p. 1174 [Jones Ill. Stats. Ann. 37.549].) The motion in arrest of judgment should have been allowed.

People v. Cepek, 357 Ill. 560, is distinguishable. In that case the defendant was indicted in Cook county, Illinois, for making or causing to be made a false and fraudulent report of the resources and liabilities and financial condition of the Millard State Bank, in Chicago, Cook county, Illinois. The evidence shows that the report was made, subscribed and sworn to in Cook county, and the court said that the fact that the report, after it was made, was sent to the auditor’s office in Springfield was immaterial. The venue is a controlling element in the statement of the commission of a criminal offense. (People v. Powell, 353 Ill. 582, 590.)

The judgment is reversed.

Reversed.

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


text:
    Air Conditioning Corporation, Appellant, v. A. P. Honaker, Appellee.
    Gen. No. 40,050.

      Opinion filed June 30, 1938.
    Rosenberg, Toomin & Stein, of Chicago, for appellant.
    Ditchbubne & Lounsbury, of Chicago, for appellee; Charles E. Lounsbury and Philip H. Kelley, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

Plaintiff caused a judgment to be entered' by confession against defendant by a power of attorney attached to a promissory note dated November 6, 1935. On motion of defendant the judgment was opened. There was a trial by the court with a finding and judgment in favor of defendant and plaintiff appeals from that judgment.

The defense in substance was failure of consideration in that the note was given for equipment which the plaintiff’s assignor sold to defendant and agreed to install in defendant’s restaurant, and which (so it was represented — and the representations relied on by defendant) would function with the heating apparatus in defendant’s restaurant in such a way as would remove smoke and kitchen odors, purify the air and heat the premises.

The court heard the evidence and found that the system installed did not accomplish any of these things. The “air conditioning apparatus” was installed about December 15, 1935. The heat was controlled by a thermostat. The equipment was composed of four items described in the written contract as “One (1) General Electric Warm Air Conditioner LB4; One (1) Complete set of ductwork; One (1) All controls for heating; One (1) Complete installation for winter air conditioning; One (1) Oil Tank — 275 gallons . . . together with all necessary ducts, piping and electric wiring. ...” Five or six times in December, two or three times in January, 1936, and three times in February the service department of the plaintiff gave attention to this apparatus, usually upon complaint of defendant. Defendant was not satisfied with the operation of the equipment and on February 15, 1936, notified the seller that the equipment did not function satisfactorily and ordered the seller to remove it. There were initial payments which defendant made and after the equipment was installed defendant made two payments of $60 each upon the note given for the price of the equipment. The equipment according to defendant’s testimony (which the court accepted and which we also accept) did not remove odors from the air, did not purify the air in the restaurant and did not licat it as vendor’s agents promised and as it was apparently designed to do. That such was its purpose appears from the testimony of Mr. Greer, an engineer in charge of plaintiff’s service department.

The agreement for the purchase and installation of this equipment was, as already stated, provided for by a written contract. This contract was executed between the parties November 6, 1935.

The principal contention of defendant is that oral evidence as to alleged warranties of the things which would be accomplished by use of the equipment and which it was evidently designed to accomplish was not admissible, and this is the controlling question in this case.

The contract is in evidence; it provides that the vendor agrees to sell and install the property described complete with standard attachments and equipment, together with all necessary ducts, piping and electric wiring, on or about November 12, 1935-, at the agreed price of $1,460, of which $35 is payable on signing the agreement and the balance of $1,425 payable “A— when equipment is completely installed. B — In 24 consecutive monthly payments of $60.00 each, except the final installment which shall be $45.00 beginning January 15, 1936”; that title to the equipment, except house wiring, ducts and piping, shall not pass to the buyer until the agreed price is fully paid in cash, and that the buyer shall execute and deliver his note for the balance “when equipment is completely installed,” and that the note may be negotiated. This note was given and is the instrument sued on.

Plaintiff says the oral evidence was not admissible because of two' merger clauses appearing in this contract. ■ One of these was on the face of the; contract and declares, ‘ ‘ There is no agreement, verbal or otherwise, which is not set down herein; no waivers or modifications "shall be valid unless written upon or attached hereto.” The other is printed on the hack of the contract under the heading, “Terms and Conditions. ’ ’ It states “. . . There are no warranties, express or implied, made by either the Manufacturer or the Seller other than Manufacturer’s Standard Warranty on its own Equipment.” The contract is on a form prepared by the vendor and will therefore be construed most strongly against the plaintiff. The second recited merger clause purports to cover the sale or manufacture of the article sold. It does not seem to cover the installation or service which is provided for by the contract. We think defendant was not precluded from giving oral evidence by that clause. The parol evidence rule is not a rule of evidence but of interpretation or construction. (Williston on Contracts, Vol. 2, par. 631, p. 1221.) Plaintiff recognizes this, citing section 71 of the Uniform Sales Act (Ill. Rev. Stat. 1937, ch. 121½ [Jones Ill. Stats. Ann. 121.75].) As Professor Williston points out, giving due recognition to Dean Wigmore, the parol rule is in reality a group of rules defining- the constitution of legal acts, each of which consists of four elements, the creation, the integration, the solemnization and the interpretation to external objects. (Williston, Vol. 2, par. 632, p. 1223.) The integration depends upon the intention of the parties. The parol evidence rule is only applicable where the contract is reduced to writing and the parties agree or intend it shall be their agreement. (Williston, Vol. 2, par. 636, p. 1232.) It follows that where a writing is incomplete it may be added to by parol. This contract, when examined, is evidently, incomplete. Considered particularly, it shows the sale’ óf specific and particular articles of property. Taken as a whole, it shows an agreement to install these pieces of property in such a way as to constitute a unity which will air-condition plaintiff’s premises. “Air-condition” is a comparatively new word. Webster’s International Dictionary does not give it at all, and its meaning* is ambiguous. That meaning is not defined by the written contract. Without the oral evidence we would have no information as to what .the parties intended. Because the contract as written, was incomplete and ambiguous this oral evidence was admissible. The case is clearly distinguishable from Sterling-Midland, Coal Co. v. Great Lakes Coal & Coke Co., 334 Ill. 281, and Heller v. Franklin-Butler Motors, Inc., 259 Ill. App. 358, in these respects.

