text:
    Northwestern Military and Naval Academy, Appellee, v. Lee Wadleigh and Lettie Wadleigh, Appellants.
    Gen. No. 8,441.

      Opinion filed June 7, 1932.
    Rehearing denied July 23, 1932.

      Gower, Gray & Gower, for appellants; Foster A. Smith and Joseph J. Tolson, of counsel.
    Walter O. Schneider, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

This appeal is being prosecuted by Lee Wadleigh and Lettie Wadleigh, husband and wife, to reverse" a judgment for $500 obtained against them in the circuit court of Kankakee county by the appellee, the Northwestern Military and Naval Academy, a corporation, in an action of assumpsit. The amount of the judgment is the balance alleged in the declaration of the appellee to be due from the appellants for tuition for their son, Morey C. Wadleigh. It is first to be determined if the trial court erred in not sustaining Lee Wadleigh’s plea in abatement. The liability of Lee Wadleigh to pay the unpaid portion of the tuition turns upon questions of law raised by the pleadings and involves, it is contended by appellee, a construction of section 15 of the Husband and Wife Act. (Cahill’s St. ch. 68, ¶ 15; Smith-Hurd, Ill. Rev. St. ch. 68.)

The declaration alleges that appellee was conducting an academy providing for a limited number of boys academic, physical, moral, military and naval training for an annual tuition of $1,200; that the appellants on August 5,1922, were husband and wife and the parents of Morey C. Wadleigh, aged 18 years, and the three constituted a family; that appellants were jointly and severally liable for the care, support and education of Morey; that on July 26, 1922, Lee Wadleigh requested appellee to mail to him a copy of the Academy’s catalogue. This was forwarded to him at his address at Herscher, Illinois, on July 28, 1922.

The declaration further avers that the catalogue so forwarded to Lee Wadleigh, as the defendants and each of them then and there well knew contained among other things the following provisions: “The annual charge of Twelve Hundred Dollars ($1200.00) covers not only the usual board, tuition and laundry fee, but furnishes the use of all required military, naval and other uniforms and accoutrements, school, laboratory and gymnasium equipment, flannel, rubber capes, books, stationery, collars, white gloves, spending money, excursions, medical attendance and medicine for all cases of sickness not considered serious enough for the services of an outside physician; in other words, everything that is necessary for the student’s health and comfort and the proper carrying on of his school work.

“The. annual charge for board, tuition, spending money, etc., is payable at the opening of school. Parents who find it more convenient may divide this sum into payments of $700.00 at the opening of school and the balance, $500.00, on the first of the January following. At the time of filing the application for admission a registration fee of $25.00 is required.

“Cadets who leave the institution before the end of the academic year, without the consent of the faculty, or at any time without a clear record, or contrary to regulations, cannot be granted an honorable discharge, and no financial refund or reduction of the year’s charges can be made.

“It is a condition upon which a cadet is admitted that he remain in the Academy until the end of the academic year unless discharged by the faculty. . . . It is distinctly understood, therefore, between the parent and the school that there can be no reduction in the charges in the case of a cadet leaving for any cause before the close of the school year.”

The declaration further alleges that Lettie Wadleigh on August 15, 1922, signed a printed application whereby she made application to the appellee to enroll and admit Morey as a cadet of the Academy for the school year beginning in September, 1922. The application by its terms is made subject to the provisions of the printed catalogue of the Academy. That Morey was accepted as a cadet for the school year; that he entered the academy and remained as a student until January 7, 1923. At which time, with the knowledge and consent of the defendants, and without fault or consent of the faculty of the Academy, Morey refused and neglected to return to the school; that plaintiff performed all duties and obligations devolving upon it toward said Morey O. Wadleigh, and offered and did provide him with board, tuition, laundry, military and naval uniforms, etc., and since said time plaintiff has been ready and willing to carry out and complete its contract.

The declaration further alleges that defendants, through and by reason of said application being executed by Lettie Wadleigh and its acceptance by the plaintiff, and by force of the statute in such case made and provided, engaged themselves and each of them to pay to plaintiff $1,200, and to comply with all of the provisions of said catalogue; yet, the defendants, not regarding their said promises and undertakings, did not, and would not, pay to the plaintiff the said $1,200, but have paid the plaintiff only the sum of $700, and have refused to pay the remaining sum of $500, though often requested, etc.

Lee Wadleigh did not sign the application for admission of his son to the Academy. His plea in abatement prayed that the suit against him be dismissed. Upon a hearing on the pléa, the court entered a judgment not sustaining the plea and Lee Wadleigh was ordered to plead further. Thereafter he filed a general and special demurrer to the declaration. The demurrer was overruled, Lee Wadleigh stood by his demurrer, and thereupon the court rendered and entered a judgment of default against him.

Lettie Wadleigh filed the general issue to the declaration, a trial was had before a jury, and at the close of all of the evidence the court, on motion of the appellee, instructed the jury to find a verdict against Lee Wadleigh and Lettie Wadleigh for $500; judgment was rendered on the verdict.

It is urged by Lee Wadleigh that the court erred in entering judgment respondeat ouster against him on the determination of his pleas in abatement. On behalf of Lettie Wadleigh it is assigned as error that the court improperly directed a verdict against her and that the court should have granted her motion for a directed verdict in her favor made by her at the close of all of the evidence.

The plea in abatement alleges that the several promises in the declaration mentioned were each made by Lettie Wadleigh alone and not by Lee Wadleigh, either alone or with Lettie Wadleigh. Neither a replication nor a demurrer was filed to the plea; nor was a motion made to strike the plea. From an examination of the record, it has been determined that the issue raised by the plea was decided by the court as a question of law triable by the record. Miller v. