author: Mr. Presiding Justice Matchett

text:
    Miralago Corporation, Appellant, v. Village of Kenilworth, Appellee.
    Gen. No. 39,213.
    Opinion filed May 10, 1937./
    Rehearing denied May 24, 1937.
    Urion, Bishop & Sladkey, of Chicago, for appellant; Howard F. Bishop and Jerome J. Sladkey, of counsel.

      Schuyler, Weinfeld & Hennessy, of Chicago, for appellee; Allan T. Gilbert and Jay Stough, both of Chicago, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

In an action on the case, at the close of all the "evidence the court instructed the jury to return a verdict for defendant and entered judgment on the verdict, from which plaintiff appeals. The amended declaration contains seven counts, which in substance charged that defendant wrongfully shut off the water supply from plaintiff’s premises on March 8, 1932, whereby the building situated thereon was burned. Three of the counts charged that the act of defendant was wilful, wanton and malicious.

It is contended the court erred in directing a verdict for defendant, in denying plaintiff’s motion for a new trial and in excluding evidence offered by plaintiff. The controlling question in the case, and the only question which it will be necessary to consider, is whether the evidence excluded and received would have authorized the jury to return a verdict for plaintiff.

Facts proved and offered upon the trial and admitted by the pleadings may be summarized as follows: March 8, 1932, “No Man’s Land” was an unincorporated area of about 25 acres of land north of Chicago, lying on the north lake shore and immediately south of the village of Kenilworth. In this area of No Man’s Land the Foreman Trust and Savings Bank, as trustee, was the owner of a large building, the first and second floors of which had been leased to the plaintiff, Miralago Corporation, for use as a restaurant and ballroom. Under the terms of the lease plaintiff made certain repairs on the premises.

March 8, 1932, at about 4:30 p. m., the building on the premises caught fire. It stood on Sheridan Road about 100 yards south of the boundary line of the defendant village, and about the same distance from a hydrant of the village, located on the northwest corner of Sheridan road and 10th street. Upon discovery of the fire the employees of plaintiff called the fire department of Evanston, which arrived with its equipment about five o’clock. In a few minutes the Evanston department unrolled its hose and gut in position; there was a dead plug in No Man’s Land immediately south of the Kenilworth plug, to which the firemen at first hooked their hose. Mr. Summers, a police officer of defendant village, suggested the fireman should attach the hose to the Kenilworth plug, saying, 1 ‘ Come over here. That plug1 is dry. Hook up here.” At this time practically no damage had been done by the fire. The Evanston firemen then hooked to the Kenilworth hydrant and began the use of water and continued to use it for about half an hour, at which time, plaintiff’s witnesses say, the fire was “practically killed” and would have been extinguished in a few minutes if the water supply had been continued. At this time, however, two police officers of defendant village, accompanied by the village manager, Mr. Streed, shut off the water at the Kenilworth hydrant, using a long-handled wrench in an underground valve outside the hydrant. There was no fire in the defendant village at this time requiring use of water. The evidence tends to show that the village manager stated, “We have let you have the water long enough” or “You have used the water long enough.” The firemen uncoupled the hose and rolled it up. From 30 to 45 minutes later Mr. Clark, the village clerk, told Chief Hostetter of the Evanston fire department that he could now have water, and that it would not again be shut off. The evidence shows that it was a cold day; the thermometer was about zero; the hose and joints were frozen and required thawing out with hot water; it took some time to thaw out the equipment and by the time the hose was again connected the fire had gained such headway that the building was burned to the ground, including all the property of plaintiff, notwithstanding the efforts of the Evanston firemen to save it.

The evidence tends to show that the village manager of defendant first heard of the fire about 4:45¡ p. m.; that he was then in the village office in a room occupied by himself, the chief of police and police captain, whose desks were near each other; that the village manager discussed the fire with officer Bradley, who ’phoned him from the scene of the fire at about 5:10 or 5:15 p. m.; that shortly before or after this conversation with Bradley Manager Street talked with William Demetreon, the proprietor of a barbecue stand adjoining the Miralago building. Before talking to them he spoke to Arne Mark, engineer in charge of defendant’s water pumping station. After this conversation Bradley came from the scene of the fire to the village office. At about 5:15 Streed left for the fire. A memorandum on the police docket, with the time .notation 5:15 p. m., shows that the Evanston Fire Department arrived at 5:00 p. m. Plaintiff called Manager Streed as a witness for cross-examination under the Civil Practice Act, 111. State Bar Stats. 1935, ch. 110; Jones 111. Stats. Ann. 104.001 et seq. Other of the employees of the defendant village were also called. Streed said he did not recall that he was told the water was being used, but admitted that in prior testimony he said that the officer called and told him it looked as though the Evanston fire department was using* defendant’s water for fighting the fire. Bradley testified that when he called the village office at 5:15 he “thought probably they were using water,” and admitted giving testimony to that effect in his deposition given at a prior time. Arne Mark, engineer in charge of the water works, testified that Streed told him, “if necessary I should go down and shut the water off,” and “he said he thought they might want to use it for the fire.” The pumps at the water station controlling the pressure in the water tank and the amount of water in the tank were shut off at around 4:15 o ’clock by order of Manager Streed. The records of the pumping station show that the pumps were again started by hand at 5:15 p. m., were shut off again at 6:00 p. m., and turned on again at 6:20 o’clock. The manager of defendant sent a bill in favor of the village to the Foreman Trust & Savings Bank, as trustee, for the sum of $240.02 on account of the water used. The bill read, “Water furnished for fighting fire.” The owner of the building paid $100 on account of this bill. A letter which accompanied the bill stated:

“We are enclosing . . . our bill . . . for water furnished for fighting fire. . . . It is our regular policy not to operate our water plant in winter between dusk and dawn. ... At the time the call for water came, our plant was shut down for the night and when it was decided to furnish water for this fire it was necessary to start our pumps again. ...”

Computation of the amount due for furnishing this water was made by Ley, the water superintendent, by direction of the manager, and he was told to compute the charge from the time permission was given to use the water. Computation indicates that permission for the use of the water was given at 5:30 p. m. There was evidence from which the jury could have found that Streed, the manager, knew about the permissive use of the water, and that he was responsible for turning it off. There was also evidence tending to show the fair cash market value of the items on account of which damage is claimed by plaintiff amounted to $76,451.13.

The briefs of the parties discuss at length and with numerous citations of authority the question of whether defendant, in furnishing water to plaintiff through its hydrant, exercised a governmental or private function. Plaintiff argues that defendant acted in a private capacity and is therefore liable upon the same principles that would be applied in the case of a private owner. Defendant contends that extinction of a fire by a municipal corporation is the performance of a governmental function for which it cannot be held liable on account of the negligent performance thereof. Plaintiff relies on Roumbos v. Chicago, 332 Ill. 70, where the court said that in the determination of the responsibility of a municipal corporation in such cases the inquiry should be whether the agents, by reason of-whose alleged negligence liability of the municipality was predicated, were performing a public duty imposed by law or carrying out private functions which were for its special benefit or advantage, the principal question being not necessarily whether the municipality would derive a pecuniary advantage, but whether the transaction affected primarily the interest of the locality and its inhabitants or the general public. Plaintiff also cites cases such as People v. Schlitz Brewing Co., 261 Ill. 22; and Wagner v. City of Rock Island, 146 Ill. 139, each of these cases holding that (under the circumstances there appearing) where a municipality under the statute furnishes water and constructs and operates water works, it does so in a proprietary rather than a governmental capacity. Other cases which it is argued so hold are Springfield Gas & Electric Co. v. City of Springfield, 292 Ill. 236; and Eastern Illinois Normal School v. City of Charlestown, 271 Ill. 602.

The brief of plaintiff asserts a tendency in the cases in the direction of sweeping away distinctions between the activities of the municipalities in these respects in so far as their liability in tort is concerned. It is argued that under the facts defendant is liable upon either theory. Plaintiff says that defendant confuses the fact that the water furnished was used to extinguish a fire with its own interpretation that defendant was engaged in extinguishing a fire. Plaintiff says defendant was not extinguishing a fire but selling water. The only purpose of showing the use of the water is in order that the amount of damages might be ascertained and determined. The water, says plaintiff, might just as well have been used to supply a truck garden or a hospital or any other institution, and if the arbitrary cutting off of the water in the one case resulted in the death of a patient, or, in the other the loss of crops, defendant would be liable but not upon the theory that defendant was conducting a hospital or engaged in horticulture. The point, so it is contended, is illustrated by the case of City of Chicago v. Selz, Schwab & Co., 202 Ill. 545, where the city was held liable for water damage to plaintiff’s stock of goods, resulting from the breaking of a connection at the bottom of a fire hydrant, which blew out a pipe, permitting the water to rush into the basement where the goods of plaintiff were stored. The Supreme Court held the city liable upon the theory that the city conducted the water system of which the hydrant was a part, both in its private and corporate capacity; that the water system was not used exclusively for a public function in putting out fire under the exercise of the police power; that if the break resulted from the negligence of firemen engaged in the line of their duty in putting out fires, the "city would not have been liable, but since the break was not from that or any other similar cause, the city might be held guilty. The plaintiff says: “An examination of this case and these rulings makes it clear that the reason why the city was held liable in the Selz, Schwab case was, First, the fire hydrant was a source of income; Second, the fire hydrant was not being used in putting out a fire under the exercise of a police power; and, Third, the break did not result from the negligence of firemen engaged in the line of their duty in extinguishing a fire. ’ ’

Applying these rules to this case it is argued defendant is liable because, first, the supply of water from this hydrant was a source of income to defendant. The water was not supplied without charge. Second, the water was not used,, for public protection in the exercise of the police power. The defendant, it is said, could not exercise this power outside its territorial limits. Third, negligence charged against defendant was not by defendant’s employees in the line of their duty as firemen. Fourth, the wrongful acts of defendant were malicious.

