author: Mr. Justice Culbertson Mr. Justice Dady,

text:
    Ethel Murphy, Appellee, v. George W. Brichler, Appellant.

      Dady, J., dissenting.
    ' Heard in this court at the October term, 1939.
    Opinion filed March 9, 1940.
    Kramer, Campbell, Costello & Wiechert and Norman J. Gundlach, all of East St. Louis, for appellant.
    Louis Beasley and Edw. C. Zulley, both of East St. Louis, for appellee.
   Mr. Justice Culbertson

delivered the opinion of the court.

Appellee, Ethel Murphy (hereinafter referred to as plaintiff), recovered judgment in the circuit court of St. Clair county in the sum of $5,000, against appellant, George W. Brichler (hereinafter called defendant), for personal injuries sustained by plaintiff as the result of a fall into a cellar opening, which occurred on premises owned by the defendant, but occupied by tenants.

The complaint alleged in substance (as is also shown by the facts), that the premises owned by defendant consisted of a two-story brick building located in the city of East St. Louis; that the first floor was occupied by a tenant who operated a tavern, which was used by the public; and that the second floor consisted of living quarters, which were occupied by another tenant. The defendant reserved the garages in the rear of the building for his own use. It was alleged in the complaint that he had constructed a certain trapdoor, which opened into the concrete porch (in the rear of the premises which he rented to tenants), for access to the basement by means of a stairway; and it was further alleged that the porch, trapdoor, and stairway were reserved by the defendant under his control and possession for the use of his tenants as a common passageway and approach by such tenants, and by members of the public generally, who patronized the tavern located on the first floor of the premises.

There were allegations of negligence in failing to provide a light, or guard rail near the trapdoor on the rear porch; and it was further alleged that the trapdoor in the rear porch remained open and unguarded, and that all of such facts were known to the defendant and were not known to the plaintiff prior to the time of the injury. It was also disclosed by the evidence that the defendant maintained grass and flowers, in the front of the building which was leased to the tenants, which grass and flowers were cultivated by the defendant.

The defendant testified that the basement, to which the trapdoor led, was “for the use of the whole outfit.” It was shown that both tenants used the cellar door and steps, and it was also shown that members of the general public entered the tavern from the rear door where the concrete porch was located. The evidence likewise disclosed that the defendant had placed a row of posts along the property line back of the tavern to keep people from driving over that portion of the yard. The defendant also testified that after the accident he placed a lock upon the cellar door and kept the key in his place of business. It was expressly stated, at the time such evidence was presented, that the evidence was being offered for the limited purpose of establishing that defendant retained control of such stairway and trapdoor which was used in common by the tenants.

It was further shown by the evidence that the plaintiff on the night of August 6,1937, after having visited with her husband in the tavern (in which she did not partake of any alcoholic liquors), left by the rear door and fell into the open trapdoor, as the result of which she sustained serious injuries. One witness testified to the effect that around six o’clock in the evening prior to the accident, the defendant had entered the basement through the trapdoor and had left the cellar door open. It was stated that such cellar door was not closed until after the accident had occurred. Defendant denied that he had been in the basement, or had left the trapdoor open. The plaintiff testified that as she left the tavern along the concrete porch, she intended to cross an adjoining vacant lot to join her daughter. She stated that it was dark and that she was unable to see that the trapdoor was open, and that after she had taken a few steps upon leaving the rear of the premises, she had fallen into the open hole.

Defendant presented motions for directed verdict at the close of plaintiff’s evidence, and at the close of all the evidence. Such motions were denied, and the jury which heard the case returned a verdict for plaintiff in the sum of $5,000. Motion for new trial was likewise denied, and judgment was entered for plaintiff on the verdict.

Defendant contends that the trial court erred in refusing to direct a verdict for the defendant, and against the plaintiff, at the close of all the evidence, for reasons which are generally summarized as being, that plaintiff had failed to prove her case by the quantum of evidence required by law; that there was no duty or breach of any duty by defendant to plaintiff ; and, that in any event there was not sufficient evidence of negligence on part of the defendant, or such negligence as contributed in whole, or in part, to the injury. General assignments that the verdict was contrary to law and the manifest weight of the evidence are, likewise, presented, as well as certain objections to the admission of testimony on behalf of plaintiff, and to the giving of instructions on behalf of plaintiff, which will be considered later in this opinion.

It is first contended by defendant that he, as owner of the premises, is not responsible for the injuries to plaintiff, but that if anyone on the premises was responsible, the responsibility was that of his tenants. This contention cannot be maintained under the facts. It has long been the settled law of this State that the landlord who rents various parts of a building to different tenants and maintains control of the porches, stairs, porchways, hallways, or other means of approach to the several portions of the building, for the common use of his tenants, has the duty to use reasonable care to keep the premises in a reasonably safe condition, and he is liable for an injury which results to persons lawfully in such building from his failure to perform such duty (Payne v. Irvin, 144 Ill. 482; Mueller v. Phelps, 252 Ill. 630, 633; B. Shoninger Co. v. Mann, 219 Ill. 242). Under the evidence in this case it cannot be said, as a matter of law, that the defendant was not under a duty to plaintiff, or that defendant was not guilty of any negligence proximately causing the injury sustained by plaintiff. The evidence presented on the trial tended to sustain the allegations of plaintiff’s complaint as to the liability of defendant, and this court may not now reverse the conclusion of the jury, as a matter of law, under the evidence, simply because the evidence on this subject was conflicting.

The defendant, likewise, contends that the plaintiff was guilty of contributory negligence, as a matter of law, for the reason that she left the premises by way of the rear door when there was available a front and side door for public use, and on the basis of various other alleged specific omissions to exercise due care and caution for her own safety. The evidence does not justify this court in concluding, as a matter of law, that plaintiff was guilty of contributory negligence. Plaintiff would not be required-to be on the lookout for open trapdoors even though she may have known of the existence of such trapdoors (Sprengel v. Schroeder, 203 Ill. App. 213, 215; B. Shoninger Co. v. Mann, supra), and she was, likewise, not charged with anticipating dangers and negligent conditions, but had the right to assume that defendant had done his duty to give proper warning of hidden dangers (Pollard v. Broadway Cent. Hotel Corp., 353 Ill. 312, 320). Under the evidence, as presented in the trial of this case, the question of contributory negligence, if any, on part of the plaintiff, was exclusively a question for the jury (Pauckner v. Wakem, 231 Ill. 276, 282; Mueller v. Phelps, supra).

It is, likewise, contended by defendant that the court erred in admitting evidence to the effect that defendant put a lock on the cellar door after the accident occurred, and kept the key in his office in the undertaking parlor, and, likewise, that he thereafter put a railing around the trapdoor. .A portion of such evidence was presented over objection on part of defendant, but it was expressly limited, and offered for the purpose of establishing the fact of control of the premises. Under such circumstances it was not error to present such evidence (Kellems v. Schiele, 297 Ill. App. 388, 394).

Defendant also contends that the receipt in evidence of hospital records, which were introduced in evidence by plaintiff over defendant’s objection, constitutes reversible error because entries in such records were not made by the doctor, who testified, or in his presence, but were made by internes, or other persons at the hospital. It was shown by the evidence, however, that the do.ctor who testified personally, stated that all of the records which were introduced pertaining to the condition of plaintiff, were correct, and in the same condition as when they were made at the hospital. The records to which reference is made, and to which the objection is sought to be raised, do not appear in the abstract. A court will not search the transcript of record for the purpose of finding a cause for reversal (Welch v. City of Chicago, 323 Ill. 498, 501, 502), and in absence of any showing wherein defendant was prejudiced by the admission of such records in evidence, defendant’s contention with respect to their admission cannot be sustained (Kimber v. Kimber, 317 Ill. 561, 572).

It is finally contended by defendant that the court below erred in the giving of certain instructions. Two of the instructions objected to advised the jury, first, that there is an implied duty imposed by law upon a landlord to keep common passageways, porches, or cellarways, which were retained under his control and used by his several tenants as a means of access to portions of the premises leased to them, in a reasonably safe condition, and that a landlord is liable for injuries received by a person lawfully on the premises because of the landlord’s neglect in performance of such duty; and (in another instruction) secondly, that if the jury believed, from a preponderance of the evidence, that the defendant rented the premises in question to different tenants, and reserved under his control the rear porch and cellarway leading from the porch into the basement, and that the porch and cellar-way were used in common by the tenants that, under the law, the defendant was required to use reasonable care to keep the porch and cellarway in a reasonably safe condition. Such instructions, under the evidence presented in this case, in the opinion of this court, could not have misled the jury. They were brief statements of the law applicable to the facts presented in evidence (Mueller v. Phelps, supra; B. Shoninger Co. v. Mann, supra), and while, under a different set of facts, they might have been misleading, it is the opinion of this court that no reversible error was committed in this case in the giving of such instructions.

Another instruction objected to read as follows: “The Court instructs the jury that plaintiff is not required by law to prove her case beyond reasonable doubt; it is sufficient that she prove her case by a preponderance of the evidence only.” The objection raised is to the use of the word “only.” We feel that, under the evidence, there is no merit to this objection, and that such instruction was proper (Pierson v. Lyon & Healy, 243 Ill. 370; Chicago City Ry. Co. v. Nelson, 215 Ill. 436).