Plaintiff’s suit is on the note given in consideration of the contract. It is not on the contract itself. The contract was the consideration for the note and the contract in one of these merger clauses recites what the court found to be untrue. Defendant was therefore not bound thereby. A merger clause reciting as true matters which are not true and which a defendant shows to be false, might easily prove an efficient means of fraud. The subject has been much discussed in legal publications. (See Cornell Law Quarterly, vol. 20, No. 1, pp. 91-95; Illinois Law Review, vol. 32, pp. 938-953.) We hold that because this contract was ambiguous and incomplete the parol evidence was admissible. (Lidgerwood Mfg. Co. v. Robinson & Son Contracting Co., 183 Ill. App. 431; Fuchs & Lang Mfg. Co. v. R. J. Kittredge & Co., 146 Ill. App. 350; Chicago Auditorium Ass’n v. Fine Arts Bldg., 244 Ill. 532.) It is urged that defendant waived his right to rescind the contract by use of the equipment after he had. notified the seller to remove it. The evidence, however, also tended to show that this use was at the request of plaintiff’s agent and under circumstances which would preclude this inference.

The judgment is affirmed.

Affirmed. ■

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


text:
    Edna S. Fonyo, Appellee, v. Chicago Title and Trust Company, Appellant.
    Gen. No. 40,076.
    Opinion filed June 30, 1938.
    George C. Bliss, of Chicago, for appellant.
    Walker Butler and Jacob G. Grossberg, both of Chicago, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.

In an action in trespass on the case for damages on account of personal injuries by reason of the alleged negligence of defendant, and upon trial by the court, there was a finding for plaintiff with damages assessed at $6,000 and judgment thereon from which defendant appeals.

The declaration was filed September 10, 1931. The occurrence upon which the suit was based took place January 20,1931. November 29, 1933, the demurrer of defendant to plaintiff’s original declaration was sustained and leave was given to file an amended declaration, which plaintiff filed December 7, 1933. A demurrer to this declaration, consisting of three counts, was overruled. Defendant filed the general issue and a special plea that it was not in possession of the premises, etc. December 20, 1937, during the trial of the cause, a second amended declaration was filed by leave, and also defendant was permitted to file a plea of the statute of limitations to the second amended declaration. Plaintiff demurred to this plea and the demurrer was sustained. The cause went to trial on the pleas of the general issue and the special plea that defendant was not in possession of the premises with results as heretofore stated.

Defendant contends that the court erred in sustaining the demurrer of plaintiff to the plea of the statute of limitations and that the judgment should be reversed for that reason. The facts are that plaintiff and her husband were at the time of the occurrence in question occupying an apartment of four rooms under an oral lease (so the pleadings aver) from month to month, with an arrangement by which defendant (also orally) promised to keep the apartment and its furnishings in repair. Plaintiff alleged defendant did not keep the furnishings in repair or repair the same as it agreed to do; that a carpet (a part of the furnishings leased) was permitted to become worn and torn to such an extent that there was a large hole in it; that it remained unrepaired, and that on the date in question plaintiff tripped on this hole and was thrown to the floor, injuring her.

The original declaration did not allege that plaintiff at the time of the occurrence was in the exercise of due care, and defendant contends that the first amended declaration which supplied this supposed defect in the pleading was not filed until after the action was barred by the two-year statute of limitations, Ill. Rev. Stat. 1937, ch. 83, sec. 15 [Jones Ill. Stats. Ann. 107.274], which was applicable to this kind of cases. This matter of practice and pleading is now controlled by section 46 of the Civil Practice Act [Ill. Rev. Stat. 1937, ch. 110, §170; Jones Ill. Stats. Ann. 104.046], but at the time of the occurrence complained of, and when the suit was brought, section 39 of the old Practice Act, as amended in 1929, was applicable. Section 39 of the old act was construed by this court in Zister v. Pollack, 262 Ill. App. 170 (contrary to the contention now made by defendant) it being held that under the statute the second declaration which described the same occurrence as the first, related back to the time of the filing of the first declaration. Certiorari was denied by the Supreme Court. Section 46 of the new Practice Act was construed by this court in Metropolitan Trust Co. v. Bowman Dairy, 292 Ill. App. 492, and the judgment in that case has been affirmed in 369 Ill. 222. It is there held that the real test in such cases is whether the transaction or occurrence set forth in the amended pleading was the same as that set up in the original pleading. The decisions of the Supreme Court restores the practice to that which prevailed at common law in England and under earlier decisions of our own State construing former practice acts. Teutonia Life Ins. Co. v. Mueller, 77 Ill. 22; Litchfield Coal Co. v. Taylor, 81 Ill. 590; Chandler v. Frost, 88 Ill. 559; McCall v. Lee, 120 Ill. 261; Bearecroft v. Hundreds of Burnham (1695) 3 Lev. 347, 83 Eng. Rep. 723; Chisly v. Becket, B. R. Hill, 2 W. & M. Rot. 432; Maddock q. t. v. Hammet (1796) 1 T. R. 55, 101 Eng. Rep. 851; Cross v. Kaye, 6 T. R. 543, 101 Eng. Rep. 693; Jones v. Corry (1840) 6 Bingh. N. C. 247, 133 Eng. Rep. 99; Crawfurd v. Cocks (1851) 6 Exch. 287, 155 Eng. Rep. 551; Curne v. Malins (1851) 6 Exch. 803, 155 Eng. Rep. 770; Cowburn v. Wearing, (1853) 9 Exch. 207, 156 Eng. Rep. 88; Doe d. Rabbits v. Welsh (1846) 15 J. J. Q. B. 312. These cases disclose that “the harsh and scholastic rule as to amendment in relation to the statute of limitations ... is an artificial creation of the courts,” which has “no support in the English common law.” In the Maddoch case, Lord Kenyon said:

‘ ‘ This is an application to the discretion of the court; and in these cases we must take care that the plaintiff shall not unnecessarily hang his action over the head of the defendant: but no such conduct is imputable to the present plaintiff and the case last cited (Cross v. Kaye, 6 T. R. 543,101 Eng. Rep. 693) is an authority in point for our granting the plaintiff leave to amend, though the time limited for bringing a new action is expired; inasmuch as the amendment prayed for is not to introduce a new substantive cause of action, but merely to rectify a mistake in setting out the notes.” In the Jones case, Erskine, J., said:

“As to the objection that the defendants would be able to plead the statute of limitations to a fresh action, and that therefore the plaintiff ought not to be allowed to include the whole of his demand in this, the courts have allowed amendments to prevent the statute of limitations from attaching, but I never heard of them refusing an amendment in order to give effect to that statute. . . . ”

Maule, J.: “ The right to amend should be more indulgently viewed, where the statute of limitations is likely to apply. . . . ”

In Doe d. Rabbits v. Welsh, it appears counsel argued: “If this amendment is allowed it will have the effect of depriving the defendant of his defense under the statute of limitations; and a party who asks for such an amendment ought to shew the court that no injustice will arise from its being granted.” To which "Wightman, J., answered: “I think you ought to show that injustice will arise, for the effect of refusing this application would otherwise be to deprive the lessors of the plaintiff of their mortgage security.”