It is contended that whether defendant knowingly permitted the use of the water, the affirmative act of defendant in shutting it off was tortious. Plaintiff invokes the rule that wherever a person is put in such a position in regard to another that it is obvious that if he does not use care in his own conduct he will cause serious injury, the duty arises to use care commensurate with the situation, and that for the negligent failure to perform that duty he will be liable in damages. In this connection are cited DePue v. Flatau, 100 Minn. 299, where the defendant was held liable to a cattle inspector who, when ill, was refused permission to stay over night at the home of the defendant farmer and was by him sent ón his way in inclement weather, whereby he was nearly frozen to death. Metallic Compression Casting Co. v. Fitchburg R. Co., 109 Mass. 277, where a railroad company drove a freight car over the hose a fire company had placed across the track, thus damaging the hose to such an extent as to cause the loss of plaintiff’s building by fire. Clark v. Public Service Co., 278 Ill. App. 426, where the defendant was held liable in tort at the suit of plaintiff, whose residence was destroyed by fire as a result of defendant who, arbitrarily and after the fire started, removed its meter and cut off its service wires, thus preventing plaintiff from using an electrical water pump, whereby for lack of water the building of plaintiff was destroyed by fire. Mullen v. Otter Tail Power Co., 130 Minn. 386, where, although there was no contractual relationship, a defendant was held to be under a duty not to cut off the supply of electrical current arbitrarily, whereby plaintiff was left without light needed to remove stock and fixtures from a burning building. Plaintiff also calls attention to a suit by two men against a steamship company, who, plaintiffs alleged (they being on a raft in midocean) were observed by the ship, which did not pick them up when requested so to do. Plaintiff says:

“If the original use of water was not tortious, then the deliberate discontinuance without notice must be actionable, regardless of official permission or notice of such use. This, then, is true whether or not the village authorities permitted the use of the water initially or whether or not they had notice of the permission that was given by the police officers, and the discontinuance of the supply under the circumstances must constitute either negligence or more probably wilfulness and wantonness.” It will be noted that in none of these cases was the defendant a municipal corporation, a circumstance which, as we hold, creates a distinction which is vital and controlling.

The further contention is made that even conceding that in furnishing this water defendant was exercising a governmental function, there was evidence which should have been submitted to the jury on the thedry that the injury to plaintiff was wantonly and wilfully inflicted with malice. Plaintiff cites a number of cases, which we have examined and find that no one of them sustains the theory that where the injury to plaintiff came through the exercise of a governmental function, a defendant municipality could be held liable even if the damage was wanton and wilful or even malicious. Plaintiff cites City of Chicago v. Seben, 165 Ill. 371, which simply holds that where a city exercises the duty of constructing a sewer, it is liable to a party damaged for doing the work negligently. Lee v. Village of Sandy Hill, 40 N. Y. 442, where the general principle that a city is liable for both nonfeasance and misfeasanee is stated. A note in 69 L. R. A. 516, “D,” is also cited, but states only the general rule that contributory negligence will not bar an action for wilful and wanton negligence. Hart v. Freeholders, etc., 57 N. J. L. 90, also cited, states the rule of liability where a municipality vacates or obstructs a public . street to the special damage of an individual owner. Keho v. Borough of Rutherford, 74 N. J. L. 659, considers the liability of a municipality for negligence in constructing artificial drains to the injury of land holders. Renstrom v. City of Nampa, 48 Idaho 130, 279 Pac. 614, considers the liability of a city for negligence causing an overflow of water during freezing weather, whereby ice was formed in the street. Plaintiff also cites 45 C. J. 679 and McQuillin on Mun. Corp., sec. 2792, but neither authority sustains the contention that a municipality, exempt by reason of exercising a governmental function, may be subjected to liability by reason of proof that the negligence was wilful and wanton or even malicious.

Finally the plaintiff insists that the tendency is quite uniform to depart from the old theory of nonliability of cities for negligence in the performance of governmental functions, to which he cites 34 Harvard Law Review, p. 67; Workman v. New York, 179 U. S. 552; Highway Trailer Co. v. Janesville Electric Co., 178 Wis. 340; Wasilevitsky v. City of Chicago, 280 Ill. App. 531; Jones Ill. Stats. Ann., vol. 15, ch. 85, sec. 85.072. To this contention we shall later give consideration.

In the first place defendant denies that it was in fact furnishing water to plaintiff at the time in question. The water, it is said, was furnished to and used by the Evanston fire department, not plaintiff. Members of-the Evanston fire department, however, in this case acted in behalf of plaintiff and if defendant was otherwise liable, we think it could not escape upon that theory. Neither can we agree, as defendant contends, that there was no duty upon defendant after voluntarily assuming the duty of furnishing water to continue to furnish it while it was needed to put out the fire. However, assuming all this, there remains for consideration the controlling question of whether defendant, a municipality, can be held liable under the . facts here disclosed. In the exhaustive briefs submitted, the parties have cited innumerable authorities from this and other jurisdictions which undertake to define under what circumstances a municipal corporation will and will not be liable for the negligence of its servants and employees. The authorities are in hopeless conflict, although the courts of Illinois have been disposed to adopt a more liberal rule in the direction of liability than some other jurisdictions, and it may not be denied that within certain exceptions the tendency of the decisions has been in the direction of holding the municipality liable. Illustrative is the case of Hanrahan v. City of Chicago, 145 Ill. App. 38, as compared with the later case of Hanrahan v. City of Chicago, 209 Ill. App. 630, which was affirmed by the Supreme Court in 289 Ill. 400. In those cases the Hanrahans, father and son, were injured by the falling of an awning which was permitted to project over the street on which they were walking. They brought separate actions, filing declarations which, except as to the names of the plaintiffs, were identical. The case of the father was tried first. He obtained a judgment which was reversed by the Appellate Court on the theory that the city acted in a governmental capacity. In the case of the son, tried later, the plaintiff also obtained a judgment which was affirmed in this court, the court holding that the city acted in a ministerial capacity. The opinion relied on Johnson v. City of Chicago, 258 Ill. 494, which in the meantime had been decided by the Supreme Court holding that in conducting a library the city was acting’ in a ministerial capacity and therefore liable to one injured by a servant of the library negligently driving a wagon. Upon the same reasoning in the later case of Gebhardt v. Village of LaGrange Park, 268 Ill. App. 556, this court affirmed a judgment for personal injuries obtained by a minor against a municipality, because of the alleged negligence of the servant of the municipality, in the operation of a bus carrying children to a swimming pool. The authorities cited were Roumbos v. City of Chicago, 332 Ill. 70; Bedtke v. City of Chicago, 240 Ill. App. 493; Johnston v. City of Chicago, 258 Ill. 494. We quoted with approval from the Bedtke case :

“In our judgment, bearing in mind that the present ill-defined doctrine seems to have arisen from a misconception of early law, the ordinary principles of the law pertaining to torts ought to apply to a municipal corporation; in other words, such a corporation, like any other principal, should be liable for the torts of its agents, and the distinction between governmental and ministerial functions, used in determining the liability of a municipal corporation for negligence in affirmative conduct, should be abandoned. 24 Tale Law Journal, 229; 4 Dillon, Mun. Corp., p. 3002. ’ ’

The Supreme Court, however, did not approve, and in Gebhardt v. Village of LaGrange Park, 354 Ill. 234, reversed the judgment of this court. The Supreme Court, after pointing out the conflict of authority in different States, said:

“The principle upon which freedom from liability for damages occasioned by the servants of a municipality is based, rests, in turn, on the fact that the duty of the municipality is owed to the public, and though the neglect causing the injury may prove of damage to the individual affected, the benefit of the discharge of such function to the public generally is deemed an outweighing consideration and so justifies immunity to the municipality. (Hill v. Boston, 122 Mass., 334, 23 Am. Rep. 332.)'”

In the later case of Wasilevitsky v. City of Chicago, 280 Ill. App. 531, this court held the city was liable to the plaintiff, injured by the negligent operation of a garbage truck owned and used by the city. We again reviewed the cases and said that the later view of liability was in accordance with sound reasoning and called attention to the statute making a municipality liable in some cases to persons injured by the negligence of firemen. Cahill’s 1933 St. ch. 24, U 987 (1), p. 593. In the later case of Schmidt v. City of Chicago, 284 Ill. App. 570, the second division of this court reviewed the authorities from this and other States.

It is apparent from the Gebhardt case that the Supreme Court of this State adheres to the distinction between acts done in a governmental as distinguished from a proprietary capacity, or a public as distinguished from a private or corporate capacity. The reason for adherence to the distinction, notwithstanding the difficulty of stating a definite rule which may be generally applied, is the public danger that in this class of cases liability of the municipality would impose upon the taxpayers damages which might prove so onerous as to destroy the municipality itself. The real basis of the rule which exempts the municipality from liability in cases of this character is, we think, public policy which forbids that the municipality, an arm of the sovereign government, should be subjected to liability in damages of this sort.

In Roumbos v. City of Chicago, 332 Ill. 70, the Supreme Court, quoting with approval from Wilcox v. City of Chicago, 107 Ill. 334, said:

“To allow recoveries for the negligence of the fire department would almost certainly subject property holders to as great, if not greater, burdens- than are suffered from the damages from fire. Sound public policy would forbid it, if it was not prohibited by authority. ’ ’

In Springfield Fire & Marine Ins. Co. v. Keeseville, 148 N. Y. 46, 51 American State Reports, 667, the court said:

“The proposition that such a liability rests upon a municipal corporation, as is asserted here, is somewhat startling, and I think the learned General Term justices have misapprehended the nature of the responsibility, which devolved upon the defendant in connection with its maintenance of a water works system, as well as the character of the power which it was authorized to exercise in relation thereto. I might remark, in the same spirit of criticism which was assumed by the learned justice at General Term, that while the efficiency of the public service would be promoted by holding municipal corporations to the exercise of reasonable care and diligence in the performance of municipal duties, and to a liability for injury resulting from a failure in such exercise, the application of that doctrine to such a case as this might, and probably would, be highly disastrous to municipal governments. A little reflection will show that a multitude of actions would be encouraged, by fire insurance companies, as by individuals, and that cases have arisen, and may still arise, where an extensive conflagration might bankrupt the municipality, if it could be rendered liable for the damages or losses sustained.”

The facts of this case bring it within the reason of the rule which exempts a municipality from liability; for damages arising in such cases. If this suit were; by a resident and taxpayer within the village,for a similar wrong, there could be no recovery. We think plaintiff, residing without the village, is for like reasons precluded. There is no case in the books which has been called to our attention which is precisely like the instant case, or which may not easily be distinguished from it. We hold, however, that the liability which plaintiff seeks to enforce against this municipality is of a nature forbidden by public policy; that the obligation which it is claimed was undertaken by the municipality to furnish water to fight a fire was of such a nature that the law forbids liability for negligence in connection therewith, and that any act by which such liability might be imposed upon the municipality was ultra vires. We hold (assuming that all evidence offered should have been admitted) the trial judge was warranted in instructing the jury to return a verdict for the defendant. The judgment entered upon that verdict is therefore affirmed.

Affirmed,.

O’Connor, J., concurs.

MoSurely, J., concurs in holding that the judgment should be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Rose I. Davis, Appellee, v. City of Chicago, Appellant.
    Gen. No. 39,387.

      Opinion filed May 10, 1937.
    Barnet Hodes, Corporation Counsel, for appellant; Joseph F. Grossman, First Assistant Corporation Counsel, Otho S. Fasig, Norman N. Eiger, Alexander J. Besa and John W. McCarthy, Assistant Corporation Counsel, of counsel.
    Harry P. Beam, of Chicago, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

In an action on the case "by plaintiff, the owner of real estate, for damages alleged to have been caused by the vacation of parts of two city streets, and upon trial by jury there was a verdict for plaintiff in the sum of $43,588, upon which judgment was entered. The city contends for reversal that an instruction for defendant requested at the close of all the evidence should have been given, and that the court erred in allowing evidence to be given over the objection of defendant.

A plat of the property appears in the record showing its situation with reference to the streets before and. after the vacation ordinances. A copy of this plat is hereinafter shown. It appears therefrom that the premises said to have been damaged consisted of two lots adjacent to each other and immediately north of the Chicago River, which formed the southern boundary thereof. The northern boundary of the lots was Carroll avenue, a public street extending, east and west, on which these lots had a frontage of 160 feet. The east boundary was Orleans street, a public highway extending north and south, on which the frontage of these lots was 230.5 feet. The western boundary extended from Carroll avenue south to the river, a distance of 325 feet, forming the boundary line between plaintiff’s premises and those of the Northwestern Railroad Company. The irregular frontage on the Chicago River extended 190 feet.

Carroll avenue ran from Orleans street west to the north branch of the Chicago river, where there is an outlet in Ferry street, which runs north from Carroll avenue directly to Kinzie street, another public highway extending east and west parallel with Carroll avenue. Ferry street intersected Kinzie street at the Kinzie street bridge, where the dock facilities and water transportation of the river were available. Carroll avenue was paved about 40 feet wide. Ferry street has a pavement 30 feet in width. Orleans street was paved and was about 80 feet wide. The total area of the property is 46,370 square feet. The evidence shows that the best use, prior to the vacation of the streets, to Which this property might be devoted was for storage, warehouse and manufacturing purposes. Before the vacation of these parts of the streets of which complaint is made, trucks and teams reached this property principally through Orleans street, north into Kinzie, through a by-pass east of the Franklin-Orleans street bridge ramp; thence, north in Austin avenue to Division street jogging left to Sedgwick street, continuing to the north. Also the traffic passing by the premises would flow east and west through Kinzie street which was convenient on the east to all the bridge heads, the Clark street, Wells street, LaSalle, Dearborn and State street bridges.

At the intersection of Kinzie and Orleans streets, one block-north of plaintiff’s premises, were through streets going in all directions to all parts of the city, including Kinzie street itself. To the west side of Chicago traffic went over the Kinzie bridge; to the south side over the Franklin-Orleans bridge. By the vacation ordinances Carroll avenue east of the east line of Orleans street and Orleans street for one block north of the north line of Carroll avenue were closed. The effect of the vacation of these streets was that the only way to reach plaintiff’s property was to drive south on Ferry street to Carroll avenue, then east on Carroll avenue to the premises. The only way out from plaintiff’s premises was by returning over the same route; that is, going west on Carroll avenue, then north on Ferry street to Kinzie street. Plaintiff’s property being located, so to speak, at the lower point of the peninsula formed by the course of the river, Ferry, Carroll and Orleans, after the passage of the vacation ordinances, formed a cul-de-sac in which the premises of plaintiff were placed. Thus it became necessary for any one desiring to go to plaintiff’s property to locate Ferry street; get off the heavily traveled thoroughfare of Kinzie street (not at an intersection) by jutting* off into Ferry street which enters at the east end of the Kinzie bridge, travel south on its narrow 30-foot pavement to Carroll avenue, and then turn and go east in Carroll avenue until plaintiff’s property is reached. The same person wishing to leave plaintiff’s property will then have to turn his automobile or truck around in the middle of the road and proceed back over the same route traversed to get into the property. One of plaintiff’s witnesses describing plaintiff’s property after the vacation of the streets, said it was “almost at the bottom of a pocket.”

Defendant does not contend plaintiff’s property was not in fact damaged as a result of closing these portions of these streets. The evidence shows that plaintiff purchased the property in 1927, paying therefor $12.16 a square foot or a total sum of $560,000. Two of the three expert witnesses for plaintiff estimated plaintiff’s damages at $162,295. One of them placed the damage at $185,480. Three experts for the city estimated plaintiff’s damages at $23,185, $27,000 and $27,822, respectively. The jury assessed the damages at $43,558.

Defendant contends that whatever damage plaintiff may have sustained was not special damage such as would justify a recovery, but merely damage of the same kind as that suffered by the public, and it is contended therefore that plaintiff as a matter of law was not entitled to recover, and that an instruction for defendant as requested should have been given. It has been held in many cases that a property owner who suffers damages by reason of the vacation of a public street is not entitled to recover at all unless his damages are different in hind and not merely in degree from that suffered by the general public.

The right to recover damages in an action of this character is based on Article 2, section 13 of the Constitution of Illinois, which in substance provides that private property shall not be taken or damaged for public use without just compensation. The words, “or damaged” inserted in the Constitution of 1870, were not found in prior constitutions of this State. In conformity with that provision the statute provides:

“When property is damaged by the vacation or closing of any street or alley, the same shall be ascertained and paid as provided by law.” (Ill. State Bar Stats. 1935, ch. 145, 1, p. 3112; Jones Ill. Stats. Ann. 21.685.)

Prior to the adoption of the present constitution it had been held by the courts that in order to recover in such cases it was necessary to show some direct physical disturbance of a right, either public or private, which plaintiff enjoyed in connection with his property in excess of that sustained by the public generally. The first construction of this provision of the new constitution was in Rigney v. City of Chicago, 102 Ill. 64. The opinion was by a divided court. In that case the property was located on the south side of Kinzie street about 220 feet east of its intersection with Halsted street. The city raised the level of Halsted street so that Kinzie ran under the elevated street and vehicles could not turn north or south from Kinzie into Halsted after the improvement had been completed, as they had been accustomed theretofore to do. A judgment for defendant was reversed and a new trial ordered. The court said:

“The gravamen of the plaintiff’s complaint is, that the defendant, in cutting off his .communication with Halsted street by way of Kinzie street has deprived him of a public right which he enjoyed in connection with his premises, and thereby inflicted upon him an injury in excess of that shared by him with the public generally, and it is for this excess he seeks to recover, and nothing more. ... In all cases, to warrant a recovery it must appear there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives it an additional value, and that by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally.”

In that cáse the property held to be damaged was located 220 feet distant from the vacated street. In the case at bar plaintiff’s property immediately adjoins the vacated streets, being separated therefrom only by the width of the streets themselves. Plaintiff points out that in the Rigney case the traffic on Kinzie street continued east and west under the elevation of Halsted street without being* blocked in any respect and there remained full accessibility i,n other directions to the general street system of the city. The substance of the damage inflicted was that „ plaintiff lost the right to turn north or south into Halsted street at a point 220 feet distant from his premises.

In the later case of City of Chicago v. Burcky, 158 111. 103, the defendant requested an instruction to the effect that as the property claimed to be damaged did not abut upon that portion of the street vacated but was situated in another block east of the block in which the portion of 61st street was situated, plaintiff had failed to prove damage. Plaintiff obtained judgment, and refusal of this instruction was urged as error upon appeal. That judgment was, however, affirmed. The court after reviewing authorities said:

11 There is less difficulty in determining what the law is, than in making a proper application of the law to the different cases that may arise. In this case we think it plain that plaintiff was entitled to recover. Her property fronted on Sixty-first street. It extended west to and cornered with that part of the street which was vacated. By the vacation of the street and the erection of the viaduct her property, extending from the railroad tracks east to State street, was shut in, and all access from the south and the west was shut off. What was originally a thoroughfare along the entire line of plaintiff’s property fronting* on Sixty-first street, was by the action of the town turned into a blind court. No other property was damaged or affected in the same way, except the small tract lying between Wentworth avenue and the railroad tracks. The property of the general public was not affected like plaintiff’s, nor was the damage sustained by the public of the same kind. Before the action taken by the town, plaintiff’s property fronting on Sixty-first street was so situated that it was available as lots for business purposes, but after the action of the town it was rendered useless for that purpose.”

In City of Chicago v. Baker, 86 Fed. 753, the property was, located at the southwest corner of Clark and 21st streets. The city vacated a portion of 21st street not extending, however, to the east line of the property claimed to be damaged, so that it did not corner with that property but was separated from it by a distance of about a rod. To the contention that the plaintiff could not recover because the vacated portion of the street was not adjacent to the damaged property, the court said:

“It is not essential to the right of action, under the decisions in Illinois, that the property alleged to have been injured should abut upon the vacated portion of the street. See Rigney v. City of Chicago, 102 Ill. 64; City of Chicago v. Union Building Ass’n, id. 379; Littler v. City of Lincoln, 106 Ill. 353; City of East St. Louis v. O’Flynn, 119 Ill, 200, 10 N. E. 395; Chicago Anderson Pressed Brick Co. v. City of Chicago, 138 Ill. 628, 28 N. E. 756; Parker v. Catholic Bishop, 146 Ill. 158, 34 N. E. 473; City of Chicago v. Burcky, 158 Ill. 103, 42 N. E. 178. While no part of Twenty-first street within a rod of the property of defendant in error was closed, yet egress and ingress which had existed to and from the west were cut off, leaving no immediate communication with the next cross street in that direction; and in that respect, at least, he suffered a special inconvenience in the use and enjoyment of his property, for which he should receive compensation.”

In Park City Yacht Club v. Bridgeport, 85 Conn. 366, 82 Atl. 1035, 39 L. R. A. (N. S.) 478, the property of the plaintiff was almost surrounded by water on several sides. The yacht club owned a clubhouse on the south side of a street known as Stratford avenue, a portion of which not adjacent to the property of plaintiff was vacated. The court said that while the vacation of a part of a street did not ordinarily permit a recovery to an owner fronting on another part of the street, the rule was not universal, and that the facts there were so unusual as to make the exception clearly applicable, in that by the improvement which had been made the premises of plaintiff were put in a cul-de-sac. The court quoted with approval Smith v. Boston, 7 Cush. (Mass.) 254; Illinois Cent. R. Co. v. Moriarity, 135 Tenn. 446, 186 S. W. 1053, and O’Brien v. Central Iron & Steel Co., 158 Ind. 218, 63 N. E. 302, 57 L. R. A. 508, 92 Am. St. Rep. 305, are to the same effect. The legal basis for the exception to the rule is well stated in the Indiana case:

“Under our law, when land is platted into lots, streets and alleys, and recorded, the act is accepted as a dedication by the owner to the public of a continuing right to travel such streets and alleys, and a conveyance of a lot abutting on such a street carries with it not only the fee in the soil to the center of the street, but also the right to use such street, as dedicated, in perpetuity, for the purposes of egress and ingress to the premises. And, so far as such street is necessary to a free and convenient way for travel to and from the lot, the right of the lot owner to use it for that purpose is appurtenant to his premises, is essential to its enjoyment, and is as inviolable as his right to the use of the property itself. In this respect the abutter’s right is distinct, and altogether different, from the rights of the general public in the street. The abutter has a right, in common with the community, to use the street from end to end for the purpose of passage; but, in addition to this common right, he has an individual property right, appendant to his premises, in that part of the street which is necessary to free and convenient egress and ingress to his property. • That this latter right is private and personal and unshared by the community, and cannot be taken away, or materially interfered with, without the wrong-doer being answerable in damages, has been many times declared by this court.”

Defendant argues, however, that decisions like that of Rigney v. City of Chicago, are not applicable to the facts of the case at bar, and that the case of Quttery v. Glenn, 201 Ill. 275, and C. Hacker Co. v. City of Joliet, 196 Ill. App. 415, show this statement to be true. Because of the confidence with which this assertion is made, we have given careful consideration to these cases. In the Guttery case the controlling question was whether when the village of Middleton in Logan county was platted, creating a public square in the center of the town, it was the intention to bisect it by running through it a public street named Union avenue. The court carefully considered the evidence and held that it was not the intention to create any such public highway through the square. This was decisive of the case. The opinion of the court, however, went on to say that even if the street had been in fact created to run through the center of the square, the plaintiff, who sought an injunction against the village board to prevent an obstruction of the proposed highway, could not prevail because he did not show any “particular injury to his property, distinct and separate from the injury which would be suffered by the public at large, in case the whole public square here in question were enclosed. ’ ’ The opinion further said that the obstruction placed by the board “would be an obstruction occurring in a different and separate block from either of the blocks, where the property of appellee is located.” Plaintiff could not, said the opinion, “be injuriously affected by the closing of a street not adjacent to his property, nor directly affording access thereto and egress therefrom.” Plaintiff’s damages, it was said, would be the same as would be sustained by all other persons in the city who might have to go that way. As authority, City of East St. Louis v. O’Flynn, 119 Ill. 200, was cited. In that case the plaintiff owned a house and lot fronting on an east and west street known as Third street. The city, by agreement with the railroad, vacated a part of this street but not in the block in which plaintiff’s house was situated. There was apparently no proof of special circumstances from which special damage could be inferred. The court followed the rule laid down in City of Chicago v. Union Building Ass’n, 102 Ill. 379, and held that the vacation of the street merely obstructed a public and common right, and that for this there was no right of action. In City of Chicago v. Union Building Ass’n, 102 Ill. 379, the association, owner of the Chamber of Commerce building in Chicago, situated on the southwest corner of LaSalle and West Washington streets, filed a bill to enjoin the city council from vacating a plat of ground on LaSalle street, bounded on the south by VanBuren street, on the east by Pacific avenue, on the north by Jackson street, and on the west by Sherman street, in order to create a piece of ground to which the Board of Trade might be removed. This piece of ground was more than three blocks south of complainant’s property, and there were several intersecting streets giving free access to all parts of the city. The court held that complainant was not entitled to an injunction ; that complainant’s property was three and one-half blocks distant from the part of LaSalle street to be vacated; that the streets adjacent would all remain in the same condition as to width, character of improvements, etc., as before, and that it had not been pointed out how complainant would be specially or peculiarly injured. The removal of the Board of Trade from its then location might diminish the number of complainant’s tenants, but complainant had no legal right to control its movement or location. The court said:

“In the American Law Register for October, 1880, one of the- learned editors of that periodical, Mr. Edmund H. Bennett, in a note to Fritz v. Hobson, after a very elaborate review of the principal cases bearing upon the question now before us, comes, as we think very correctly, to the conclusion: ‘First, for any act obstructing a public and common right, no private action will lie for damages of the same kind as those sustained by the general public, although in a much greater degree than any other person; second, an action will lie for peculiar damages of a different kind, though even in the smallest degree; third, the damages, if really peculiar, need not always be direct and immediate, like the loss of a horse, but may be as remote and consequential as in other cases of tort; fourth, the fact that many others sustain an injury of exactly like kind, is not a bar to individual actions of many cases of a public nuisance.”

The opinion went on to say that the ease fell within the first of these classes; that the damages sustained were of the same kind as those sustained by the general public, differing, if at all, only in degree.

Defendant contends that a true statement of the rule of law applicable is:

“Where the vacated portion of a street is separated from the plaintiff’s property by another public street over which, at a short distance, he may reach a public street extending in the same general direction as the vacated street, he is subjected only to the same inconvenience as the public, he suffers no damage different in kind (although it may be greater in degree) from that suffered by the public, and he is not entitled to recover.” In support of this proposition defendant relies upon the general rule stated in Elliott on Roads and Streets (4th ed.), vol. 2, sees. 1180 and 1181, where the author, after pointing out the distinction between the rights which vest in a landowner as one of the public and the right vested in such landowner as an adjoining proprietor, says:
“Owners of lands abutting upon neighboring streets, or upon other parts of the same street, at least when beyond the next cross street, are not, however, entitled to damages, notwithstanding the value of their lands may be lessened by its vacation or discontinuance.”

A number of New York cases, Coster v. Mayor of Albany, 43 N. Y. 399; People ex rel. Bushnell v. Newell, 131 App. Div. (N. Y.) 555; Kings County Fire Ins. Co. v. Stephens, 101 N. Y. 411; In re Cox, 250 N. Y. Supp. 528, are cited together with C. Hacker Co. v. City of Joliet, 196 Ill. App. 415; and Guttery v. Glenn, 201 Ill. 275. As a matter of fact, the New York cases are all based upon the case of Smith v. Boston, 7 Cush. (Mass.) 254, where Chief Justice Shaw, delivering the opinion of the court, sustained the finding of the trial judge: “That the petitioner was not by law entitled to prove and recover any damages, because neither of his estates abutted on that part of Market street which was discontinued. ’ ’ After thus stating the general rule the opinion said:

“We do not mean to be understood as laying down a universal rule, that in no case can a man have damages for the discontinuance of a highway, unless his land bounds upon it; although as applicable to city streets, intersecting each other at short distances, it is an equitable rule. A man may have a farm, store, mill or wharf, not bounding on a street but communicating with it by a private way, so situated that he has no access to his property but by the public way. If this is discontinued, he must lose the benefit of his estate, or open a way at his own expense, which might be a direct and tangible damage, consequent upon the discontinuanee of the public way, and we are not prepared to say that he would not have a claim for damages under the statute.”

From the analysis heretofore presented of the Illinois cases, we think it is apparent in the first place that the courts of this State have not adhered with the same strictness (as have the courts of New York and some other States) to the general rule as there stated, but secondly, that the uncontradicted' facts which here appear bring this case within the exception to the general rule. The plaintiff’s property was situated in a unique position on the bank of the river, which made the usual access in different directions to the different parts of the' city difficult. The effect of the closing of Orleans street was to diminish in a most serious way the accessibility of this property to those from other parts of the city who might wish to reach it, as well as making other parts of the city far less accessible to those using the property. The ordinances vacating* these portions of these streets were passed in conformity with a contract between the city and the Northwestern Railway Company. The city in making its deal with the railway company for the closing of streets was bound to take this situation into consideration. The damage resulting to plaintiff’s property was special in its nature and altogether unlike that sustained by it in common with the public generally. In so far as the damage which plaintiff sustained was not shared by the general public, he was entitled to compensation. The obstruction of streets leading to property located as is this results in damage of a different kind than the obstruction of streets'leading to property surrounded by land on all sides and where there is easy accessibility by other streets. As plaintiff points out, one of the principal values of land located along a navigable water is its combined accessibility by both water and land, and if that value is destroyed the owner sustains damage which, is different in kind from that which the owner sustains in common with the community of which he is a part. That the amount of damage sustained is difficult to ascertain with any degree of exactness is no reason for denying recovery altogether. Here the task was committed to a jury, presumably intelligent, and the verdict of the jury which viewed the premises has been approved by the trial judge who heard the evidence. It is not contended that the damages allowed are in fact excessive.

Complaint is made that evidence was admitted tending to show that subsequent to the vacation of this section of Orleans street by the city, a railroad company which was not a party to the suit encroached upon Carroll avenue in such a way as to reduce the usable width of part of that avenue as means of access to the plaintiff’s property. If it might be granted that it was error to admit this evidence, it would seem to have a bearing’ only on the question of damages rather than upon the right of recovery. Defendant does not argue that the damages allowed are excessive.

We hold there is no reversible error in the record, and the judgment of the trial court is therefore affirmed.

Affirmed.

O’Cohhor and McSurelt, JJ., concur.


author: Mr. Justice O’Connor

text:
    Gust O. Nelson, Appellant, v. Christian Reformed Church of Evergreen Park, Appellee.
    Gen. No. 39,360.
    Opinion filed May 10, 1937.
    Rehearing denied May 24, 1937.

      Tags Joranson, of Chicago, for appellant.
    Litsinger, Heart, Reid & Bte, of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff filed his complaint in equity to foreclose' a claimed mechanic’s lien for $3,000 on the Church’s property. The evidence was taken by a master who made up his report recommending a decree in plaintiff’s favor. Exceptions were sustained to the report by the chancellor, the bill dismissed and plaintiff appeals.

The record discloses that defendant desired to build a church and on March 16,1931, entered into a contract for the construction of it with Axel R. Berg and Albin P. Berntson, copartners doing business as Berg & Berntson. The contract price was $23,767.- The mason work was sublet by the contractors to plaintiff, Gust O. Nelson, for which he was to be paid $12,307. Other subcontracts were let, the work progressed and payments were made on account by the Church. June 5, 1931, the architect representing the Church made an estimate of the work done by the general contractors and two subcontractors, the total amount being $6,500, $3,000 of which was due to plaintiff, $1,500 to subcontractor Waddington, and $2,000 to the general contractors, Berg & Berntson, and on that day the Church made its check payable to the order of the general contractors for $6,500 drawn on the State Bank of Beverly Hills, located at 95th street and Ashland avenue, and they and the two subcontractors were notified to appear at the architect’s office on the following day, Saturday, June 6, 1931, to receive their money. All the parties appeared as requested. It was explained that the $6,500 was to be divided, as above stated, between the general contractors and the two subcontractors. Thereupon mechanic’s lien waivers were executed by the parties respectively and delivered to the architect and the check was then delivered to the general contractors who, together with the plaintiff, Nelson, and the subcontractor, Waddington, went to the Beverly bank to get the money; they reached the bank, the check was presented, and after some discussion all parties agreed to take cashier’s checks for their respective amounts in lieu of money and such checks were then issued — one to plaintiff for $3,000, one to Waddington for $1,500 and one to the general contractors for $2,000. Upon receiving the checks each of the three parties signed a receipt,, which was delivered to the general contractors, showing that they had been paid. Thereupon plaintiff went to his own bank, Chicago City Bank and Trust Co., on 63rd street, indorsed the cashier’s check by writing his name on the back of it, and deposited it in that bank; the check went through the regular banking channels, but when it was presented Monday morning to the Beverly bank payment was refused, apparently on the ground that the indorsement was improper because plaintiff’s signature had not been guaranteed by the Chicago City Bank & Trust Co. The check was returned to that bank June 10th, when the following indorsement was put on the check: ‘1 Credited to the Account of the Within Named Payee, Indorsement Gfuaranteed, Chicago City Bank & Trust Co.” Apparently it was again presented for payment on June 11th to the State bank of Beverly Hills but at that time that bank was closed and the check was not paid. Afterward plaintiff filed his verified petition in the circuit court of Cook county in the proceeding brought by the auditor for liquidation of the Beverly bank, seeking to have hi§ claim for $3,000 allowed as a preferred claim. The court held the claim was not preferred and it was allowed as a general claim; afterward plaintiff was paid $300 on the claim by the receiver, for which amount he gave credit.

June 29, 1931, after the Beverly bank closed, the Church borrowed $25,000 from the Peoples Trust & Savings Bank of Chicago, securing payment by a mortgage on the church property, and this money was paid out from time to time by the Peoples Bank. September 21, 1931, plaintiff filed his claim for a mechanic’s lien with the clerk of the circuit court. Prior to that time, on July 31, 1931, the Church delivered to plaintiff an order on the Peoples Trust & Savings Bank for $307, which was due him for work done after June 6, 1931, but this check was not cashed because it was tendered in full of all of plaintiff’s claims.

There is other evidence in the record but which we think it is unnecessary to refer to in. the decision of this case.

Plaintiff contends that under section 27 of the Mechanic’s Lien Law the Church was required to make payment to him direct of the moneys it owed him instead of to the general contractors. This is wholly immaterial under the facts in this case because all of the evidence shows it was entirely agreeable to plaintiff that the check which was made payable to the general contractors be delivered to them, and that plaintiff, with the general contractors and the subcontractor, Waddington, go to the bank on which it was drawn to get their money.

A number of other contentions are made by plaintiff as to whether the cashier’s check for $3,000 which he received at the Beverly bank was payment of his claim, but we think it unnecessary to go into a discussion of the arguments made by plaintiff and defendant on these points because it is clear that if the payee of a check accepts from the drawee bank something in place of cash when there is sufficient money in the bank to pay the check, the transaction is regarded as payment, of the check and the drawer discharged. Section 187, par. 209, ch. 98, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 89.209; McCarty Bros. v. Ft. Dearborn Bank, 208 Ill. App. 282; 5 Ruling Case Law 498; 21 Ruling Case Law, pp. 67-68; Berg v. Federal Reserve Bank of Indianapolis, 55 N. D. 406, 213 N. W. 963, 52 A. L. R. 988; Merchants’ Nat. Bank of N. Y. v. Samuel, 20 Fed. 664; Loth v. Mothner, 53 Ark. 116; People ex rel. Port Chester Savings Bank v. Cromwell, 102 N. Y. 477; State Bank v. Mid City Bank, 295 Ill. 599.

Section 187 (N. I. L.) provides: “Where the holder of a check procures it to be accepted or certified, the drawer and all indorsers are discharged from liability thereon.”

In McCarty Bros, case (208 Ill. App. 282) it was held that where the holder of a check procures it to be accepted or certified, the drawer is discharged from liability thereon.

In Metropolitan Nat. Bank of Chicago v. Jones, 137 Ill. 634, it was held that if the holder of a bank check, instead of demanding* its payment, obtains its certification by the bank, he will thereby discharge the drawer of the check from all liability, and its presentment on the next business day after its issue and nonpayment will not in any manner revive the drawer’s liability. The court there, after citing Daniel on Negotiable Instruments, said (pp. 639-640): “If then the holder, on making presentment of the check, instead of demanding and receiving payment, has the check certified and retains it in his possession, he enters into a new and express contract with the bank not within the scope of the legal relations of the parties nor within the presumed intention, of the drawer. . . . The transaction as between the holder and the bank, is substantially the same, in legal effect, as though the holder' had received payment and had deposited the money with the bank and received a certificate of deposit therefor. . . .

“. . . As between the bank and drawer, certification has the same effect as payment, the funds representing the amount of the check being just as effectually withdrawn from the control of the drawer, and the indebtedness from the bank to the depositor created by the deposit being just as effectually satisfied to that amount in one case as in the other.”

In 5 Ruling Case Law it is said (pp. 498-499): “It is the sole function of a check to effect the transfer of money. ' None of the parties to the instrument can be deemed to contemplate payment in anything else than money, and whenever a check is presented against funds on deposit to meet it, which the drawee is then ready and willing to deliver, the contract of the drawer has been fulfilled. . . . The drawer having funds to his credit, the drawee has a right to assume that the payee will, upon presentation, exact in payment precisely what the check was given for, and that he will not accept, in lieu thereof, something for which it had not been drawn. It is certainly not within his contemplation that the payee should, upon presentation, instead of requiring the cash to be paid, accept at the drawer’s risk a check of the drawee upon some other bank or banker.”

In 21 Ruling Case Law, in discussing the question of “Delay in Presenting Substituted Check,” it is said (p. 69): “The true rule seems to be that when a creditor accepts from a bank its check in payment of a check given by his debtor, the debtor is discharged both on his check and on the indebtedness for which it was given. In such a case the utmost diligence in collecting the substituted check can only mean that diligence which results in payment, and therefore if the substituted check is not paid the creditor has not exercised the diligence required.”