Objection is likewise taken to another instruction, which advised the jury if it found from the greater weight of the evidence that the defendant had been guilty of negligence charged in the complaint, and had failed to perform a continuous duty in the matter of keeping the cellarway and rear porch in a reasonably safe condition, then, although it might also believe that the negligence of some other person concurred or contributed toward the accident in question, still such negligence of such third persons could be disregarded in arriving at a verdict. While this court feels that such instruction, as well as other instructions which were submitted by the plaintiff below, could be improved as to form and clarity, still, under the law (and in view of the evidence presented herein), there was no reversible error in the giving of such instruction (Paris v. East St. Louis Ry. Co., 275 Ill. App. 241, 251; Votrian v. Quick, 271 Ill. App. 259, 262, 263).

Defendant also objects to the giving of the stock instruction on damages in the form which has been approved many times by courts of this State (Wolczek v. Public Service Co. of Northern Illinois, 342 Ill. 482, 495, 496; Walsh v. Chicago Rys. Co., 303 Ill. 339). Defendant’s contention is that there was no evidence that any “wages” were lost, and that the instruction is erroneous for that reason. The evidence disclosed, however, that the plaintiff, who was normally occupied with household duties, had been doing some work for the board of assessors, and likewise disclosed that plaintiff was unable to do any kind of work for a long period of time, except during the few days when she did work for the board of assessors. In view of all the facts and circumstances in the case, we cannot conclude that there was any reversible error in the giving of such instruction.

There being no reversible error in the record, and substantial evidence tending to sustain all the material allegations of the complaint, having been presented by plaintiff, the judgment appealed from should be affirmed.

The judgment of the circuit court of St. Clair county in favor of the plaintiff, and against defendant, is, accordingly, affirmed.

Affirmed.

Mr. Justice Dady,

dissenting: I disagree with the majority opinion.

This case was tried twice. On the first trial the defendant was found not guilty, but the record does not show the reason why the trial court granted a new trial. There was no evidence as to permanent injury except as may be gathered by inference from the fact one of plaintiff’s coccyx bones was fractured. By plaintiff’s given instruction on damages she did not seek damages for any permanent injury. The verdict of $5,000 under the circumstances is a substantial one.

The evidence is such that this court cannot say as a matter of law that the plaintiff was in the exercise of reasonable care or that the defendant was negligent, or that the verdict is supported by the clear weight of the evidence. Therefore it was important that there should have been no material error in the instructions.

Plaintiff’s given instruction number 1 was as follows :

“The Court instructs the jury that there is an implied duty imposed by law upon the landlord to keep in a reasonably safe condition common passageways, porches and cellarways, retained under his control and used by the several tenants as the means of access to the portions of the premises leased to them, and that the landlord is liable for injuries received by any person lawfully-on said premises because of the landlord's negligence in performing this duty." (Italics mine.)

Such instruction was evidently copied almost verbatim from an abstract proposition of law stated in the opinion in Mueller v. Phelps, 252 Ill. 630, 633. In Norhevich v. Atchison, T., & S. F. Ry. Co., 263 Ill. App. 1, the court said: “Our Supreme Court, on a number of occasions, has commented upon the practice of converting sentences in the opinions of the court into instructions, and has held that it is a bad practice and one that often leads into serious error.” (See People v. Forte, 269 Ill. 505, 511).

Such instruction did not advise the jury as an abstract proposition what was the duty and liability of a landlord (as stated in the majority opinion), but told the jury it was the duty of-the landlord (in other words the defendant) to do certain things, and that the landlord (that is the defendant) was liable for injuries received by any person lawfully on the premises because of the landlord’s (that is the defendant’s) negligence in performing such duty. The plaintiff was injured and was lawfully on the premises, and the defendant was “the landlord.”

In effect this instruction was a mandatory instruction to find for the plaintiff, because it told the jury that the defendant was negligent and liable for the injuries, — without requiring the jury to find that the plaintiff was in the exercise of reasonable care.

In my opinion plaintiff’s “stock instruction” on damages was erroneous in telling the jury that “in estimating the amount of damages . . . the jury have a right to and they should take into consideration all the evidence . . . relating to plaintiff’s damages, if any; . . . the amount of money which the plaintiff lost as wages, if any, as a direct and natural result of such injury, if any, shown by the evidence; . . . ”

Plaintiff was a housewife. I do not find any evidence showing or tending to show that the plaintiff ever earned or worked for any wages whatever prior to her injury. The only evidence as to her ever working, either before or after the injury, other than doing housework, was brought out by the defense on cross-examination of her, and which evidence was to the effect that since the injury she worked for the board of assessors, going around visiting different people in taking their assessments. She was not asked and did not testify as to her wages for such work. This portion of the instruction on damages allowed the jury to speculate as to loss of wages, without any evidence on which to bage such speculation.

In my opinion the giving of these instructions was reversible error, — not cured by the giving of any other instruction.


source: Caselaw Access Project

author: Mr. Justice Dady

license: Public Domain

text:
    Evelyn Hohman, Appellee, v. Illinois-Iowa Power Company and E. E. Smith, Appellants.
    Heard in this court at the October term, 1939.
    Opinion filed March 9, 1940.
    Kramer, Campbell, Costello & Wiechert, of Bast St. Louis, for appellants.
    Joseph H. Goldenhersh, of East St. Louis, for appellee.
   Mr. Justice Dady

delivered the opinion of the court.

On September 15, 1938, the plaintiff, Evelyn Hohman, who is the appellee, filed in the city court of East St. Louis her verified complaint consisting of two counts. The first count prayed that a writ of man-damns issue against the defendants, Illinois-Iowa Power Company, a corporation, and E. E. Smith, who are the appellants. Both sides agree that the< only question for this court to pass upon is whether the trial court erred in ordering the writ as prayed in such count.

Such count alleged in substance that plaintiff was at the time of filing said complaint, and had been for a period of more than six months prior to August 23, 1938, the owner and holder of 444 shares of stock in the Illinois-Iowa Power Company, an Illinois corporation ; that on August 23, 1938, plaintiff caused to be served on defendants a demand in writing, demanding that plaintiff, by her attorney, be permitted to examine the books, records and list of stockholders of said corporation, and make such extracts therefrom as she desired; that she informed defendants of the purpose for which said examination was desired, to wit, “for the purpose of solicitation of proxies,” and that said purpose was a proper purpose for examination of said records in accordance with the statute, but that defendants refused to permit plaintiff or her attorney to examine said books, records and list of stockholders. The count then prayed that a writ of mandamus issue ordering defendants to permit plaintiff and her attorney to examine the books, records and list of stockholders of said corporation and make any extracts therefrom that plaintiff and her attorney should desire to make.

Such count stated that a copy of said demand was attached to the complaint. The copy so attached was directed to E. E. Smith, transfer agent, and to Illinois State Trust Company, registrar of said corporation, and notified them that plaintiff was then and had been the legal owner and holder of stock in said corporation for a period of more than six months prior to August 23, 1938, and" that plaintiff demanded that said transfer agent and registrar permit Joseph H. Goldenhersh, as plaintiff’s attorney, to examine on August 23, 1938, the books, minutes and records of share holders of said corporation, and that such attorney be permitted to make such extracts therefrom as he should desire.

The separate answer of each defendant admitted that the record list of stockholders of said corporation shows that plaintiff was at the time of filing such answer the legal holder of 296 shares of stock in said corporation, but denied that plaintiff had been the owner and holder thereof for a period of more than six months prior to August 23, 1938; admitted that a copy of said demand was served upon such defendant ; denied that in said demand the plaintiff informed such defendant of the purpose for which the examination of the record list of stockholders was desired; denied that in violation of the statute such defendant refused to permit plaintiff or her attorney to examine said books, records and list of stockholders, and denied that plaintiff was entitled to the relief prayed.

The cause was tried by the trial court without a jury.

On April 14, 1939, such court entered an order directing that the writ issue as prayed, to review which order the defendants bring this appeal.

The first contention of defendants is that the complaint does not state a cause of action, but the only specific objection thereto is that the allegation of the complaint “being predicated upon a legally insufficient demand fails to state a cause of action.” The record does not show that the sufficiency of the complaint was questioned in the trial court, where amendments, if necessary, could easily have been made. The statute, sec. 157.45, ch. 32, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 32.045], on which this action is based, provides that “Any person who shall have been a shareholder of record for at least six months immediately preceding his demand . . . shall have the right to examine ... at any reasonable time or times, for any proper purpose, its books and records of account ...” This statute does not require that the demand be in writing but the demand may be either written or oral or partly written and partly oral. (Pease v. Chicago Crayon, Co., 167 Ill. App. 31.) The written demand did not state the purpose of the examination and of the making of extracts. The complaint, however, not only alleges the making of such written demand but in addition alleges plaintiff informed defendants that the purpose thereof was the solicitation of proxies, which purpose in our opinion was a proper purpose. In our opinion the complaint sufficiently states a cause of action.

Defendants next contend that plaintiff had the burden of proving that the examination was for a proper purpose, and that plaintiff offered no such proof. The complaint alleged the purpose, which, as we have said, was a proper purpose. The answers do not deny that such was the purpose. Therefore the allegation of the complaint as to purpose was admitted, and the question of purpose was not in issue. (See sec. 11, ch. 87, sec. 164, ch. 110, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 109.435, 104.040].

The judgment of the trial court is affirmed.

Affirmed.


text:
    Madeline Holdoway, Appellant, v. Eugene Choisser, Appellee.

      Heard in this court at the October term, 1939.
    Opinion filed March 9, 1940.
    Rehearing denied April 16, 1940.
    Arthur W. Summers, of Eldorado, and Baker, Lesemann, Kagy & Wagner, of East St. Louis, for appellant.
    Wheatley & Combe, of Harrisburg, for appellee.
   Mr. Justice Dady

delivered the opinion of the court.