The distinction is between the technical cause of action on the one hand and what Lord Kenyon speaks of as the substantive cause of action on the other. It is only when the substantive as distinguished from the technical cause of action is interfered with by the amendment that there is any room for allowing the statute of limitations to apply either under the common law or under section 46.

Defendant calls our attention to First Nat. Bank v. Dolton, 288 Ill. App. 85. Upon examination we find it distinguishable in that, as we there stated, the cause of action was in its nature distinct and different from that stated in the subsequent declaration. We hold the court did not err in sustaining plaintiff’s demurrer.

In the second place defendant contends that the relationship between plaintiff and defendant was not such as to impose upon defendant a legal duty to keep the leased apartment in repair distinct from its contractual agreement, and it appeals to the rule of law said to obtain in this and most other jurisdictions to the effect that a landlord is not liable for personal injuries to a tenant or member of the tenant’s family where the injury occurs on the leased premises by reason of a violation of an agreement of the landlord to keep the leased premises in repair. It is argued, therefore, that plaintiff neither alleged nor proved a cause of action, and that plaintiff could not recover. The material facts are as follows:

In the spring of 1929 defendant was in possession and control of an apartment hotel formerly known as the South Shore Club Hotel and afterward as the Orlando Hotel; the building was a 16-story structure and contained 148 apartments. Plaintiff interviewed Mr. Phillips, the then manager of the hotel, with reference to taking an apartment; she says he first wanted $165 but they offered $150 a month, and finally Phillips called by ’phone and told them they might have the apartment for $155; they had looked at a number of apartments and liked this one; the apartments were furnished and the furnishings were discussed with Mr. Phillips; plaintiff says more than once she said by way of question to him, “Now, you will certainly keep the furniture and carpets in as good condition as they are now?” and he said “Yes, that is our business. ’ ’ Plaintiff had him move out some of the chairs and put in different ones and bring lamps which she liked better than the lamps in the apartment, and she says, “He fixed everything that I asked.” She also says that Phillips said he would keep the apartment in first class condition. Plaintiff and her husband moved into the apartment and were there for a little more than two years, the rent in the meantime having been reduced to $140 a month. The floors in the apartment were covered with a carpet owned by the hotel, and the carpet remained there until plaintiff’s accident on January 20, 1931. Plaintiff says it is the same carpet that was there “when I leased the apartment in 1929.” Other furnishings were a davenport, chairs, twin beds, lamps, dining table, chairs in the dinette, a stove and ice box. There was a small table in the kitchenette furnished by defendant; defendant also furnished dishe.s, knives and forks but plaintiff had some silver of her own. In connection with the dinette there were linens furnished by defendant; the electric current operating the frigidaire and furnishing light was furnished by defendant; linens, pillow slips and spreads were also furnished by defendant. Plaintiff received mail regularly at the desk located in the lobby. Mr. Phillips was manager; there were different clerks employed by defendant and none of them by plaintiff; there was a lobby in the hotel which was changed while plaintiff was there; there was a drug store in the front part; defendant’s general help was in charge of the lobby. Plaintiff did not know the character of other tenants in the building but supposed they were like herself; how they came there she did not know, but some people came and stayed awhile in the summer as summer guests. She had two telephones, one her private ’phone and the other a hotel ’phone; the hotel ’phone was operated from the switchboard downstairs by a girl employed by defendant.

Defendant also furnished plaintiff maid service; she employed none of these personally; the maids visited the apartment each day, made up beds, swept and dusted and cleaned the bathroom; they could go into the apartment when she was not there, as they had pass keys. When plaintiff left the apartment for a time she usually left her key at the desk; sometimes she forgot and took it with her. Defendant furnished gas and water; prior to January 20, 1931, pieces of furniture were taken out and exchanged; two chairs were exchanged and one fixed; plaintiff talked with the housekeeper about some repairs to a chair; she told the housekeeper she wanted these chairs either fixed or new chairs; the chairs were gettting worn and the housekeeper changed them for her; the houseman took the chairs out; she saw housemen around, how many she did not know; the hotel had maids, bellboys, porters, clerks, telephone operators, a housekeeper and a manager; two maids were assigned to plaintiff’s floor.

Prior to January 20, 1931, plaintiff had a conversation with the manager or housekeeper with reference to the condition of the premises; this was the first time she talked to anybody about the carpet; she mentioned this first to the maid (named Anna) and mentioned the hole in the carpet and told her to tell the housekeeper she would have to do something about this hole, and Anna said she would; the hole had just appeared in the dinette carpet which was at the entrance from the kitchenette into the dining room. Anna said she would have it fixed, but plaintiff did not hear anything more about it; she then spoke to the housekeeper who said she ivould come in and see about it, but did not come, so plaintiff called her again and insisted on her coming ; she came, saw the worn hole in the carpet and said she would have it fixed the next day, but did nothing further; plaintiff then went to the manager, Mr. Phillips; he expressed surprise that the carpet had not been fixed and said he would attend to it immediately; after that a man came up to see plaintiff about the carpet, inspected it and said he would make a report. Plaintiff did not hear from him again; thereafter nobody came up to fix the carpet, and she went down to the office of Phillips and told him if he did not fix it she would move; that she could not live there with it in that condition; he told her he would see about it right away; the day before the accident he sent up a man who tried to fix the carpet. On the same day, while in the company of a friend with whom she was to have lunch, she saw Mr. Phillips in the lobby and told him she ivould have to move if the hole was not fixed; he asked her if the hole had not been fixed and she said, “Mo.” Thereafter a man came up and tried to sew the carpet; he had threads and tools and was there about 15 minutes; he said it was impossible to fix it and he would report back to the management; no one else came.