In 52 A. L. R. 988, it was held that the legal obligation of a bank is to pay its customers’ checks in money, but this obligation may be waived by the holder of the check; and where, upon presentment of a check, the holder accepts a draft in payment thereof, the check is paid, and the drawer discharged from all liability thereon. Following the opinion is an exhaustive annotation which is entitled, “Discharge of drawer or indorser of check by holder’s acceptance therefor of something other than money.” And it is there said, “It is a general rule, well supported by authority, that if the payee of a check, or his agent, accepts from the drawee bank something else in place of cash, as a draft on another bank, or a deposit slip or credit, when the drawee holds funds of the drawer sufficient to pay the check, and would pay it in cash if demand therefor were made, the transaction will be regarded as a payment of the check, and the drawer discharged. ’ ’ And a number of authorities are cited in support of this rule. It is there further said that if instead of demanding and receiving cash, the payee or holder of a check has it certified by the drawee bank, the drawer of the check is discharged.

In State Bank v. Mid City Bank (295 Ill. 599), it was held that under the Negotiable Instruments Act, where the holder of the check procures it to be certified, the drawer and all indorsers are discharged from liability thereon and the drawee alone becomes liable for payment.

In the instant case the evidence all showjs that when plaintiff, the general contractors, and the subcontractor, Waddington, appeared at the Beverly Bank on June 6th with the check of the Church for $6,500, it was agreed by all, including plaintiff, that in lieu of the parties receiving cash from the bank, they agreed to take cashier’s checks; that when these cashier’s checks were issued and delivered by the Beverly bank, the Church, the drawer of the check was discharged under the authorities above cited.

From what we have said it follows that the decree of the superior court of Cook county is correct, and it is affirmed.

Decree affirmed.

Matchett, P. J., and McSttrely, J., concur.


text:
    William E. Maher, Appellee, v. New York, Chicago and St. Louis Railroad Company, Appellant.
    Gen. No. 39,375.

      Opinion filed May 10, 1937.
    Rehearing denied May 24, 1937.
    Winston, Strawn & Shaw, of Chicago, for appellant ; Silas H. Strawn, Harold A. Smith and Douglas C. Moir, all of Chicago, of counsel.
    Joseph D. Eyan and Louis P. Miller, both of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

March 18, 1936, the New York, Chicago & St. Louis Eailroad Company, a corporation, against whom plaintiff had a judgment for $40,000 for personal injuries, filed its motion in the nature of a petition for a writ of error cor am nobis under the provisions of' section 72 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, If 200; Jones Ill. Stats. Ann. 104.072, praying that judgment be vacated and that it be granted a new trial. Plaintiff filed a motion in the nature of a special demurrer to strike defendant’s motion; The motion was Allowed and defendant appeals.

In defendant’s petition it was alleged that plaintiff brought his suit to recover damages for personal injuries in April, 1932; that a trial of the case in April, 1934, resulted in a verdict and judgment in plaintiff’s favor for $24,600; that on appeal to this court the judgment was reversed and the cause remanded for a new trial (280 Ill. App. 222); that September 23,1935, a jury was sworn and the second trial begun; a verdict was returned in plaintiff’s favor for $50,000, from which plaintiff remitted $10,000, and on October 30, 1935, judgment was entered in favor of plaintiff for $40,000. While defendant’s appeal to this court from that judgment was pending, defendant on February 13, 1936, discovered that the foreman of the jury had made misstatements and had not truthfully and fully answered questions put to him on Ms voir dire examination, in that he was asked by counsel for defendant whether he or any member of his family had ever been involved in a personal injury case or whether he had ever been sued in a personal injury case, which questions were answered in the negative; that thereupon the prospective juror was examined by counsel for plaintiff who asked, “Have you ever had any experience that might prejudice you against . . . the plaintiff?” and “Nobody ever sued you for damages?” and the answers were, “No, sir.”

Defendant further alleges in its petition that such answers were false in that (a) the juror on March 16, 1923, was driving a truck on a certain street in Chicago when Hugo Derrick was run over by the truck and killed; (b) April 8, 1932, a son of the juror, who then resided in the same building with his father, was sued for $25,000 for personal injuries alleged to have occurred October 21, 1931, which suit was dismissed June 7, 1933; and (c) on July 1, 1913? the juror “while employed as a brick tosser on the premises of the Baltimore & Ohio Railroad company claimed that he fell over a bolt sticking up from the bottom of one of the cars and sustained two broken ribs.” And it is further alleged that neither the petitioner nor his attorney learned of the falsity of the answers until February 13,1936.

It further appears that on June 29, 1936 (No. 38,852, 286 Ill. App. 609 [Abst.]), this court affirmed the judgment of $40,000 upon the filing of a remittitur of $5,000, and thereafter defendant’s petition for leave to appeal to the Supreme Court was denied, and on oral argument it was admitted by counsel for defendant that the Supreme Court of the United States had denied defendant’s petition for a writ of certiorari. November 14, 1936, the order striking defendant’s petition was entered.

At common law, if a judgment was erroneous in a matter of fact only, the party against whom the error was committed was entitled to have the judgment reversed in the same court on a writ of error coram no-bis. Consolidated Coal Co. v. Oeltjen, 189 Ill. 85. The writ was allowed for the purpose of revoking the judgment for some error of fact not appearing on the face of the record. People v. Schuedter, 336 Ill. 244.

In Chapman v. North American Ins. Co., 292 Ill. 179, the court said (p. 185): “At common law the writ of error coram nobis could be sued out of the same court when a judgment at law was rendered to reverse the judgment, and before the same judge who rendered the judgment, for error of fact that might be brought to the knowledge of the court that would be sufficient, of itself, to defeat the judgment. Such error of fact which may be assigned under such writ, or by motion under section 89 [new section 72] of our Practice act, which is controlled by similar rules, must be some fact unknown to the court at the time judgment was rendered, as well as ,one which would have precluded the rendition of the judgment. (Cramer v. Ill. Commercial Men’s Ass’n, 260 Ill. 516.) Familiar facts of the character involved in this suit and which are sufficient to cause a judgment to be reversed by writ of error co-ram nobis or motion under the statute, when such facts are unknown to the judge at the time of the judgment, are, that the nominal defendant was dead, an infant without guardian, a feme covert or a person insane at the time of the trial.”

Counsel for plaintiff say that the appeal should be dismissed because, “A writ of error coram nobis will not lie after the affirmance of the original judgment” by a court of review, and in support of this cite Partlow v. State, 194 Ind. 172; Boyd v. Smyth, 200 Iowa 687, and cases from other jurisdictions which sustain counsel’s contention. No Illinois case is cited, but in People v. McArthur, 283 Ill. App. 467, we passed upon the propriety of the vacating by the criminal court of a judgment of conviction based upon a motion pursuant to the provisions of section 72 of the Civil Practice Act, which had theretofore been affirmed by the Supreme Court (People v. McArthur, 359 Ill. 121), but the point now made was not there considered. Section 72 of our Civil Practice Act, which is the authority for the institution of the instant proceeding, provides: “The writ of error coram nobis is hereby abolished, and all errors in fact, committed in the proceedings of any court of record, and which, by the common law, could have been corrected by said writ, may be corrected by the court in which the error was committed, upon motion in writing made at any time within five years after the rendition of final judgment in the case.” Ill. State Bar Stats. 1935, ch. 110, jf 200; Jones Ill. Stats. Ann. 104.072. We agree with counsel for defendant when they say, “It is to be observed that the statute does not say that the right to this relief is not available in the event there has been an appeal in the principal proceeding. If that had been the intention of the legislators, that limitation on the right to the writ would have been supplied.” The motion to dismiss the appeal is denied.

Counsel for petitioner say that, “The courts of last resort of numerous states have repeatedly held that parties to a lawsuit are entitled to truthful answers from prospective jurors on their voir dire; and that failure to disclose material facts in answer to pertinent questions by such a juror entitles the party misled to a new trial,” and in support of this cite Cleveland Ry. Co. v. Myers, 50 Ohio App. 224,197 N. E. 803; Pearcy v. Michigan Mut. Life Ins. Co., Ill Ind. 59, 12 N. E. 98; Lindemann v. San Joaquin Cotton Oil Co., 5 Cal. (2d) 480, 55 Pac. (2d) 870; Knickerbocker v. Erie R. Co., 286 N. Y. Supp. 1001; Clark v. United States, 289 U. S. 1, and other cases.

In the Myers case, in the selection of the jury the court addressed some general remarks to the jurors and inquired whether they had any case in court, and counsel for the railway company also asked the jurors if any of their relatives ever had a claim for personal injuries. All the members of the panel remained silent. • There was a verdict for plaintiff, and on a motion for a new trial it appeared that one of the jurors had, prior tó the time of the trial, been in an automobile accident in which he suffered a broken neck. The motion for a new trial was overruled, but the judgment was reversed by the Court of Appeals of Ohio. The court there said (p. 805): “If the true facts are not disclosed in response to proper inquiries on voir dire examination, no party ever could exercise his right to challenge upon suspicion of prejudice. A party has a right to have all proper and pertinent questions on voir dire examination answered truthfully. ... If a truthful answer is not given by the juror, there is no way that a party may determine facts upon which to base a challenge upon suspicion of prejudice, or even peremptorily.”

In the Pearcy case (111 Ind. 59) an action was brought to recover on a life insurance policy. A new trial was asked for the reason that one of the jurors on his voir dire was asked whether he held a policy of insurance issued by the defendant. He answered in the negative, the truth being that he had taken out such policy for the benefit of his wife. Plaintiff having no knowledge of this fact, the circuit court of Indiana held that the juror was guilty of such concealment and misconduct as to entitle the plaintiff to a new trial. The court said (p. 62): “In this instance the appellant had a right to a full and truthful answer from Bowman, and it was his duty to make that answer without evasion, equivocation or concealment. . . . It was not incumbent upon the appellee to minutely cover by a long series of specific questions all phases of the subject, but it was enough to ask such a question as would indicate to the mind of a fair and reasonable man what information the examining counsel sought to elicit.” '

In the Lindemann case (55 Pac. (2d) 870) during the course of the trial it was discovered that one of the jurors gave untrue answers to questions on voir dire and it was held that a new trial may be granted on this ground if it appears that the moving party was not aware of the force of the answers until after the verdict was rendered.