Plaintiff brings this appeal from a judgment for defendant entered in the circuit court of Saline county on a verdict of a jury finding defendant not guilty.

The complaint, in substance, charged that on the date of the accident, October 16, 1937, the defendant Eugene Choisser was the owner of an automobile and plaintiff was riding in said automobile as a guest without pay and with due care; that said automobile was equipped with brakes which were defective and dangerous to the safety of persons riding in said automobile ; that said automobile was not equipped with brakes adequate to control the movement of and to stop and hold said automobile; that said brakes were not in good working order and were not so adjusted as to operate as equally as practicable with respect to the wheels on opposite sides of the vehicle, as provided by statute, all of which was known to defendant but unknown to plaintiff; that the defendant wilfully and wantonly caused his agent to operate said vehicle and that the defective brakes caused a collision whereby plaintiff was wilfully and wantonly injured by the wilful and wanton conduct of defendant.

The answer of defendant specifically denied liability.

Plaintiff is a sister of defendant. At the time of the accident an automobile owned by defendant was being driven by Greek Ghoisser, the wife of defendant, and the only other occupants of the automobile were the plaintiff, her daughter, aged 7, and the mother of plaintiff and defendant.

Plaintiff and Greek Ghoisser testified for the plaintiff, but the other occupants of the automobile did not testify. All of the parties in question live in Eldorado, Illinois.

Greek Ghoisser testified that at the time in question she was driving to the town of Sparta to purchase a table with money given her by her husband; he knew she was going to make the trip and that plaintiff and his mother were also going, and made no objection; the day before the accident defendant told her to be careful of the ear, and that the brakes were bad; he warned her twice on the morning of the accident and said the car was dangerous and for her to be careful; the weather was clear and the road dry; while driving at about 45 or 50 miles per hour the car started swerving back and forth, “sorta shimmying” across the road; she tried to keep it under control by putting on the brakes and when she put on the foot brake the car went off the pavement and turned over on its side and plaintiff was injured; she noticed no trouble in operating and handling the car at any time before the “upset” and the first difficulty she noticed was when the car began to swerve back and forth; she did not apply the brakes before it began swerving; no one in the car made any complaint about her driving; she had driven the car at other times and until this morning she experienced no difficulty in the operation of the car.

Plaintiff testified that on the morning of the accident Greek Ghoisser asked plaintiff to go to Sparta, and Greek Ghoisser picked plaintiff up on the street; she and Greek Ghoisser rode in the front seat, and the mother and daughter in the rear seat; the traffic was light; the car began swerving and jerking and when Greek Ghoisser put on the brakes “we went over”; the front wheels quivered and shimmied; the car traveled from one side of the road to the other two or three times and when Greek Ghoisser slammed on the brakes the car plunged off the pavement and turned over'; she paid no fare or fee for the trip; there was nothing to indicate the car was unmanageable before the accident; the car began swerving from one side to the other two or three times and zigzagged about 200 feet and then Greek Ghoisser applied the brakes; she found no fault with the driving; before the accident nothing unusual happened in the operation of the car and there was nothing to indicate the car was unmanageable, and the first indication she had of the car not operating right was when it began swerving.

Jack Turner, a witness for plaintiff, testified that about October 2nd defendant drove the witness from Norris city to Chicago in the car in question and the witness noticed that when defendant applied the brakes the car would swerve, go back and forth across the road, and get out of control to a certain extent; he noticed this three times on the trip of about 615 miles; on such trip the car swerved seven or eight times but was only across the road three times; they drove about 50 miles per hour.

Defendant, called as a witness by plaintiff for adverse examination, testified that on the day in question his wife told him she was going to Sparta to buy a table and he gave her the money to purchase it; the car was a 1937 model which he had owned about five months and had driven quite often; he had some trouble with the car after he bought it; this trouble began two or three weeks after the purchase; when he went to put on the brake it would pull to the right or left; he took it back to the people he bought it from to have it corrected from pulling one way or another, and took it back to them from time to time for work on the brakes; about five or six weeks before the accident they put in new brake linings, which did not make much difference, if any, in the car’s actions; if the brake was put on at 45 or 50 miles per hour the car would pull; he had had that trouble quite often; he took the car back to the dealer six or eight or nine times for brake adjustments; when it started to pull to one side it took all or almost all of his strength to hold it on the road; the day before the accident he took the car to the garage to get the brakes worked on but they told him they were busy and he did not leave the car for repairs at that time; on the morning of the accident he told his wife to watch and be careful when she threw on the brakes; that “if you don’t, you are liable to have an accident”; he never told plaintiff about his car being in a dangerous condition; the car had hydraulic brakes and an emergency brake; he had driven it 14 to 15 thousand miles; the trouble he had had with the car was the brakes needing adjustment and he did not remember the car ever pulling bfm off the pavement by swerving.

The foregoing was all of the testimony material to a decision of this case. The plaintiff was severely injured, but it is not necessary to discuss the extent of such injuries.

The only alleged errors relied upon by plaintiff are that the trial court erred in giving instructions asked by the defendant, and in permitting counsel for defendant to examine defendant as a witness immediately after the plaintiff had concluded an adverse examination of defendant and before the plaintiff had rested her case.

To meet these alleged errors defendant first contends that plaintiff did not make out a prima facie case of liability as charged. In passing on this question we are bound to assume as true all of the evidence heretofore stated. Assuming such evidence to be true, the defendant knowingly and without any warning to plaintiff permitted her to be conveyed by his agent in his automobile which he knew was in a defective and dangerous condition by reason of defective brakes, —in such condition that if the brake was applied at 45 or 50 miles speed per hour the car would pull to such an extent as to require all of his strength to hold it on the road. If the jury believed this evidence they would have been justified in finding defendant guilty as charged.

In Richardson v. Moore, 254 Ill. App. 511, which was a case decided before the adoption of our guest statute, it was held that a guest in an automobile could recover from the driver for negligence of such driver in knowingly operating a car with defective brakes. One may be so grossly negligent as to be guilty of wilful and wanton misconduct. Bremer v. Lake Erie & W. R. Co., 318 Ill. 11; Nosko v. O’Donnell, 260 Ill. App. 544.

No Illinois case based on wilful and wanton misconduct has been cited in which the facts are similar. The guest statute of Connecticut and the guest statute of our State are alike. In Bryll v. Bryll, 114 Conn. 668, 159 Atl. 884, the facts were analogous to the facts in the case at bar. The Connecticut court held that the jury could reasonably find that the defendant was operating his car with such a heedless and reckless disregard of the plaintiff’s rights as to render him liable under the guest statute.

Having made a clear prima facie case, plaintiff was entitled to have the jury fairly instructed as to the law applicable to the case, regardless of the close relationship of the parties, and regardless of the fact that the testimony of defendant may have been unusually favorable to plaintiff. The following instructions were given at the request of the defendant.

Number 3 told the jury that “for an act to become wilful or wanton under the law it must be shown by a preponderance or greater weight of the evidence that there is a particular intention to injure or a degree of wilful or wanton recklessness which authorized a presumption of an intention to injure generally on the part of the person guilty of such an act. And under the law you have no authority to conclude that an injury was intended or that such an act on the part of the person complained against, was either wilful or wanton.” This told the jury they could not conclude, that is, could not find, that the defendant intended any injury, and could not find that the act or acts of the defendant were wilful or wanton, the effect of which was to give the jury no alternative except to find defendant not guilty. The giving of this instruction was reversible error.

In numbers 5, 6 and 12, collectively, the plaintiff was referred to six times as being the sister of the defendant. The fact that the plaintiff was such sister was proper to be considered by the jury but such relationship should not have been emphasized by the court. As a matter of law, the plaintiff was entitled to the same rights as though she were a stranger.

Number 2 stated that the mere violation of the automobile law in not having an automobile with adequate brakes does not constitute a wilfulness and wantonness as charged. Number 5 stated that although the jury might believe the accident was caused by some defect in mechanism, this would not justify the jury in finding the defendant guilty. Number 6 told the jury, among other things, that in determining whether defendant was guilty they had the right to take into consideration any instructions and warnings that defendant gave his wife as to the use and condition of the automobile. Each of these erroneously singled out certain evidence and was misleading. (Minnis v. Friend, 360 Ill. 328.)

Number 5 further told the jury that in determining whether defendant wilfully or wantonly injured his sister they had the right to take into consideration the fact that defendant permitted his mother, sister, wife and niece to ride in the automobile. While the jury had the right to consider these facts, the court should not have singled out and thereby emphasized such facts.

Number 9 defined an accident as an abstract proposition of law and should not have been given.

Number 12 told the jury that in determining whether the defendant was or was not guilty they had the right to consider the fact that defendant was not present at the time of the accident. Under the evidence in this case the absence of the defendant was wholly immaterial.

The question of whether it was or was not proper to permit the defendant, after adverse examination, to be interrogated by his counsel before the plaintiff had rested her case, is not necessary to be considered by us for the reason that the testimony adduced on such last examination was in no respect different from that brought out on adverse examination.

By reason of the giving of such erroneous instructions plaintiff did not have a fair trial.

The cause is reversed and remanded for a new trial.

Reversed and remanded.


text:
    James A. Day, Appellee, v. Charles M. Thomson, Trustee, Chicago and Eastern Illinois Railway Company, Appellant.
    Heard in this court at the October term, 1939.
    Opinion filed March 9, 1940.
    Whitnel, Browning, Listeman & Walker, of East St. Louis, for appellant; Kenneth L. Richmond, of Chicago, of counsel.
    Joseph B. McGlynn, of East St. Louis, for appellee; John J. Hoban, of East St. Louis, of counsel.
   Mr. Justice Dady

delivered the opinion of the court.

On June 22,1939, in the city court of East St. Louis, a jury returned a verdict in the sum of $35,000 in favor of the plaintiff, James A. Day, who is the appellee, and against the defendant, Charles M. Thomson, trustee, Chicago and Eastern Illinois Railway Company, appellant, for personal injuries alleged to have been sustained by plaintiff. Defendant’s motion for a new trial was overruled and judgment was entered on the verdict.

For the purpose of this opinion we do not deem it necessary to make any detailed statement of the facts on the merits of the case.

Plaintiff’s injuries were alleged to have been received on August 30, 1938. The amended complaint on which the case was tried was filed May 16, 1939. Defendant was ordered to file answer by June 5th, on which day such answer was filed. On June 13,1939, defendant’s motion for a continuance was overruled. On June 19, 1939, such motion for a continuance was again presented and again overruled and the case was called for trial. Thereupon all the jurors in the court room were sworn to answer questions on their voir dire and twelve jurors entered the jury box. Before any juror was examined, defendant’s counsel presented a written challenge to the array of jurors and moved that the entire venire be quashed and that the jury be discharged for reasons stated in such motion. This motion was overruled.

Inasmuch as this case is to be reversed and remanded for a new trial on other grounds, it will serve no useful purpose for us to pass upon or discuss the question of the propriety of the action of the court in overruling such challenge and motion.

The challenge was made in the presence of the jurors, but immediately, at the request of counsel for the defendant, the court directed the jury to leave the court room and to “take seats across the hall until called.” Thereupon counsel for defendant, in open court, proceeded to introduce evidence in support of the motion. As soon as the first witness had given his name, residence and occupation, the following took place in open court:

“The Court: This is not clever practice. Our Bar Association has always approved of this manner of selecting jurors and it seems to me it is poor sportsmanship and resorting to improper practices to serve other purposes. As far as I am concerned, I would just as soon excuse the jury for the term, but it seems to me that it is extremely poor tactics — corporations coming in in violation of our Bar Association understanding and the understanding among lawyers. It has been our practice here for many years to draw our juries in this manner, and this jury is just as good as any jury that could be drawn. This jury was drawn in exactly the same manner as we have been drawing jurors for years and years. The understanding among lawyers has been that it would be considered proper practice and all right. This disrupts the entire term of this court. So far as I am personally concerned, I would just as soon serve the corporations, grant them their desires and continue the whole term of cases.
“Mr. McGrLTira: (attorney for plaintiff) If the Court should determine that this jury is improperly drawn, let’s all go to work for the summer — let’s set all those cases down and try them in July or August when other people are on vacations.
“The Court: Well, that is just what should be done — it would mean trying cases in July. This is very poor sportsmanship, and I am surprised at the action of counsel. The granting of this motion would not serve any real purpose except possibly the ulterior motive of continuance. There have been two or three motions for continuance filed in this case already and when they have been overruled, as a last resort, you bring in this challenge on the ground that we do not use the legal method of selecting our jurors.
"
“Mr. Whituel: (attorney for defendant) In view of the remarks of the Court, I suggest—
“The Court: That I disqualify myself?
“Mr. Whithel: Yes, that’s it — in view of the remarks of the court.
“The Court: Let’s proceed.
ÍÉ
“The Court: You could have advised them that you were going to present such a motion and have prevented them from bringing all these witnesses here. I am surprised at the tactics of these corporation lawyers. This has always been a court of convenience— we always got our jurors without conforming exactly to the statute — lawyers know that. We have never conformed exactly to the statute and the lawyers knew that, but it has just been a gentleman’s agreement that it would be all right and no objection would be made on that ground. Now for the purpose of a continuance and throwing monkey wrenches at the Court for the first time it is challenged, after every other method of continuance had been exhausted — after agreeing at the last term that if the plaintiff would agree to a continuance there would be a trial at this term. Instead of coming in like gentlemen and keeping that promise that plaintiff’s counsel relied upon, you let them go ahead, bring in this array of witnesses and then present this challenge to the array. It is not ethical — it is not proper. If the plaintiff’s lawyers were to do that, you would want to have them disbarred. But if corporation lawyers do that, it is proper practice. It is not sportsmanlike. It is not ethical. It is not good practice to resort to such tactics to gain your purpose. In my presence Mr. Walker agreed at the last term that if it would be continued that term, it would be set the first day for this term and you would be ready for trial. It was set the first case and the plaintiff got ready and brought out-of-town witnesses. So I say that resorting to these methods is not proper — not sportsmanlike and not good practice.
‘ ‘ We have never attempted to conform to the letter of the statute. That has long been antiquated and this is probably the last jury we will have to get this way. You gentlemen have proven one thing. Your word is not any good. You agreed to give them a trial at this term and your word is not binding. I would not have the nerve to resort to such tactics as you gentlemen have resorted to. If I were to make an agreement with a lawyer, I would certainly keep it at any cost. One of the things that was said about old Alexander Flannigan, with all his faults, was that whenever he made an agreement with a fellow lawyer he kept it. Ton gentlemen, by filing this motion, have not kept the promise you made in my presence.”

Evidence in support of said motion was concluded in the forenoon. As soon as court convened after the noon hour counsel for defendant filed and presented a petition for a change of venue from the judge. The attorney for the plaintiff said he desired to offer evidence on the challenge and the court said, “Very well,” and the hearing continued without the petition for a change of venue being passed on.

At the conclusion of such evidence the challenge was denied. Thereupon the petition for a change of venue was again presented and was denied. Thereupon one medical witness testified for the plaintiff and court adjourned until the following morning.

As soon as court convened on the following morning counsel for defendant presented to the court a written motion verified by counsel, which motion stated that when court adjourned the previous night the jurors were permitted to separate and go to their respective homes for the night; that six of such jurors resided in the city of East St. Louis; that there was only one daily newspaper edited and published in said city, and that such newspaper had a daily circulation of approximately 14,000, and was sold and read in all parts of the city; that on the front page of the evening edition of said paper there was published on the night of June 19th the article hereinafter referred to, a copy of such article being attached to the motion and made a part thereof; that all jurors hearing said case had an opportunity to read or be informed of the contents of said article, and that defendant verily believed such article was read by or had come, or during the course of the trial would be read by or come to the attention of one or more of said jurors, and that defendant verily believed that said article had been read and discussed by many persons with whom said jurors would come in contact prior to their return to court on June 20th, and before the conclusion of the trial; that by reason of said facts the jury had become prejudiced towards the defendant and its attorneys. Said motion then prayed that a juror be withdrawn, a mistrial be declared and the cause continued.

The heading of this newspaper article was in bold type and the article was in words and figures as follows:

“Attorneys Here Challenge Array of City Jurors. Borders Recesses Court to Study Motion Filed by Lawyers.
“Eighty cases docketed for the civil setting this month in city court may be affected by a challenge of the jury array, a challenge made today in the case of James A. Day of Beecher City versus the Chicago & Eastern Illinois railroad.
“If the jury is disqualified in the railroad case, it also may be disqualified in separate challenges that may be made by attorneys in other cases on the docket.
“City Judge William Borders, after raking three attorneys over hot verbal coals, was scheduled to rule on the challenge this afternoon.
“Representing the railroad, Josiah Whitnel, Philip Listeman and Ralph Walker moved to disqualify the venire on grounds that statutes require the board of supervisors to draw new jury lists every two years; that the county clerk must be present when the venires are drawn from a master list; and that there should be a formal written order in city court requesting a venire.
“ ‘I’m surprised at the tactics of these corporation lawyers,’ Judge Borders declared. ‘This case was continued on agreement that the defense would be ready for trial this session. The promise was made in my presence. The statute providing for jury selection is antiquated. You resort to technicalities. Court is recessed until 1:30. ’
“Whitnel declared he knew nothing of any promise made by Walker to be ready for trial this setting. At one time two lawyers and Judge Borders were talking at the same time. Joseph McGlynn, counsel for the plaintiff, said 35 witnesses had come from as far as Beecher City, and that the plaintiff should have been notified the venire would be challenged.”

This was the only evidence offered on such motion by either side.

Thereupon the court denied the motion and the trial proceeded and continued to and was concluded on June 22, 1939.

It is fundamental that every litigant, regardless of the amount involved, is entitled to a fair trial. The amount of the verdict shows the importance of the case. There was a sharp conflict of testimony as to the extent of plaintiff’s injuries and on the question of liability. Therefore it was important that the jury be not prejudiced by any improper influence. It is not debatable that the attorney for the defendant had the legal right to challenge the array of jurors and obtain a ruling of the court on such challenge. He made this challenge at the first opportunity provided by law (St. Louis & S. E. Ry. Co. v. Wheelis, 72 Ill. 538). The motion was not frivolous but was based on debatable grounds. Defendant’s attorney made this challenge and motion in an orderly manner and he then proceeded to introduce his evidence in support of the challenge. It was the duty of the judge to allow or deny the motion. Instead of merely passing on the motion the judge severely criticised and denounced counsel, accusing counsel of improper and unethical practices and of poor sportsmanship and telling them “Their word wasn’t any good.” Not only did the court criticise counsel, but also said in effect that it was “Poor tactics for the defendant corporation coming in in violation of the bar association understanding and the understanding among lawyers, — in such a way as to disrupt the entire term of court.”

These remarks of the court were commented on and in part published in the newspaper article. Common sense tells us this newspaper article was undoubtedly read by some if not all of the jurors, and common sense and experience tells us that the jurors, while they were hearing the case, must have heard about and discussed the judge’s remarks.