The next day in the afternoon she was at home with three friends who were visiting her; they played bridge; she went into the kitchen to get some coffee to serve to her guests; she had a tray in her hands and as she started out through the dinette her heel caught in the hole and she fell on her left side and on her left foot; she did not leave her apartment for three weeks and was seriously injured.

Plaintiff occupied this apartment for nearly two years prior to the accident; during that time she cooked her own meals. The apartment consisted of a dinette, kitchen, bedroom and parlor; it was apartment number 611; she continued to occupy this apartment until March following the accident. The carpet was fastened down; once before the accident she had caught her foot in this hole in the carpet; she did not try to sew up the tear.

The cases which consider the liability of a landlord upon his covenant to repair are collected in 8 A. L. R. 765, in an annotation to Collison v. Curtner, 141 Ark. 122, 216 S. W. 1059, and in 68 A. L. R. 1194, in an annotation to Jacobson v. Leaventhal, 128 Me. 444, 144 Atl. 281. The general rules applicable have been stated in Cullings v. Goetz, 256 N. Y. 287, in an opinion by Judge Cardozo.

The law of New York and the majority rule in England and this country is there said to be that “a covenant to repair does not impose on the lessor a liability in tort at the suit of the lessee.” The opinion states that there are authorities to the contrary and that the American Law Institute now adheres to the minority rule, Restatement, secs. 227 and 357. The Appellate Court of Illinois followed the majority rule in Cromwell v. Allen, 151 Ill. App. 404, which has been quoted with apparent approval by the Supreme Court in Oppenheimer v. Szulerecki, 297 Ill. 81. However, no case has been cited in which the Supreme Court has directly passed upon this question. In Mikusz v. Kahn, 207 Ill. App. 258, and Revell v. Illinois Merchants Trust Co., 238 Ill. App. 4, and the recent case of Breazeale v. Chicago Title & Trust Co., 293 Ill. App. 269, this court has followed the rule laid down in the Cromwell case. It is quite true that there are contradictory expressions to be found in these and other Appellate Court cases ; all are distinguishable, and in the absence of a ruling by the Supreme Court we deem it unnecessary to pass upon the question, since we are agreed that on the uncontradicted evidence plaintiff was guilty of contributory negligence which precluded a recovery. We cannot agree as plaintiff contends, that the judgment should be affirmed on the theory that the relationship between plaintiff and defendant was that of innkeeper and guest or at least guest and lodging-house keeper. The declaration in every count alleges the tenancy of plaintiff from month to month under an oral leasing. We find no suggestion therein of any other relationship, nor is such relationship' established by the evidence above recited. White v. Maynard, 111 Mass. 250; Foster v. Merril, 124 Mass. 534; Shearman v. Iroquois Hotel & Apt. Co., 85 N. Y. S. 365; Hackett v. Bell Operating Co., 169 N. Y. S. 114; Pullman Palace Car Co. v. Smith, 73 Ill. 360; Rubens v. Hill, 115 Ill. App. 565. However, on the uncontradicted evidence we hold as a matter of law that plaintiff may not recover because of lack of proof that at and prior to the time she received her injury plaintiff was in the exercise of due care for her own safety. The testimony bearing on that issue was furnished by plaintiff herself. It appears therefrom that plaintiff was perhaps more than any other aware of the condition of the carpet. No person knew the danger better than she. She says she actually tripped upon the carpet shortly before the day on which she received her injury. It also appears that the man sent to repair the carpet told her that the hole could not be repaired. Plaintiff could easily have avoided all danger either by attention to her steps or by taking the simple precaution of covering the hole in the carpet. Plaintiff was not in the position of a transient guest at a hotel nor of a lodger in a lodging-house. She was a permanent tenant, familiar with the premises.

It would serve no useful purpose to discuss the cases cited on the point of plaintiff’s contributory negligence. Under the facts as narrated by her, we think all reasonable persons must agree that plaintiff was negligent and that her negligence contributed to the unfortunate accident by which she was injured. On this point it is sufficient to cite Illinois Cent. R. Co. v. Oswald, 338 Ill. 270; Day v. Talcott, 361 Ill. 437, and Martin v. Surman, 116 Ill. App. 282.

Plaintiff cites many cases from other jurisdictions and one from Illinois, — Hayward v. Merrill, 94 Ill. 349, where a guest at a hotel fell into an unguarded opening. All are distinguishable. In Illinois the plaintiff must affirmatively prove due care.

The judgment is reversed.

Reversed.

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


text:
    Edward F. Mulhern, Appellant, v. Public Auto Parks, Inc., Appellee.
    Gen. No. 40,087.
    Opinion filed June 30, 1938.
    Julius S. Neale, of Chicago, for appellant; Clarence T. Morse, of Chicago, of counsel.
    Sugarman & Rothman, of Chicago, for appellee; Samuel D. Rothman, of Chicago, of counsel.
   Mr. Justice Matchett

delivered the opinion of the court.

On April 22, 1937, plaintiff filed his statement of claim in which he averred that on January 11, 1937; he was the owner of an automobile with equipment, including a new zipper bag which contained personal articles owned by him; that on that date he delivered the automobile and contents thereof to defendant, Public Auto Parks, Inc., a corporation, at its parking-garage or lot located on the southeast corner of 7th street and Wabash avenue, in Chicago, where it was engaged in handling, storing and keeping automobiles and the contents thereof for the purpose of being safely parked, for a reward, at said garage, to be returned to the owner upon demand. The statement averred that at the time and place in question plaintiff asked the agent or servant of the defendant in charge of the parking lot whether it would safely keep and store a zipper bag and personal property therein contained, and it was then agreed between the parties that he would safely keep these contents if plaintiff would deliver the keys to his automobile to said defendant so that it could be safely locked in accordance with the agreement; that the following day, January 12, at about 2:00 a. m., plaintiff presented his parking ticket to the defendant, paid defendant its reward, and upon delivery of the automobile discovered that the keys were in the automobile and the zipper bag and its contents were not in it; that these were not delivered to plaintiff upon demand, and that defendant disregarded its contract to keep and store plaintiff’s zipper bag and contents and to deliver the same. The statement alleged the value of the bag and contents to be $159.84.