In the Knickerbocker case (286 N. Y. Supp. 1001) the Appellate Division of the Supreme Court of New York held that it was not an abuse of the discretion of the trial judge to grant a new trial after verdict for plaintiff in a death action against the railroad, on the ground of bias of a juror who had untruthfully stated when examined by the railroad’s attorney, that he had never had a claim against any railroad, and he had stated after trial that he was “laying for” the attorney for the railroad.

In the Clark case (289 U. S. 1) a contempt proceeding was brought against Mrs. Clark on the ground that she had wilfully, knowingly and misleadingly given answers affecting her qualifications as a juror. In confirming the judgment of conviction the court said (p. 10): “Concealment or misstatement by a juror upon a voir dire examination is punishable as a contempt if its tendency and design are to obstruct the processes of justice.

“There was concealment by the petitioner, and that wilful and deliberate. . . . She had been warned that disclosure would lead to challenge and rejection. With her mind full of the warning she told the part truth that was useless, and held back the other part that had significance and value. Whether this was perjury or false swearing, there is no occasion to inquire. It was a deliberate endeavor to thwart the process of inquiry, and to turn a trial into a futile form. ’ ’

We think none of these cases is in point. In all of them except the Clark case the question arose after verdict on a motion for a new trial and before judgment. ‘Nor are the facts substantially the same as the facts as disclosed by the petition in the instant case. In each of the cases we think it appears that the party asking the new trial might have been prejudiced by the false answers given by the prospective jurors. While in the instant case we think it clear that the questions put to the prospective juror by counsel for each party, and the answers made, tend to indicate that he would be more favorable to' the defendant railroad company than to the plaintiff.

In the petition it is said that on March 16, 1923, the juror while driving a truck ran over and killed a pedestrian; that on October 21, 1931, the son of the juror was a defendant in a personal injury suit where the damages were laid at $25,000, and that on July 1, 1913, the juror ‘ ‘ fell over a bolt sticking up from the bottom of one of the cars and sustained two broken ribs.”

In the instant case, as in all cases, “the rule of reason” must constantly be kept in mind. Judgments are not reversed for every error that appears in the record. If this were so, few if any, would be permitted to stand. But we think the true test in the case at bar is not whether the prospective juror answered truthfully and fully the questions put to him, but, Has the petitioner been prejudiced in the case! Swam v. Boston Store, 191 Ill. App. 84; Pienta v. Chicago City Ry. Co., 208 Ill. App. 309; Edwall v. Chicago, R. I. & P. Ry. Co., 208 Ill. App. 489; Raub v. Carpenter, 187 U. S. 159; United States v. Rosenstein, 34 F. (2d) 630; O’Brien v. Gen. Accident Corp., 42 F. (2d) 48; James v. State, 68 Ark. 464; State v. Cleary, 40 Kan. 287; State v. Brown, 114 Kan. 452; Schmidt v. Rose, 6 Mo. App. 579; Hays v. Thompson, 15 Abbotte Pr. New Series, 220; Burden v. Stevens, 174 Okla. 312; Suggs v. State, 46 Okla. Crim. 340; Sansouver v. Glenlyon Dye Works, 28 R. I. 539; Leeper v. State, 29 Tex. Crim. App. 63; Goad v. State, 106 Tenn. 175; Beck v. Thompson, 31 W. Va. 459.

In the Swan case (191 Ill. App. 84) it was held that it was not reversible error for the trial judge to overrule the motion for a new trial because a juror had made incorrect and • misleading answers on his voir dire examination, since it did not appear that the juror was prejudiced or biased against the defendant.

In the Pienta case (208 Ill. App. 309), a suit to recover for personal injuries, a prospective juror was asked whether he or any of his relatives had ever been in a street car accident, and whether he or they had ever been interested “in a case of that kind.” He replied in the negative. It afterward appeared that his wife had met with an accident on a sidewalk and had settled a claim therefor with the city, and it was held that the reply was not untrue, and the judgment was affirmed.

In the Edwall case (208 Ill. App. 489) suit was brought to recover damages for personal injuries. The court there said (p. 503): “A brother-in-law of one of the firm of defendant’s attorneys (not the one that tried the case) was accepted on the jury without plaintiff’s knowledge of that relation. Affidavits are filed here tending to show that the juror evaded questions put to him on his voir dire that ought to have developed that fact. . . . We do not regard this reversible error.”

In Baud v. Carpenter (187 U. S. 159), a motion was made to vacate a decree, one of the grounds being that one of the jurors was disqualified for service because he was under the age of 21 years and had several times been convicted of the crime of petit larceny, and it was charged that the juror had falsely answered questions put to him on his voir dire touching these two questions. The motion was overruled and the Supreme Court of the United States held that the matter was within the discretion of the trial court. The court there refers to Wassum v. Feeney, 121 Mass. 93, where that court referred with approval to Mill v. Yates, 12 East 229, where it was said, “where the son of a juryman unlawfully served in his "father’s place, and pointed out that Lord Ellenborough there ‘said that he had mentioned the case to all the judges, and they were all of opinion that it was a matter within their discretion to grant or refuse a new trial on such a ground; that if no injustice had been done, they would not interfere in this mode.’ ”

In State v. Cleary, 40 Kan. 287, the court said (p. 295): “It has been decided in very many reported cases that the most important consideration in questions about the impartiality of jurors, is whether an unjust verdict lias resulted from the presence of obnoxious jurors upon the panel; if not, it would be idle to grant a new trial, which would probably be productive only of the same result.”

And in Suggs v. State, 46 Okla. Crim. 340, 285 Pac. 985, the court said (p. 986): “As a general rule a verdict will not be set aside for reasons that would be sufficient to disqualify a juror on a challenge for cause which existed before the juror was sworn, but which was unknown to accused until after the verdict, unless it appears from the • whole case that the accused suffered injustice from the fact that the juror served in the case.” To the same effect are the other cases above cited, but we think it would serve no useful purpose to discuss them.

Since it is held in the cases above cited that it is not error for the court to overrule a motion for a new trial where a prospective juror has answered falsely or has not sufficiently disclosed the facts, unless prejudice is shown, with greater reason, we think, should the court deny a new trial where the motion, under section 72 of the Practice Act, is not made until after judgment has been entered, and where, as in the instant case, the judgment has been affirmed on appeal to this court, and leave to appeal has been denied by the Supreme Court.

The order of the superior court of Cook county is affirmed.

Order affirmed.

Matchett, P. J., and McSttrely, J., concur.


author: Mr. Justice O’Cohhor

text:
    Agnes Burns, Appellee, v. Charles R. Kunz and Fred Kunz, Appellants.
    Gen. No. 39,393.
    Opinion filed May 10, 1937.
    Rehearing denied May 24, 1937.
    Thomas P. Quinn, of Chicago, for appellants.

      Louis T. Herzoh, of Chicago, for appellee.
   Mr. Justice O’Cohhor

delivered the opinion of the court.

Plaintiff brought an action against Charles B. Kunz, Fred Kunz and the City of Chicago to recover damages for personal injuries claimed to have been sustained by her through the negligence of the defendants in failing to keep a sidewalk in repair. At the close of all the evidence the court sustained a motion of the City of Chicago for a directed verdict and it was dismissed out of the case. The jury returned a verdict against the two Kunzes for $2,500; judgment was entered on the verdict, and they appeal.

November 20, 1934, plaintiff filed her complaint alleging that on or prior to May 31, 1934, the Kunzes and the City “were jointly and severally possessed of and had control of a certain public sidewalk” on Ohio street at its intersection with Spaulding avenue, Chicago ; that it was the duty of the defendants to use due care to keep and maintain the sidewalk in good condition for the passage of persons walking on it; that defendants failed to keep the sidewalk in good repair but negligently suffered it to be and remain “in bad and unsafe condition and repair and the surface of the same to be broken and depressed and permitted broken stone and disintegrated cement, from which said sidewalk was constructed, to be and remain in fragments and loose upon the surface” at the place in question so that certain parts or slabs of the sidewalk protruded above the level of the sidewalk, and that plaintiff, who was then and there walking on the sidewalk and who was in the exercise of due care for her own safety, “unavoidably and necessarily tripped, stumbled and her feet gave way beneath her from said unevenness caused by the said bad repair of said sidewalk” and she was thereby thrown and severely injured. It is further alleged in the complaint that plaintiff gave to the city officials the notice required by statute.

The City filed its answer and on December 17, 1934, the Kunzes filed their answer in which they denied that they jointly and severally possessed and had control of the sidewalk in question, and denied that it was their duty to keep and maintain the sidewalk in a good and safe condition.

October 13, 1936, nearly two years after the action was instituted, the cause was called for trial, a jury impaneled, and at the close of all the evidence, October 15th, the court instructed the jury to find defendant City of Chicago not guilty, the case went to the jury as to the Kunzes, and the verdict was in plaintiff’s favor and damages were assessed at $2,500.

The Kunzes filed a written motion for a verdict in their favor notwithstanding the verdict. They also filed a written motion for a new trial, one of the grounds being that the court erred in not instructing the jury to find for the defendants at the close of all the evidence. November 20, 1936, the court overruled defendants’ motion for judgment notwithstanding the verdict, their motion for a new trial arid their motion in arrest of judgment, and entered judgment on the verdict. December 5th the Kunzes filed their notice of appeal; they afterward filed their praecipe for record, and on December 14th notice was served on counsel for plaintiff that the Kunzes would, on the next day, ask the court to fix the amount of the appeal bond; December 15th an order was accordingly entered fixing the appeal bond at $3,500. The next day, pursuant to notice given by counsel for plaintiff, the court entered an order giving plaintiff leave to file her “Amended Bill of Complaint nunc pro tunc as of October 15, 1936,” and an amended complaint was that day filed. The amended complaint was against the Kunzes and it alleged that they possessed and had control of the sidewalk on Ohio street near Spaulding avenue, etc.