In passing upon the effect of a newspaper article the court in the case of Meyer v. Cadwalader, 49 Fed. 32, said: “It is idle to say that there is no direct evidence to show that the jury read these articles. They appeared in the daily issues of leading journals, and were scattered broadcast over the community. The jury separated at the close of each session of the court, and it is incredible that, going out into the community, they did not see and read these newspaper publications. That these published statements were well calculated to prejudice the jury against the plaintiffs and deprive them of a fair trial is a proposition so plain that it would be a sheer waste of time to discuss it. Good ground, therefore, here appears for setting aside the verdict.” The Meyer and other cases are cited and quoted from in the case of Trohey v. Chicago City Ry. Co., 168 Ill. App. 1.

The remarks of the trial judge and the newspaper article must be considered together in determining whether the defendant had a fair trial. In our opinion these remarks in connection with the newspaper article were so prejudicial as to deprive the defendant of a fair trial.

No other question has been raised which we feel it necessary to pass upon in order that the case may be fairly tried in the trial court. The case is reversed and remanded for a new trial.

Reversed and remanded.


author: Mr. Justice Dady Mr. Justice Culbertson,

text:
    Marilyn Stine, Minor, by Albert D. Stine, Her Father and Next Friend, Appellee, v. Union Electric Company of Illinois, Appellant.

      Culbertson, J., dissenting.
    Heard in this court at the October term, 1939.
    Opinion filed March 11, 1940.
    Green & Hoagland, of Alton, for appellant.
    J. P. Streuber, of Alton, for appellee.
   Mr. Justice Dady

delivered the opinion of the court.

This is an appeal by the defendant, Union Electric Company of Illinois, a corporation, from a judgment in the sum of $850 in favor of the plaintiff, Marilyn Stine, a five-year-old child, in an action for personal injuries.

Counsel for defendant in their brief say there is no conflict in the evidence. No question is raised as to sufficiency of or variance from, the pleadings.

The accident occurred about 3:15 p. m. on September 17,1937, at the intersection of Tenth and Easton streets in the city of Alton. Both streets were paved. Tenth street runs east and west and Easton street north and south. Easton street was 30 feet wide. The width of Tenth street is not shown and is immaterial.

The south side of a driveway on the east side of Easton street was 23 feet north of the north curb of Tenth street. At the time in question defendant’s truck, headed north, was parked “against” and parallel with the easterly curb of Easton street. The mother of plaintiff testified the truck was parked between such driveway and the curb on Tenth street, and that “it took up all the space between the driveway and the curb.” No vehicle was in the vicinity other than the Malsom car hereinafter referred to and the truck.

The only description of the truck is “it had a cab in front and a little bed on the back wagon.” If the truck took up all the space between the driveway and the north curb of Tenth street as testified to by the mother, and there is no testimony to the contrary, then the truck was about 23 feet in length.

There was an 18 foot strip between the north curb of Tenth street and the north property line of such street, but there was no artificial sidewalk and no beaten path on such strip. Such space north of the curb of Tenth street was grown up to weeds. For a number of years pedestrians using the northerly side of Tenth • street have been walking on that part of Tenth street immediately south of the north curb of Tenth street and across Easton street immediately south of the south line of such north curb of Tenth street if projected across Easton street.

Plaintiff, while running west on Tenth street toward her home and across the northerly side of the intersection, ran into the easterly side of an automobile driven southerly on Easton street by a Mrs. Malsom.

Only two eyewitnesses testified to the accident. Mrs. Malsom testified that as she was driving southerly on the “west side” of Easton street the plaintiff ran westerly from behind the truck and into the side of the Malsom car; that coming down the street she (Mrs. Malsom) was going between 15 and 18 miles an hour but slowed up and at the time of the accident was going about 5 miles an hour. She said, “I looked to the intersection before I got to it but didn’t see the child before she came out from the truck.” Mrs. Martin, who lived on the northeast corner of the intersection just north of the driveway, testified that while sitting on her front porch she heard her boy and the plaintiff “trotting” westerly down Tenth street and saw them when they got to the corner; that the boy came home, and she did not see the plaintiff struck because the truck was between her and the plaintiff, and that the Malsom car was “not very far” in the street from the west curb.

The only other evidence as to the position of the automobile at the time of the injury is the testimony of Mrs. Martin that the Malsom car “was right at the intersection at that particular time,” and that plaintiff was maybe two or three feet out in Tenth street when plaintiff “was starting to pass the truck.”

The foregoing are the only material facts.

No complaint is made of the giving or refusal of instructions, or of the admission of evidence, or that the verdict is contrary to the weight of the evidence.

Defendant’s first contention is that inasmuch as there was in fact no sidewalk or beaten path along the north side of Tenth street it follows that there was no cross, walk on the northerly side of the intersection within the meaning of the statute hereinafter quoted and that therefore defendant did not violate the provisions of said statute by so parking its truck within 20 feet of the intersection.

The material provisions of the statute on parking of vehicles (ch. 95% [Ill. Rev. Stat. 1939, § 98, 109, 111, 187; Jones Ill. Stats. Ann. 85.130, 85.141, 85.143, 85.219]) are as follows:

Sec. 98. ‘ ‘ Definition on words and phrases. The following words and phrases when used in this Act shall, for the purpose of this Act, have the meanings respectively ascribed to them in this article.”
Sec. 109. ‘ ‘ Sidewalk. That portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines intended for the use of pedestrians.”
Sec. 111. “Crosswalk, (a) That portion of a roadway ordinarily included within the prolongation or connection of the lateral lines of sidewalks at intersections.”
Sec. 187. “ (a) No person shall stop, stand, or park a vehicle, ... in any of the following places: . . . Within 20 feet of a crosswalk at an intersection.”

With this contention of defendant we cannot agree. This being a remedial statute, “All general provisions, terms, phrases and expressions shall be liberally construed in order that the true intent and meaning of the Legislature may be fully carried out.” (Sec. 1, ch. 131, “Construction of Statutes” [Jones Ill. Stats. Ann. 27.13].) Ordinarily does not mean actually. Section 109 does not provide or require that the strip intended for sidewalk purposes be actually improved with or used as a sidewalk, and section 111 does not require that the cross walk be actually improved or designated in any particular way. The truck was in fact parked on and across that portion of Easton street that would ordinarily be included within the prolongation of the lateral lines of sidewalks at intersections. Any other view would be giving a narrow construction to the statute.

This contention of the defendant is untenable for the further reason that the complaint states and the answer of defendant admits in effect that there was such a sidewalk. The complaint alleges that the city placed dirt upon the “sidewalk” immediately adjoining’ the intersection of Tenth and Easton streets, eastwardly along the north side of Tenth street, and that the defendant caused a dangerous obstruction on said sidewalk, . . . and that “by reason of said obstruction placed on said sidewalk ... by said defendant,” etc. By its answer the defendant did not in any way deny there was such a sidewalk but denied that it negligently did place upon “the public sidewalk” and premises immediately adjoining the intersection of Tenth and Easton streets, and denied that it created a dangerous obstruction on “said public sidewalk” adjoining said premises, and denied that its work constituted a dangerous obstruction to the public using “said sidewalk” and street. In our opinion, by its answer the defendant admitted that there was a sidewalk as charged, and the question of whether there was or was not a sidewalk was not in issue. It being so admitted that there was a sidewalk, it follows that there was a cross walk within the meaning of the statute.

The only other contention of defendant is that if such parking was a violation of the statute the plaintiff has not shown that such violation proximately caused the injury to plaintiff. We cannot agree with this contention.

In determining whether plaintiff made a prima facie case, we cannot weigh the evidence but must consider the evidence most strongly in plaintiff’s favor, and give to it every reasonable intendment favorable to the plaintiff. (Blumb v. Getz, 366 Ill. 273.) What is the proximate cause of an injury is ordinarily a question of fact to be determined by the jury from a consideration of all the evidence. It can only be raised as a question of law when the facts are not only undisputed, but also such that there can be no difference in the judgment of reasonable men as to the inferences to be drawn therefrom. (Phillabaum v. Lake Erie & W. R. Co., 315 Ill. 131.) The negligent act or omission must be one of the essential causes producing the injury, but need not be the sole cause nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it causes the injury. (Thomas v. Chicago Embossing Co., 307 Ill. 134.) A violation of the statute prescribing a duty for the protection and safety of persons and property is evidence of negligence, if such violation caused or contributed to cause the injury. United States Brewing Co. v. Stoltenberg, 211 Ill. 531; True & True Co. v. Woda, 201 Ill. 315.) These are fundamental and well-settled principles of law. The difficulty is in their application.

In our opinion this case does not have to and cannot be decided on mere inferences or presumptions, as contended by defendant. Circumstantial evidence is competent and ofttimes more satisfactory than direct evidence. The only reasonable conclusion is that Mrs. Malsom could not see the child and the child did not and could not see Mrs. Malsom’s car until the child emerged from behind the truck. There was ample evidence tending to prove such facts, — hence the truth of such facts was a question for the jury.

The statute in question prescribed a duty for the protection and safety of persons and property, — the safety of pedestrians and those riding in vehicles. The accident that happened was one of the very things from which the imposition of this duty was designed to protect plaintiff and other persons. It seems self-evident that the parking of this truck materially interfered with the view of the child and of Mrs. Malsom. In fact, the jury would have been justified in believing and probably did believe that the view of Mrs. Malsom was so obscured as to prevent her seeing the child in time to take the necessary precautions to avoid the injury.