Defendant filed an answer, neither admitting nor denying that plaintiff was the owner of the automobile and the zipper bag containing personal property, or that plaintiff delivered the automobile and contents to defendant’s parking garage as alleged. The answer admitted defendant was engaged in handling, storing and keeping automobiles and the contents thereof, but only such contents as might be deemed accessories and appurtenances to the automobiles, for the purpose of being safely parked, for a reward, at the garage or parking lot, to be returned to the proper person upon demand. Defendant denied that at the date, time and place alleged plaintiff requested the agent or servant of defendant, in charge of the garage, that it safely keep and store the zipper bag and personal property therein, and denied that it was agreed between the parties that defendant wonld safely keep the zipper bag and its contents. The answer denied that plaintiff presented his parking ticket on January 12, 1937, to defendant and paid defendant its reward therefor, and that the automobile and keys thereto were delivered to defendant, but the zipper bag and contents were not delivered as alleged. The answer also averred that defendant was not engaged in the business of storing for safe keeping any personal property other than automobiles and their usual customary appurtenances ; denied that its charter authorized it to do so; said that it never authorized any agents or servants to contract for it, for the safekeeping and storing of any such personal property other than automobiles and their usual accessories and appurtenances.

Plaintiff filed a bill of particulars describing the zipper bag and its contents, and giving the value of each article.

The cause was tried by the court and at the close of plaintiff’s evidence the court, on motion of defendant, entered a finding in its favor and entered judgment against plaintiff for costs. This appeal is from that judgment.

No evidence was offered in behalf of defendant. The sole question for determination is whether on the evidence submitted in plaintiff’s behalf, he was entitled to a finding and judgment in his favor. Plaintiff testified that he lived in Oak Park, was vice president and general manager of the Britman Electric Company; had been in that business for 20 years; that about 2:30 p. m. on January 11, 1937, he parked his Buick automobile at the southeast corner of 7th street and •Wabash avenue, back of the Stevens hotel, with a concern he afterward came to know as Public Auto Parks, Inc. He said there was a new bag in the automobile being used for the second time, and containing his personal effects he had packed to take on a business tour he intended making for a day and a night. When he drove into the parking lot he had a conversation with the attendant in charge; plaintiff says he pointed to the bag in the back of the car, told the attendant his personal effects were in it and asked him particularly if it would be advisable to leave it and if it would be safely kept in the car; the attendant said, “Tes, we will keep it safely, but leave your keys with me,” and plaintiff gave him the keys; at 2 o ’clock the following morning plaintiff called for the car, which was driven by a boy and which had the keys in it; when the boy stepped out of the car plaintiff called his attention to the fact that the bag was missing; plaintiff also paid the regular charge for storing the automobile; when he found the bag was missing he asked the attendant if it was possible it could be some place inside; the attendant said, “No,” that there wasn’t any bag inside and that he was the only attendant there at that time in the morning. At noon plaintiff returned and spoke to the manager, told him about the incident, and the manager suggested that he come back and see him later; plaintiff saw him the next day and asked him what he was going to do about it, and the manager said, “I don’t think we’re going to do anything about it.” Plaintiff testifies that the bag was a 30-inch brown alligator skin bag of the value of $30, and he describes in detail the contents of the bag and the value of each article. This was all the testimony offered or received in the case.

It was defendant’s theory, which the court accepted, that the evidence failed to make out a prima facie case in that it failed to establish that the parking lot attendant, with whom the plaintiff dealt, had any author-ity, apparent or real, to contract on behalf of defendant for the bailment'of plaintiff’s bag-and its contents. Defendant points out that the burden of establishing agency rests upon the party alleging it, and it argues that a porter or attendant employed on a parking lot has no apparent or ostensible authority to contract on behalf of his employer for the safekeeping of any property other than automobiles and their usual accessories and appurtenances. Defendant relies upon Chesley v. Woods Motor Vehicle Co., 147 Ill. App. 588. That case was called to the attention of the court at the trial. In that case the plaintiff was a salesman who traveled about the city in his car and carried a sample case. For a long time he had been in the habit of taking his car to the garage of the defendant for the night, and every night he had taken his sample case out of the car and given it to a colored attendant who waited on him; he did not leave the sample case in the car; he did not question the attendant as to whether it could be safely kept in the car and was given no assurance that it would be; on the contrary, he chose, it appears, to entrust his sample case to the personal care and attention of the porter without reference to any question of liability on the part of the defendant garage company. There was an entire lack of evidence of authority of .the porter, express or implied, to accept bailment of the sample case on behalf of his employer, and the evidence was clearly to the effect that the transaction w;as one between plaintiff and the porter personally. This was the ground of the decision of the court that the plaintiff could not recover. In that case, too, the plaintiff made no demand for his sample case for about three months after he left it with the porter, and in the meantime the employment of the porter by the defendant had ceased. The case is clearly distinguishable from the uncontradicted facts disclosed by the evidence in this case.