The evidence is not preserved in the record, but the given and refused instructions are erroneously incorporated in the common law record. The proper place for instructions is in the report of the proceedings of the trial; they have no proper place in the common law record. (Janelunas v. Chicago Fraternal Life Ass’n, 286 Ill. App. 219.) Since there is no evidence in the record the instructions cannot be considered. Whether an instruction is good or bad, obviously must be determined from the evidence.

Counsel for defendants say that the case was dismissed as to the City of Chicago because of the insufficiency of the statutory notice which failed to give the name of the plaintiff and her address; that “it was an afterthought that proof was offered by the plaintiff in an attempt to convince the jury that the defendants, appellants, were guilty of negligence, which to their surprise and consternation, she was successful in doing.” There is no warrant in the record for such statement. As stated, the evidence is not preserved. Just why counsel for the defendants should have been surprised does not appear, because the complaint ran against them and was filed nearly two years before commencement of the trial.

Counsel further say that, “Defendants were called to trial suddenly and did not have a court reporter; therefore, had no record of the proceedings.” This is not borne out by the record. The case went to trial and a jury was impaneled on October 13; the trial continued on the 14th of October and the jury rendered its verdict on the 15th of October.

Counsel for defendants also complains of erroneous rulings on instructions. Obviously such argument has no place in view of the fact that the evidence is not preserved in the record.

Counsel for plaintiff in his brief contends that the defendants’ statement of the case in their brief, “is erroneous and in violation of Buie 23, ’ ’ and then proceeds to give the form of the action, the nature of the pleadings, the evidence and judgment. We have no such rule nor has the Supreme Court enacted any such rule. Buie 23 of the Supreme Court provides for the keeping of trial dockets; Buie 23 of this court provides for the trial of agreed cases where questions of law are certified. Briefs in this court should be prepared in accordance with Buie 7 of this court.

In her complaint plaintiff alleged that she was injured by reason of the defective condition of a public sidewalk in Chicago through the negligence of the Kunzes and the City of Chicago in failing to keep it in repair; and after the City of Chicago had been instructed out of the case and after the verdict and judgment in her favor against the Kunzes, and also after notice of appeal and praecipe for record; plaintiff by leave of court filed an amended complaint against the Kunzes. But the amended complaint also alleged that the sidewalk was “located on a certain street called Ohio street” at its intersection with Spaulding avenue, in Chicago. Neither the complaint nor the amended complaint stated a cause of action against the Kunzes. It was the duty of the City of Chicago to keep the sidewalk in repair, and not that of the Kunzes, the abutting property owners. City of Bloomington v. Bay, 42 Ill. 503; Gridley v. City of Bloomington, 88 Ill. 554; City of Chicago v. O’Brien, 111 Ill. 532; City of Chicago v. Crosby, 111 Ill. 538.

The Bay case (42 Ill. 503) was an action against the City to recover damages for personal injuries occasioned by a defective sidewalk. It was contended that the abutting property owner alone was liable, but the contention was overruled. The court there said (pp. 506, 507): “The establishment of sidewalks is the act of the authorities, they, by ordinance, requiring, along certain streets on both sides, a certain width to be left, to be used as sidewalks for pedestrians. . . .

“The fact that the city authorities could impose the duty of constructing sidewalks upon the lot owners, cannot relieve them from their liability, in case a sidewalk, no matter by whom constructed, is suffered to be and remain out of repair and dangerous to use. ’ ’ And the court there held that although the abutting property owner built the sidewalk it was the duty of the City to keep it in a safe condition for use.

In the Gridley case (88 Ill. 554) the validity of a city ordinance which required the abutting property owner to remove snow from the sidewalk in front of his premises and providing for a penalty for failure so to do, was held invalid for the reason that it was the duty of the City and not the abutting property owner to use diligence to keep the sidewalks in a safe condition. The court there said (p. 556): “It is plain defendant has ho other interest in the street in front of his property than any other citizen of the municipality. The same is true of the sidewalk. It is a part of the street set apart for the exclusive use of persons traveling on foot, and is as much under the control of the municipal government as the street itself. . . . The sidewalk, as was declared in the ease cited [40 Ill. 211] is as much a public highway, free to the use of all, as the street itself, and, upon principle it follows the citizen cannot be laid under obligations, under our laws, to keep it free from obstructions in front of his property at his own expense, any more than the street itself.” To the same effect are the O’Brien and the Crosby cases in 111 Ill.

The judgment of the superior court of Cook county is reversed and-the cause remanded.

Reversed and remanded,

Matohbtt, P. J., and McStjbblt, J., concur.


author: Mr. Presiding Justice Huffman

text:
    George P. Racine, Trading as George P. Racine and Company, Appellant, v. The Catholic Bishop of Chicago, Appellee.
    Gen. No. 9,170.
    Dove, J., dissenting.
    Opinion filed April 14, 1937.
    Rehearing denied May 21, 1937.
    Coburn, Kearney & Coburn, of Chicago, for appellant; Edmund H. Palmer, of counsel.
    Kirkland, Fleming, Green, Martin & Ellis and Charles F. Rathbun, all of Chicago, for appellee; Harold J. Tallett, of Waukegan, and William H. Symmes and Charles F. Rathbun, both of Chicago, of counsel.
   Mr. Presiding Justice Huffman

delivered the opinion of the court.

This is an action for damages to plaintiff’s land, instituted by appellant against appellee, in the circuit court of Lake county. Appellant contends that he is the owner of a tract of land which he had caused to be subdivided into lots for the purpose of sale; that appellee caused to be erected a large seminary in the vicinity of said subdivision; that a creek ran along one side of the subdivision, and that appellee permitted the sewage from the seminary buildings to flow into this creek; that the air over the subdivision thereby was filled with foul odors, and by reason thereof the business of plaintiff was completely destroyed. At the close of the plaintiff’s evidence, on motion of defendant, the court instructed the jury to find the defendant not guilty. The plaintiff has prosecuted this appeal.

The land in question was a 50-acre tract belonging to Mrs. Rebecca Holcomb. The property was located at Mundelein, Illinois. On July 12, 1924, she entered into a contract with appellant, wherein she was designated as the party of the first part, and appellant, as party of the second part; and wherein it was provided that:

“Said party of the first part agrees to accept the sum of One Hundred Thousand Dollars ($100,000.00) for said property to be paid to her from the proceeds of the sale of lots or blocks to be subdivided as hereinafter set forth, such payment to be made as follows:

“Upon the sale of each lot or block seventy-five percent (75%) of the first payment thereon is to be paid to said party of the first part and twenty-five percent (25%) to the said party of the second party; and all subsequent payments in the same proportions. Such One Hundred Thousand Dollars ($100,000.00) are to be paid to said party of the first part on or before fifteen months (15) from date hereof, and if not so paid at that time, so much of the balance as shall remain unpaid shall bear interest at the rate of six percent (6%) per annum, beginning October 12, 1925, until fully paid.

“The party of the first part agrees to pay general taxes on said property for the year 1924.

“The party of the second part, in consideration of the above, agrees to conduct a selling campaign and to advertise said lots and pay all expenses incidental thereto, and also to pay for the surveying, filing- of plat, staking* of lots and streets and other incidentals thereto.

“This contract is to be binding upon the heirs, executors, administrators and assigns of the parties hereto.

“Witness our hands and seals the day and year first above written.

“Rebecca C. Holcomb (seal) George P. Racine (seal)”

Appellant claims that the court erred in sustaining the motion of appellee and in directing* a verdict. Appellee takes the position that the alleged nuisance in question was not a permanent one, but such as is commonly termed a temporary or continuing* nuisance; that in such cases, future damages beyond the time of beginning the suit, and damages involving depreciation in land value, cannot be recovered in an action based upon a temporary or continuing* nuisance. Appellee further contends that the only question presented in this appeal is one of the correct measure of damages, urging* that appellant sought to recover damages in this case to which, under the law, he was not entitled.

It has been said, as to nuisances which may be removed at any time or abated at the instance of a party aggrieved thereby, that the depreciation in the market or selling* value of the premises affected, was not the measure of damages, and evidence of such depreciation not proper, Fairbank Co. v. Nicolai, 167 Ill, 242, 246, If the property alleged to be damaged is rental property, then in case of injury from such nuisance, the damages would be measured by the loss in rental value; and if the plaintiff occupies the premises himself, the damages would be measured by his discomfort and the deprivation of the use and comforts of his home. In the case now before us, the plaintiff neither lived upon the premises nor used the same for rental purposes. He alleged that a total loss had been sustained by him with respect to the market value of the unsold lots in said subdivision. It has been said that the pollution of a stream by sewage is a continuing nuisance, and that, “when a nuisance is regarded as a continued rather than a permanent one, judgments at law are held to afford compensation only for the injury sustained to the time of such judgment, and a continuance of the nuisance, is a grievance for which subsequent actions may be maintained.” City of Kewanee v. Otley, 204 Ill. 402, 411. To the same effect are Schlitz Brewing Co. v. Compton, 142 Ill. 511; Collins v. Cosgrove-Meehan Coal Co., 279 Ill. App. 98.

After an examination of the record, we fail to find where appellant’s evidence tended to show any item of damages which could be considered proper under the rules applicable to this action. The record fails to disclose any evidence tending to show what damages appellant claims to have sustained or the extent thereof, except his claim that the appellee, by admitting sewage to the creek, has destroyed the entire market value of the unsold lots in said subdivision, to the damage of appellant of $105,000. Such was not a proper element of damages in this case. Appellant announced that he was not contending for nominal damages and expressly waived that feature of the case.

The judgment of the trial court is affirmed.

Judgment affirmed.

Dove, J., dissents.