Defendant was bound to recognize the fact that children will be found playing in the street and that they sometimes attempt to cross the street unmindful of its dangers. (Morrison v. Flowers, 308 Ill. 189.) The defendant was prima facie negligent and the jury could well find that the injury to plaintiff was a natural and probable consequence of such negligence.

No Illinois case has been cited and we have found none which is analogous on the facts to the case at bar. However, there are several cases from other States which are closely analagous to the present case.

In Milbury v. Turner Centre System, 274 Mass. 358; 174 N. E. 471, a truck was parked in violation of a city ordinance prohibiting parking within an intersection or within 10 feet of a street corner, by being parked partly across a cross walk. In crossing the street, a five-year-old child passed about a foot in front of the truck and was about a foot beyond its outer side when he was struck by another car coming from the rear of the truck. The trial judge directed a verdict for the truck owner. The Supreme Court reversed such ruling, and on a stipulation as to the amount of the damages ordered that judgment be entered for plaintiff, and in so doing said: “In the case before us the ordinance related directly to the safety of persons using and passing street corners and sought to keep them clear in order that those using either the sidewalk or the way for vehicles might see the existing traffic in an intersecting street as well as in the way that they were using and act with full knowledge of conditions in the ways so that a violation would indicate negligent conduct. A jury could find that leaving a solid truck ten or eleven feet high close to a corner, cutting off the view' of an intersecting street and with the hood blocking from three to five feet of the space generally used as the sidewalk and approach to the street crossing, was a negligent act.”

In Kuba v. Nagel (Mo. App.), 124 S. W. (2d) 597, the defendant parked its truck, headed south, on the west side of a north and south street, at the northwest corner of an intersection in such a manner as to blockade the east and west cross walk, and in violation of a city ordinance which prohibited the parking of a vehicle so as to obstruct a sidewalk crossing. The decedent, a five-year-old child, in undertaldng to cross the north and south street from the west passed immediately in front of the parked truck and collided with the side of an automobile traveling southerly on such street. The court said: “In our view the ordinance is intended not merely to keep open the crosswalks at intersecting streets for pedestrians, but to add to the safety of pedestrians in the use of such crosswalks. . . . It is appellant’s contention that there is no evidence from which it may be legitimately inferred that if there had been no violation of the ordinance the boy would not have 'run out into the street with his head down, ’ and into the passing automobile, and that in this state of the record a jury could not, without resort to speculation or conjecture, find that absent the violation of the ordinance, the injury would not have occurred, and, therefore, under such circumstances, no recovery may be had as for a violation of the ordinance. This argument is without merit.

“In considering the facts which we have set out as they appear from the record before us upon the question as to whether or not the evidence shall be held sufficient on the question of causal connection between the injury to Victor Kuba, Jr., and the negligence charged against appellant to permit the case to be submitted to the jury, we have in mind that such causal connection may be shown by facts and circumstances which fairly suggest that the appellant’s negligence operated proximately to produce the injury to Victor Kuba, Jr., and which afforded a reasonable inference to that effect, reckoned with in light of ordinary experience and such conclusion as common sense dictates. . . .

“In our view plaintiffs adduced competent evidence sufficient, if believed, to sustain a verdict by the jury that if the crossing had not been obstructed the boy would not have run into the passing automobile, and that the negligent act of obstructing the sidewalk crossing by the truck was the efficient procuring cause of the injury, and that the injury to the boy was the natural and probable consequence of such negligence.

“In reaching this conclusion we have in mind that the party charged with negligence need not have anticipated the very injury complained of, or anticipated that it would have happened in the exact manner in which it did, but it is only necessary that after the injury is complete it appears to have been a natural and probable consequence of his act or omission.”

Knecht v. Lombardo, 33 Cal. App. (2d) 447, 91 P. (2d) 917, was an action to recover for injuries causing the death of a seven-year-old child. Defendant’s truck, in violation of the State law, was being driven in a westerly direction on the wrong side of a city street. Other vehicles were parked on both sides of such street.. Another truck was going in the opposite direction. The deceased ran from behind the defendant’s truck into the path of and was struck by the other truck. The court said: “We cannot, nor was the trial court authorized, in determining the motion for a nonsuit, to weigh the evidence or judge of the credibility of witnesses. ... It may reasonably be assumed, if some of the evidence is believed, that had respondent Lowenberger complied with the provisions of the California Vehicle Code and not parked his truck on the ‘wrong’ side of the street in the second lane of traffic, and had he not continued on the ‘wrong’ side of the street when driving away after completing his sale to Mr. Dillman, the view of the driver of the eastbound truck and the view by the child of the same truck might not have been obscured as the boy started across the street from behind respondent’s bakery wagon. Based upon the evidence in this case and the inferences reasonably deducible therefrom, we find no grounds which warranted the granting of a nonsuit.”

In Winsky v. DeMandel, 204 Gal. 107, 266 Pac. 534, a truck driver who parked his truck at an intersection so as to obstruct pedestrian travel in violation of a city ordinance, and his employer, were held guilty of negligence in causing the death of a child at an intersection proximately resulting from parking such vehicle in violation of the ordinance.

Blessing v. Welding, 226 Iowa 1178, 286 N. W. 436, is a well-considered case in which many authorities are reviewed. The court reversed a judgment of the trial court sustaining a motion to strike the petition (complaint). The Supreme Court said:

“Plaintiff, the wife of the driver of one of the automobiles involved in the collision, asks judgment against the defendants, claiming in her petition that on October 12, 1938, while a passenger in her husband’s car being driven east on Correctionville road in Sioux City, she sustained injuries by reason of a collision with a car driven by one Elder Beckstrom from the north toward the south at the intersection of two highways. At the northwest corner of the intersection there is a stop sign on the north-and-south road. The defendants’ truck was parked on the parking, or sidewalk, at the northwest corner of the intersection, immediately north of the stop sign, so that more than half of the truck was west of the west curb of Fairmont street (the intersecting street) so as to obscure such stop sign from the vision of drivers of cars coming from the north. Beckstrom, without stopping, proceeded into the intersection and struck the car in which plaintiff was a passenger, damaging the car and injuring the plaintiff. . . . ‘There was ample evidence to support the finding of the jury that the injury to appellee would not have occurred if the truck had not be eh so parked as to obstruct the highway. If it did obstruct the highway when parked there, and this obstruction was negligence, it was a continuing act of negligence up to the time of the injury, and whether it was negligence, and whether the injury would not have occurred but for this negligence, were questions for the jury.’ . . .
“The question of proximate cause as a general rule is a question of fact. The same rule applies as in other questions of fact. This has been determined so many times that it is hardly necessary to cite authority therefor.”

With these well-considered precedents before us, and with no precedent to the contrary, and on principle, it is our opinion that the judgment of the trial court should be affirmed.

Affirmed.

Mr. Justice Culbertson,

dissenting: The majority opinion in this case does violence to the doctrine of proximate cause. When it is stated that the “only reasonable conclusion” is that the driver of the car could not see the child and that the child did not and could not see the car which was coming down the street, until the child emerged from behind the truck, we are going far afield in my opinion.

There is no evidence in the case, in my opinion, which tended to show that the act of the defendant in parking its truck near the intersection referred to in the majority opinion, was the proximate cause, or even a joint efficient cause, of the injury.

The evidence clearly demonstrated that the automobile by which the plaintiff was injured, was traveling at the rate of about 5 miles per hour at the time of the injury, and that it had been traveling from 15 to 18 miles per hour before it had approached the intersection. It was shown that the truck of the defendant company was parked on the side of the street from which the plaintiff had run, and that the accident occurred toward the opposite side of the street. It was, likewise, shown that the street was 30 feet wide. There was no direct evidence that plaintiff was unable to see the Malsom automobile before the accident because of the position of the truck of the defendant company. The accident occurred after the plaintiff had already passed the truck of the defendant company. There is, in fact, no showing of circumstances from which a conclusion would reasonably or necessarily be drawn that the parking of the truck was the proximate cause of the plaintiff’s injury.

Circumstantial evidence can only be employed to establish liability in a case of this character when the facts are of such nature and so related that it is the only conclusion to be reasonably drawn therefrom, and mere conjecture and suspicion is not enough to establish the requisite causal connection (Savoy Hotel Co. v. Industrial Board, 279 Ill. 329; Ohio Bldg. Safety Vault Co. v. Industrial Board, 277 Ill. 96; Anderson v. Chicago, R. I. & P. R. Co., 243 Ill. App. 337; O’Connor v. Aluminum Ore Co., 224 Ill. App. 613).

I do not find myself in any way at variance with the principles announced in the cases cited in the majority opinion, but in my opinion none of the cases cited in the majority opinion can be, or should be, taken as a precedent for permitting a recovery in this case. In each of those cases the causation was of such character as to clearly establish the fact that the negligence of the defendant proximately contributed to the injury complained of. In none of those cases has a recovery been permitted where the facts fail to demonstrate a necessary causal connection between the injury complained of and the negligent act charged, as was true in the instant case. It is unnecessary to repeat the facts in such cases (which are set forth in the majority opinion), which demonstrate that the injury occurred, in each instance, in such manner that it was the only reasonable conclusion under the facts referred to in each instance that, the negligence charged was the proximate cause of the injury. While it is true we have no precise precedents in this State, I hold it is likewise true that none of the cases cited in the majority opinion can be taken as precise precedents under the facts in. the instant case. In the instant case the fact that the injury was sustained as the result of the child’s being struck on the opposite side of the street from the point at which the truck was parked when the automobile, which was being driven, had slowed down to a speed of approximately 5 miles per hour, in view of the evidence in the case, makes it manifest that the position taken in the majority opinion that, the only reasonable conclusion is that such injury resulted from the manner in which the truck was parked, is one which must necessarily be based on inference or speculation alone.