In passing on the motion of defendant for a finding in its favor at the close of plaintiff’s evidence, the question was whether plaintiff had made out a prima facie case, and in determining that issue, if there was any evidence in support of plaintiff’s case which, if taken to be true, with all reasonable intendments therefrom most favorable to plaintiff, which tended to establish his case, it was error to find against plaintiff and for defendant (Hill v. Richardson, 281 Ill. App. 75; White v. City of Belleville, 364 Ill. 577; Ziraldo v. W. J. Lynch Co., 365 Ill. 197.) The evidence established without contradiction that the attendant who waited upon plaintiff was the servant and agent of defendant. The only question here is as to the extent of his authority. He was, so far as the evidence discloses, the only person left in charge of the business of defendant. It was not necessary for plaintiff to prove actual authority. Defendant was as to plaintiff bound by the apparent authority of the attendant. In the absence of evidence tending to show the lack of authority every possible inference and intendment is in plaintiff’s favor. The principal is just as much bound by authority, which through his acts he appears to give, as by that which has actually been given. (Nash v. Classen, 163 Ill. 409.) The scope of an agent’s authority may be shown as well by circumstances as by proof of express authority. (Springfield Engine & Threshing Co. v. Green, 25 Ill. App. 106, 110.) As is said in 2 Corpus Juris Secundum, 1185,1186, sec. 91, an agent ordinarily “possesses the powers conferred directly upon him by the principal and certain incidental powers implied from those which have been thus conferred on the basis of necessity or custom, as well as such other powers as the principal has by his direct acts or by negligent omission or acquiescence caused or permitted persons dealing with the agent reasonably to believe that the principal has conferred and upon which such persons have relied.” There is no fact or circumstance in evidence here tending to limit the authority of this attendant other than the nature of the business which he was conducting in the name of his principal. So far as the evidence discloses he was in entire charge of the business on the premises. It would seem entirely reasonable to infer that he was at least authorized to make known to a customer whether a traveling bag of this kind might be left in the automobile. That authority would seem to be necessarily inferred from the fact that he was left in charge of this business. On the uncontradicted evidence, we hold the plaintiff was entitled to recover. The evidence for plaintiff is uncontradicted and the judgment will therefore be reversed with a finding that defendant became the bailee of plaintiff’s bag and its contents; that the same were lost through defendant’s negligence, and that the bag and the items within it were of the total value of $159.84, for which judgment will be entered in this court, in favor of plaintiff and against defendant.

Reversed with findings of fact and judgment here.

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


author: Mr. Justice O’Connor

text:
    Lyon & Healy, Inc., Appellant, v. Central States Hotel Company, Inc., Appellee. Central States Hotel Company, Inc. for use of Lyon & Healy, Inc., Appellant, v. South East National Bank of Chicago, Appellee.
    Gen. Nos. 40,082, 40,083.

      Opinion filed June 30, 1938.
    Bell, Boyd & Marshall, of Chicago, for certain appellant; Earl K. Schiek, of Chicago, of counsel.
    Landis, Landis & Landis, of Chicago, for certain appellee; Alvin Landis, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

August 12, 1937, plaintiff caused judgment by confession to be entered against defendant for $1,500, the balance claimed on a written contract executed by defendant. Afterward the South East National Bank of Chicago was served as garnishee. August 19th it filed its answer and on the same day an order was entered giving defendant leave to file a petition to vacate the judgment, which was accordingly done. Afterward an order was entered giving defendant leave to defend, its petition to stand as its affidavit of merits, the judgment to stand as security. January 7, 1938, there was a trial of the cause and verdict and judgment for defendant, and January 10th an order was entered discharging the garnishee. Plaintiff prosecutes an appeal to reverse the judgment entered against it on the merits and the judgment discharging the garnishee.

The record discloses that plaintiff sold defendant a Hammond electric organ and equipment and installed it in defendant’s restaurant located at 411 South Wabash avenue; that June 11, 1937, defendant executed and delivered to plaintiff its written contract whereby it agreed to pay $1,530.58 for the organ in instalments —- $120 cash and $59 monthly, plus a carrying charge of $6.83 a month. The contract provided that title to the organ should remain in plaintiff until paid for in full, and further, that it was “understood and agreed that no other agreement, oral or written, express or implied, shall limit or qualify the terms of this contract.” Shortly after the installation of the organ complaint was made by defendant that when played the music was too loud in certain parts of the restaurant and not loud enough in other parts. Plaintiff’s representative looked into the matter and the evidence is in conflict as to what was said by the parties. The testimony of defendant’s president and vice-president is to the effect that plaintiff agreed to remedy the trouble and endeavored to do so but was unsuccessful. Defendant’s vice-president testified, among other things, that after defendant made complaint plaintiff’s- representative called at the restaurant and was told about the unsatisfactory operation of the organ and said at that time, “The organ is too loud, but we can overcome that by asbestos strips or white material that you put into the organ to soften the sound,” and that plaintiff would do this. Defendant’s evidence is also to the effect that plaintiff’s representative said the monthly payments need not be made until the fault was remedied. Plaintiff’s representative, B. D. Karralcer, testifying denied he had said that plaintiff would put asbestos strips or white material into the organ to soften the sound, and said that there were no such strips or material. He further denied saying defendant need not - malee the monthly payments until the claimed defect had been remedied. This witness further testified that upon complaints made by defendant, he went to the restaurant, looked the organ over on two or three occasions, and that “the organ and sound box are absolutely proper”that he sent one of plaintiff’s acoustical engineers, a Mr. Morse, to look into the matter; apparently Mr. Morse went to the restaurant but he" was not called as a witness.

There is further testimony by defendant’s witnesses to the effect that the organ was being played at the time of the trial, which was January, 1938, about six months after it was installed.

Since we have reached the conclusion that there must be a new trial of the case, we refrain from further discussion of the evidence.

We think the testimony of defendant’s president and vice-president, to the effect that after the organ was installed plaintiff through its representative agreed to see that the defect complained of was corrected and until this was done defendant would not be required to make the monthly payments, was admissible. The document on which judgment was confessed, and which is the basis of plaintiff’s suit, we think does not represent the entire contract of purchase and sale; if it does, the contract is ambiguous. The material portions of it are as follows:

‘1 To Lyon & Healy, Inc.:
“In consideration of the sale to me by Lyon & Healy, Inc., of one Hammond Elec. Organ & P. A. Equip., I promise to pay to the order of Lyon & Healy, Inc., . . . for said merchandise . . . $1,530.58 plus carrying charge of $- per month, . . . said payments to be made in the following manner: $120 . . . cash down payment; . . . Instalments as follows: $59 per month; $6.83 per month monthly carrying charge, said deferred payments being due on the 15 day of each month beginning July . . . title to said merchandise shall be and remain in you until the above payments have been made in full. ... It is further understood and agreed that no other agreement, oral or written, express or implied, shall limit or qualify the terms of this contract.” It is signed and sealed by the defendant only. There is nothing in the document indicating that plaintiff was required to install the organ and equipment in defendant’s restaurant, but the evidence shows that plaintiff did so. The document recites that in consideration of the sale by plaintiff to defendant of the Hammond Electric Organ & P. A. Equipment (the nature of this equipment not appearing except that counsel for plaintiff say in their brief that defendant purchased from plaintiff the organ and “loud speaker equipment”), defendant promised to pay, etc. We think the document is incomplete and ambiguous and therefore the parol evidence was admissible to show the terms of the contract. The narrated conversations between the parties, to which we have above referred, were after the document in question was executed and delivered and after the installation of the organ and equipment, and parol evidence was therefore admissible. (See our opinion in Air Conditioning Corp. v. Honaker, 296 Ill. App. 221.) If, as plaintiff seems to contend, there ivas no express or implied warranty that the organ and equipment Avcre reasonably fit for the purpose for which it was purchased, Ave are of opinion that plaintiff would sell few organs because no one would buy “a pig in a poke.”