The reference in Blessing v. Welding, supra, cited in the majority opinion, to the effect that “the question of proximate cause as a general rule is a question of fact,” while sound as a “general” statement, is subject to the limitation that where the facts are of such character as to clearly establish a lack of proximate cause, the question becomes one of law for the court.

In the instant case we would be required to base an inference upon an inference and conclude that the plaintiff (who was unable to testify because of her age) sustained her injury because she did not see the Malsom car, and secondly, that she did not see the Malsom car because of the position in which the truck of the defendant company was parked. The court is not justified in a conclusion which is an inference based, not upon evidence, but upon another inference (Globe Ago. Ins. Co. v. Gerisch, 163 Ill. 625; Fitch v. Monarch Acc. Ins. Co., 239 Ill. App. 479). Under the evidence in this case it is purely speculative to conclude that the position of the defendant company’s truck proximately contributed to producing the injury of plaintiff. We should, therefore, conclude that the evidence failed to show that the manner in which defendant company’s truck was parked was the proximate cause of the injury sustained by plaintiff, and under the evidence as shown in the record, the court below shopld have directed a verdict in favor of the defendant, pursuant to its motion.

In view of such conclusion, I, accordingly, dissent from the majority opinion.


author: Mr. Presiding Justice Stone

text:
    C. D. Martin, Appellant, v. Village of Patoka, Appellee.

      Heard in this court at the October term, 1939.
    Opinion filed March 29, 1940.
    Rehearing denied May 6, 1940.
    Clausen, Hirsh & Miller, of Chicago, and Wham & Wham, of Centralia, for appellant.
    William A. Miller, Alfred S. Pfaff and Ward P. Holt, all of Salem, and George P. Coutrakon, Louis F. Gillespie and Gillespie, Burke & Gillespie, all of Springfield, for appellee.
   Mr. Presiding Justice Stone

delivered the opinion of the court.

This is an appeal by plaintiff, C. D. Martin, from a judgment of the circuit court of Marion county on a verdict finding the defendant, village of Patoka, not guilty in an action at law instituted by plaintiff against defendant.

On the night of October 2, 1937, and for some time prior thereto, plaintiff owned and operated a general store in the village of Patoka, and defendant operated and maintained its own light and power plant and electrical equipment, through which it supplied its customers, including plaintiff, with electricity. Plaintiff’s store building and contents were burned and plaintiff claims that this fire was caused as a result of the defendant’s negligence in the operation and maintenance of said electrical plant and equipment. The complaint alleged the plaintiff’s due care and charged the village with both specific and general acts of negligence, all of which defendant denied.

All of the evidence relating to the operation and maintenance of defendant’s light and power plant and equipment and to the actual occurrence of the fire was produced by the plaintiff. The complaint charged and the evidence showed that the village power plant generated 2,300 volts of electricity, which power went out over three main transmission lines to various distribution transformers throughout the village. One of these transformers was hung about 10 feet from the ground on two poles located approximately 90 feet from the rear of plaintiff’s store. The function of this transformer was to reduce the voltage from 2,300 volts to 110 volts, and the current after having been thus reduced passed from the transformer through feed wires to various consumers in the vicinity. Two feed wires led directly from this transformer to the plaintiff’s store.

On the night in question plaintiff closed his store about 9 o’clock. There was no fire in the store at that time. It had commenced raining about 7:30 p. m. and the rain continued intermittently throughout the evening. About 11:30 o’clock p. m. some disturbance occurred at the transformer so located near the rear of the store which caused an electric arc to form at such transformer, so plaintiff’s evidence showed, which arc continued for 10 to 15 minutes. About 15 minutes after the arc had ceased it was discovered that the plaintiff’s store building was on fire. The store building and a warehouse also owned by plaintiff together with their contents were totally destroyed except for about $200 worth of merchandise. Plaintiff’s loss as a result of the fire, as shown by the evidence, amounted to $39,103.98.

Plaintiff, by means of two expert witnesses, E. H. Freeman, professor of electrical engineering at Armour Institute of Technology, and Frank T. Egan, who had been employed by the Illinois Iowa Power and Light Company for a period of 28 years, gave testimony which tended to prove that the fire was caused by the passage of 2,300 volts from the primary to the secondary leads of the transformer without first having been reduced in voltage and thence into the wires of plaintiff’s store, which wires ordinarily carried only 110 volts. The wires in such store, according to these witnesses were not insulated for the high voltage and in their opinion a breakdown occurred somewhere in the wiring system within plaintiff’s store causing one or more electric áres which in turn started the fire. A piece of armored cable and a part of a fuse box were found in the ruins of the Martin store, both of which, according to the witness Freeman, showed signs of high voltage electrical burning as contrasted to burns received from the heat of the fire.

In several residences which were fed through this transformer the lights were burned out and witnesses observed light wires which sparked at about the same time the transformer burned out. A number of radios connected with feed wires from said transformer were “put out of commission” and witnesses testified as to a burning' odor coming from the radios. In a creamery which was located about one-half block from the plaintiff’s store, and which received current through such transformer, the fuse was burned out and certain wires and the lathes in the ceiling* near the wires were charred and burned.

Plaintiff introduced considerable evidence which tended to show that the defendant had failed to exercise ordinary care in the operation and maintenance of its electric plant and equipment. There was testimony showing that the insulators or porcelain bushings on the transformer in question had collected dirt and grease; that one of such bushings was cracked, and that the rubber insulation on the leads close to. the bushings was deteriorated and in a rotten condition. There was also evidence tending* to show the use of improper fuses on the primary leads of the distribution transformer and a failure to ground the secondary lead. In connection with the plant itself there was testimony to the effect that the plant lacked cut-out fuses and circuit breakers on the leads which carried the current from the plant and that such safety devices are required in accordance with good engineering practice. The evidence of such experts tended to show such conditions might or could have caused the fire.

Defendant relied principally on the expert testimony of one witness, S. J. Sibley, superintendent of municipal electric light and power plant of the city of Springfield, Illinois, who in substance disagreed with the conclusion reached by plaintiff’s experts to the effect that the fire was caused by excess voltage entering the wires of plaintiff’s store.

A defense witness, Robert Caldwell, testified that he was in charge of the power plant on the night of the fire, and when he observed a disturbance on the voltmeter, pulled his main switch and within five minutes left the plant to go to the plaintiff’s store. He further testified that he did not put any more juice through that circuit. This would tend to contradict the witness, Dona Jennings, whose testimony was to the effect that the transformer burned for possibly 10 or 15 minutes.

On the question of plaintiff’s due care, in the installation and maintenance of proper electrical wiring, the witness, L. W. Varner testified that his experience in such field was limited to his work as telephone and telegraph lineman in the employ of the Illinois Central Railroad Company, and house wiring of a general nature. His testimony was to the effect that in the installation of the wiring in plaintiff’s store, he referred to the underwriters’ insurance rules complying with those rules “the best he could.”

The testimony of the plaintiff himself was that he did not know the kind of fuses he had in the store and that he had trouble with them burning out prior to the time of the fire.

The question of plaintiff’s due care was for the consideration and determination of the jury. Jones v. Standerfer, 296 Ill. App. 145, 154; Blumb v. Getz, 366 Ill. 273, 277; Smith v. Courtney, 281 Ill. App. 530, 535; Glassman v. Keller, 291 Ill. App. 262, 269, 270.

Whether the defendant was guilty of the negligence charged in the complaint and whether that negligence proximately caused the injury complained of, was also a question for the jury. Hurst v. Madison Coal Corp., 201 Ill. App. 205, 207; Brunmoorth v. Kerens-Donnewald Coal Co., 260 Ill. 202; Waschow v. Kelly Coal Co., 245 Ill. 516.

It is not the province of this court to substitute its judgment for that of the triers of fact, where there is a conflict of fact and particularly, as in the instant case the cause of the fire, in the opinion of the experts who testified, was based upon conjecture and speculation, and was predicated upon the assumption of certain facts, about the existence of which there was a dispute.

Plaintiff contends that the trial court erred in overruling- the motion of plaintiff for a directed verdict at the close of all of the evidence. After a careful consideration of all of the evidence we cannot say as a matter of law there was no evidence tending to show defendant was not negligent as charged. Therefore the trial court did not err in denying* such motion, and did not err in denying plaintiff’s motion for a judgment notwithstanding* the verdict.

The court, at the request of the defendant over the objection of plaintiff, gave to the jury the following instructions:

“You are instructed that with respect to the damages claimed by the plaintiff in this case, that the law requires of him, before he can recover, that he show by the greater weight of the evidence, not only that such damages exist but also that it is the result of the negligence of the defendant as charged in said complaint or some count thereof and does not proximately arise from any other cause.
“The burden is not upon the defendant to show that the alleged injury did not arise from any other cause, but the burden is upon the plaintiff to show by a greater weight of the evidence that such damage exists as a result of the negligence alleged.
“The jury will not understand from this instruction that the Court intends to intimate that the defendant is liable or that it is not liable to the plaintiff for the alleged injury, or to intimate any opinion on any question of fact in this case.”

Objection is made that the above instruction placed the burden upon the plaintiff to prove not only that his damag’es were the result of the negligence of the defendant but further that such damages did not proximately arise from any other cause. It is the contention of counsel for plaintiff that the law does not require, in order for plaintiff to recover, that defendant’s negligence be the sole cause of his damages, but it is sufficient if such negligence, combined with the negligence of a third person an inevitable accident, or any other circumstances out of the control of the defendant causes his damages.