We are of opinion that the verdict of the jury to the effect that the organ did not operate properly, is against the manifest weight of the evidence. The witness Karraker was the only one who .testified who knew anything about the mechanism of the organ, and his testimony is that the organ and the sound box were in all respects proper. And counsel for plaintiff say that if the music of the organ was too loud in certain parts of the restaurant and not of sufficient volume in others, it was because of the acoustics of the restaurant and not any defect in the organ. We think this question ought to be gone into by witnesses who could qualify as experts on the subject.

■Since the judgment on the merits must be reversed and the cause remanded for a new trial, it follows that the judgment discharging the garnishee must likewise be reversed and the matter remanded. Obviously if the judgment on the merits were affirmed, the order discharging the garnishee would be the proper order. Morris v. Carroso, 292 Ill. App. 620.

The judgments of the municipal court of Chicago in cases Nos. 40,082 and 40,083 are reversed and the cause remanded for a new trial.

Reversed and remanded.

McSurely, P. J., and Hatchett, J., concur.


text:
    Charles Brignall, Appellee, v. Frank P. Merkle, Appellant.
    Gen. No. 40,095.

      Opinion filed June 30, 1938.
    Sidney J. and Arthur Wole, of Chicago, for appellant; Arthur Wolf, of counsel.
    Reuel H. Grünewald, of Chicago, for appellee; Robert F. Kolb and Francis M. Cooper, both of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendant to recover a claimed balance on three promissory notes. A writ of attachment in aid was sued out and levied on certain real estate. The attachment issue was tried before the court without a jury and an order was entered sustaining the attachment; defendant appeals.

Plaintiff heretofore made a motion to dismiss the appeal on the ground that the order was not appeal-able. The motion was reserved to the hearing. So far as the record discloses, defendant did not file any answer to the complaint but filed only what his counsel designate “plea in abatement,” in which they traverse the grounds of attachment. The case on the merits is still pending.

We think the motion to dismiss must be sustained. In Great Northern Refining Co. v. George C. Peterson, 214 Ill. App. 492, it was held that an order awarding a writ of attachment in aid was not final. The court there said (p. 493): “Is this a final order which maybe brought for review before there is a judgment in the principal suit? We hold that it is not. The attachment rests upon the principal suit; should the plaintiff there fail, the attachment falls regardless of its merit. Reviewing courts will not pass upon a case piecemeal, especially where the holding upon review may be nullified by the result of the principal suit. The order quashing the attachment is merely a ruling on a feature of the case incidental to the main claim.” And in Rabits v. Live Oak, Perry & Gulf Railroad Co., 245 Ill. App. 589, we held that an order denying a motion to vacate an order discharging garnishees, in an attachment in aid of a suit, was not appealable. We there said (pp. 591-592): “The merits of the case are not properly before us because there is no final judgment entered in the case. The attachment in aid was merely an adjunct to the main suit, and until there is a final judgment entered in the main suit there is nothing before us of a final nature that we can review. Firebaugh v. Hall, 63 Ill. 81.”

In the instant case, as stated in the Great Northern Refining Co. case, the attachment in aid rests upon the principal suit which is still pending, and should the plaintiff there fail, obviously the attachment will fail regardless of the issues raised on the attachment issue. We will not pass upon a case piecemeal when our holding may be nullified by the result of the principal suit. In 2 Ency. P. & Pr., p. 118, it is said: “A judgment in attachment proceedings merely auxiliary to the main action is interlocutory and unappealable before final judgment therein; but where the whole record is before the court, errors may be assigned on the judgment in attachment alone. ’ ’ And while the issues on the merits and the attachment are separate and distinct, and may properly be tried at separate times or together (Voss v. Evans Marble Co., 101 Ill. App. 373), yet we are of opinion that the trial judge, in his discretion, should try both issues together or as nearly at the same time as circumstances warrant. Where the attachment is tried first, the merits of the controversy should be disposed of expeditiously so that both issues may be subject to review in one proceeding.

The motion of plaintiff to dismiss the appeal is sustained and the appeal is dismissed.

Appeal dismissed.

McSurely, P. J., and Hatchett, J., concur.


author: Mr. Presiding Justice Hebel

text:
    John Heneghan, Minor, By Patrick Heneghan, His Father and Next Friend, Appellant, v. Joseph Goldberg, Appellee.
    Gen. No. 39,523.

      Opinion filed June 29, 1938.
    Rehearing denied July 12, 1938.
    Owens & Owens, of Chicago, for appellant.
    Simon Herr, of Chicago, for appellee.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This is an appeal by the plaintiff, John Heneghan, a minor, in a suit brought by Patrick Heneghan, his father and next friend, from an order entered by the court on April 8, 1936, setting aside the judgment on the answer of the jury in the affirmative to the special interrogatory finding the defendant guilty of wanton and wilful misconduct on the occasion in question.

The declaration 'upon which this action is based, consists of five counts, count two alleging that plaintiff was injured as a direct and proximate result of the wanton and wilful misconduct of the defendant in the operation of his automobile, the other four counts alleging various acts of negligence by the defendant.

A plea of the general issue was filed by the defendant ; also a special plea, which, on motion of the plaintiff, was stricken by the court.

The case was tried in March, 1936, and at the. close of plaintiff’s case the defendant filed a written motion that the court instruct the jury to find the defendant not guilty under the second count of plaintiff’s declaration, which motion was denied. At the close of all the evidence, the defendant filed a like motion, which was denied by the- court, and upon direction of the court, the jury retired and in due course returned a yerdict finding the defendant guilty and assessing plaintiff’s damages at $3,500.

A special interrogatory submitted to the jury asking whether the. defendant, Joseph Goldberg, was guilty of wilful and wanton misconduct at the time and place in question, was answered in the affirmative, and on March 12, 1936, the court entered judgment against the defendant for $3,500.

Subsequently, on April 8, 1936, the defendant filed a motion for a new trial, and the court upon due consideration of the motion entered an order that the judgment of March 12, 1936, on the answer of the special interrogatory submitted to the jury on the-trial of the case finding the defendant guilty of wanton and wilful misconduct be set aside, and further entered a judgment of not guilty as to the second count of the declaration charging wilful and wanton misconduct of the defendant, and judgment was entered on the several counts charging negligence.

It appears from the evidence that plaintiff, a minor 14 years of age, was selling newspapers at his stand at Lake street and Cicero avenue, a block north of Fulton street, Chicago. His hours at the stand were from 3 to 9 o’clock in the evening, and just before closing time on September 1, 1933, he was joined by five of his young companions who frequently visited him in the evening. The plaintiff closed his stand after he completed his work and he and the other boys went across to the west side of Cicero avenue and then southward to the northwest corner of Cicero avenue and Fulton street, Chicago, where they stood talking for about 10 minutes. At that point Fulton street going east begins about 150 feet south on Cicero avenue. Fulton street was 80 feet wide from building line to building line, and Cicero avenue was 66 feet wide.

On that evening, the street lamps were lighted; also those, of the stores along the street, including a large food mart directly across the street east from where the boys were standing. The intersection was well lighted, arc lights being located along Cicero avenue on each side of the street, one of the lights being on the corner where the boys stood talking. The evening* was fair and the streets were dry. The plaintiff and the other boys separated and the plaintiff walked east across Cicero avenue at the north crosswalk of Fulton street. There is evidence that he looked both north and south while crossing the street. When he left the curb he saw an automobile with bright lights about one and one-half blocks south. When he reached the middle of the street he saw that automobile about one-half block away. When he took another step or two he saw the automobile of the defendant about 15 feet away coming directly at him. It had no lights, and the bumper of the automobile struck the plaintiff, a minor, on the side;of his right leg and he was thrown against the radiator and then through the air to a place about 30 feet from where he was when struck. The automobile stopped close to where he was lying. From the facts and the evidence it appears that when the automobile came to a stop its front end was practically even with the south line of what the witness called an alley at the north end of the food mart on the east side of the street. The impact fractured plaintiff’s leg so that his leg below the knee was almost at a right angle with his knee; his upper incisor tooth was broken off, his face was cut, requiring stitching, and he sustained bruises and contusions about the entire body. As a result of the injuries, he was confined to the hospital for one month and in bed at home for several weeks, after which he remained in a wheel chair for some time, and then walked with the aid of crutches.

There is evidence in the record of witnesses who testified in court that at the time of the operation of the automobile which collided with the body of the plaintiff the headlights were not burning, and in the operation of the automobile it was running at a rate of speed from 30 to 45 miles per hour at the time of the accident. There is also evidence in the record that no horn was sounded by the defendant in the operation of the automobile just prior to the accident.

There is a controversy as to whether the defendant’s automobile lights were burning at the time of the accident; also as to the rate of speed at which the car was going when the accident occurred.

The defendant contends the evidence does not support the finding of the jury that the defendant was guilty of wilful and wanton misconduct, and cites the case of Bremer v. Lake Erie & Western R. Co., 318 Ill. 11, where the court said:

“If there is any evidence in the record fairly tending to show such a gross want of care as indicates a wilful disregard of consequences or a willingness to inflict injury, then it is a question to be determined by the jury whether the negligent conduct of the defendant amounted to wantonness or wilfulness. (Walldren Express Co. v. Krug, 291 Ill. 472.) What degree of negligence the law considers equivalent to a wilful or wanton act is as hard to define as negligence itself, and in the nature of things is so dependent upon the particular circumstances of each case as not to be susceptible of general statement. The gross negligence which will justify the presumption of wilfulness or wantonness is such as to imply a disregard of consequences or a willingness to inflict injury.”

We quite agree with the suggestion of the Supreme Court as to what conduct would necessarily justify the verdict of the jury that the defendant was guilty of Avanton and wilful misconduct at the time the alleged accident took place.

As we have already stated, there is evidence that this automobile was being operated by the defendant in the nighttime without lights, and that it was being driven at a speed from 30 to 45 miles an hour upon a public highway in Chicago, where —• as the evidence indicates — there were stores or business houses in a built-up territory. The street lamps were burning, and there is no doubt that the street in question was well lighted. The defendant, however, questions the testimony of the witnesses as to the rate of speed defendant Avas driving. Of course this was a question of fact for the jury, but there is evidence that he was operating his car at a rate of speed which the jury might consider implied a disregard of consequences and at such rate as would justify a presumption of negligent conduct amounting to Avantonness and wilfulness. While it is true the questions of fact were controverted in the main, still the jury passed upon these precise questions and decided the issues between the parties. The defendant also questioned the interest of the several Avitnesses, some of whom were the minor’s companions, and their credibility. In considering the various questions called to our attention, we are of the opinion they were for the jury to pass upon, and if there was any evidence which would tend to prove the allegation of wilful and wanton misconduct it was for them to determine whether the party charged with such conduct was guilty.

The defendant also contends that the verdict of the jury is clearly against the manifest weight of the evidence, but does not point out on what ground he bases his contention. The questions of fact were before the jury, and we believe the verdict returned by them is not against the manifest weight of the evidence.

The third and last contention is that the verdict finding the defendant guilty of wilful and wanton misconduct finds him not guilty of negligence. That depends upon the evidence. As we have previously stated, we believe the jury was justified in finding that the defendant was guilty of wilful and wanton misconduct, which was equivalent to negligence in the operation of his automobile.

The order of the court entered on April 8, 1936, reversing the judgment entered on March 12, 1936, based upon the answer to the special interrogatory submitted to the jury on the trial of the above cause finding the defendant guilty of wilful and wanton misconduct, and the judgment entered on the same date by the court upon the allegation of negligence in the several counts of plaintiff’s declaration were erroneous, and are reversed. Therefore, judgment upon the verdict of the jury for $3,500, is entered in this court.

Reversed and judgment here.

Demis E. Sullivam and Hall, JJ., concur.