The instruction as given does no more than advise the jury, that in order for the plaintiff to recover damages, he must prove the negligence of the defendant as charged in the complaint and that plaintiff could not sustain his burden by proof of some other proximate cause thereof. The language used, plainly confines the allowable damages to anything that arises out of the negligence of the defendant, “as charged in said complaint, or some count thereof.” When the plaintiff sets out in his complaint the negligent acts of the defendant relied upon as a basis for recovery, he must of necessity establish those negligent acts and cannot recover by reason of negligent acts of the defendant which are not alleged in the complaint, even though the acts proven show the defendant was guilty of some other negligence that caused the injury complained of. Buckley v. Mandel Bros., 333 Ill. 368, 373; Ebsery v. Chicago City Ry. Co., 164 Ill. 518, 523; Geraghty v. William Grace Co., 157 Ill. App. 309, 311.

This instruction was limited to the question of damages, which the jury had no occasion to consider in view of its decision that the plaintiff was not entitled to recover. In the light of its confinement to the question of damages it was not probable that the jury was mislead. We are not inclined to hold that the giving of this instruction was error on the part of the trial court.

The trial court also gave the following instruction to the jury on behalf of the defendant over the objection of the plaintiff:

“You are instructed that ... if you believe from the evidence in this case that the fire at plaintiff’s store at the time and place in question was the result of an act beyond the control of the village, or the result of an accident which could not have been foreseen by the defendant village, then in either case you should find the defendant not guilty.” This instruction, so plaintiff’s counsel contends is erroneous in that it directs a verdict for the defendant if the jury believe that the occurrence was the result of a mere accident, and should contain the further proposition that such accident was not the result of any negligence on the part of the defendant.

Objection is made that the above instruction placed the burden upon the plaintiff to prove, not only that his damages were the result of the negligence of the defendant but further that such damages did not proximately arise from any other cause. It is the contention of counsel that the law does not require in order for the plaintiff to recover that defendant’s negligence be the sole cause of his damages but it is sufficient if such negligence, combined with the negligence of a third person, an inevitable accident, or any other circumstances out of the control of the defendant, causes the damage.

It seems to. us, that the language of this instruction in substance was approved by the Supreme Court in the case of Pressley v. Bloomington & Normal Ry. & Light Co., 271 Ill. 622, where at p. 633 it was said:

“The first refused instruction stated that plaintiff in error was not an insurer of the safety of wires nor of the public against accidents, and if they believed the death of Pressley was the result of an accident which could not have been foreseen by plaintiff in error they should find it not guilty. . . . These instructions (referring to the above and additional instructions discussed previously) were proper and should have been given.” The language of this instruction in the instant case by limiting the instruction to an accident which could not have been foreseen by the defendant, is synonymous with the modification suggested in the case of Cohen v. Weinstein, 231 Ill. App. 84, that the words, “without negligence of the defendant,” be inserted after the word accident, used in that instruction. The defendant would necessarily be not guilty of negligence if plaintiff’s injury resulted from an accident which was not foreseeable. Richey v. Jerseyville Illuminating Co., 176 Ill. App. 495, 498. To limit the instruction to “an accident which could not have been foreseen by the defendant” is the same in effect, as limiting it to an accident “without the negligence of the defendant.” As a matter of fact we are inclined to believe that the former phrase is a little more specific than the latter, and really defines the more generic phrase, “without the negligence of the defendant. ” We do not believe that the jury would be mislead by this instruction.

The lower court did not err in giving the above instruction at the request of the defendant, nor in overruling the motion of plaintiff for a new trial, and the judgment of the trial court will be affirmed.

Affirmed.


author: Mr. Justice Huffman

text:
    Charles H. Albers, Appellee, v. Charles Bierman et al. (Charles Bierman, Appellant).
    Gen. No. 9,525.
    Heard in this court at the February term, 1940.
    Opinion filed April 6, 1940.
    Feigen & Feigen, of Chicago, and Hall & Hulse, of Waukegan, for appellant; Arthur P. Feigen and Marshall Meter, of Waukegan, of counsel.
    William C. Connor, of Chicago, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

This action was a suit by appellee to foreclose a trust deed executed by appellant Bierman and one Hyman Goldstein, on December 15, 1926, to secure a note in the sum of $8,250, due LeRoy Bracher, and which represented the unpaid purchase price on certain real estate purchased by them from him. On or about January 6, 1931, Bracher obtained a loan from the Waukegan State Bank, in the sum of $8,305.13, for which he executed his collateral note, pledging therein as security, the above note and trust deed and delivering same to the bank. The bank appears to have gone into receivership in the early part of 1932. On June 12,1936, the receiver of the bank caused a notice to be served on Bracher by registered mail, advising him that the receiver did not wish to accept his offer to convey the pledged collateral in settlement of his note, and that the receiver had decided to reduce the collateral to possession by a sale thereof in accordance with the terms of the note by which the same was pledged; therein notifying Bracher that he would offer for sale at the offices of the receiver, at the Waukegan State Bank, at 1610 N. Sheridan Road, North Chicago, Illinois, the collateral pledged by his note, to the highest bidder for cash, and would thereupon credit the proceeds of such sale upon his note. The notice stated that the sale would be had at the offices of the receiver as aforesaid, on Wednesday, June 24, 1936, at the hour of 2:00 p. m. Bracher was requested to attend the sale. He received this notice, but did not attend. There were no bidders for the collateral in question in this case except the receiver, who bid the same in for $1,950 and credited Bracher’s note for that amount. (There was other collateral pledged by the note and sold at the same time, which is not involved in this suit.)

Appellee, on June 4,1937, filed his complaint to foreclose the trust deed which Bierman and Goldstein had given to Bracher to secure their note. Bierman and wife, Goldstein and wife, and the trustee named in the trust deed, were all made parties defendant. Appellant, Charles Bierman, is the only defendant who made any appearance, except that his wife made answer in the trial court. The effect of his answer and defense is, that appellee did not make such acquisition of title to the trust deed and note as a court of equity would recognize, and that therefore, this suit would not lie. Appellant urges that the receiver had no power to make sale of the collateral security in the manner in which the same was done, without first having secured an order of court so to do; that appellee did not secure such order, and therefore the sale was void; and that he took no title to the collateral by virtue thereof. The cause was referred to a master, who found the equities with appellee and recommended decree of foreclosure in accordance with the prayer of the complaint. Decree was rendered in accordance with the recommendation of the master, and appellant prosecutes this appeal.

The note by which Bracher pledged the collateral, provided that the holder thereof, its successor, agent or assignee, was authorized to sell all or any part of the collateral pledged, on the maturity of the note or at any time thereafter, or before maturity in case the securities pledged were depreciating in value in the opinion of the holder, its successor, agent, or assignee ; and that such sale might be public or private, at the discretion of such holder, and without advertising the same or demanding payment or giving any notice. The note contained all the usual and customary provisions of a collateral security note and is such as is in-common use by banking institutions in such transactions. It was long past due prior to the day the receiver sold the collateral thereunder.

It is the position of appellee, that as receiver of the bank, he had the power to make sale of the pledged collateral, as provided by the terms of the note, and thereby became the legal, as well as the equitable owner of such collateral; that as receiver of the bank, it was his duty to collect and conserve its assets for the benefit of its creditors; and that in pursuance of such duty, he had the power to make sale of the collateral as done herein, in order that steps might be taken to reduce the same to liquid assets.

No fraud or bad faith is charged or appears. The note and trust deed arose by virtue of a sale of real estate by Bracher to Bierman and Goldstein. The note and trust deed were pledged by Bracher to the bank as collateral to a loan made by the bank to him. None of the parties have paid their obligations. Therefore, we are aware of no equities that could exist on behalf, of appellant Bierman with respect to the note and trust deed; and unless the act of appellee in subjecting the same to sale under Bracher’s note is void, the decree herein should be affirmed.

It is the duty of the receiver of an insolvent bank to collect and conserve its assets for the benefit of its creditors. The statutes in most States confer appropriate powers upon such receiver to collect and protect the assets. Pursuant to the purpose and intent of such statutes, the receiver may take the necessary steps to secure possession of the assets of the bank, or their value. In the discharge of such duties, he is entitled to exercise a sound discretion. In harmony with these general principles, it is provided by sec. 11 of the Banking Act of this State (sec. 11, ch. 16%, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 10.11]) that, “Such receiver, under the direction of the Auditor, shall take possession of, and for the purpose of the receivership, the title to, the books, records and assets of every description of such bank, and shall proceed to collect all debts, dues and claims belonging to it, . . . .” A duly appointed bank receiver may foreclose in chancery a trust deed of which the bank was the equitable owner. McConnell v. Jones, 332 Ill. 620, 623.

The State banking official and the receiver in possession and control of the property and affairs of an insolvent bank, stand in its place, and take the bank’s estate and succeed to all its rights as of the time of the adjudication of insolvency. They may be said to be acting in hen of its officers. It is their duty to proceed to collect the assets, as this is the thing necessary to the proper administration of the affairs of an insolvent bank and is the purpose of the receivership. Pursuant to such purpose and duty, the receiver may use all legal means to collect any indebtedness to the defunct bank, that the bank itself might use. The manifest intent disclosed by the statute is, that a bank shall be liquidated with a minimum of time and expense. In furtherance of this purpose and legislative intent, we are of the opinion that appellee receiver was acting within the scope of his authority in liquidating the assets of this bank, when he subjected the collateral involved herein to sale under the terms of Bracher’s note.

The decree herein is affirmed.

Decree affirmed.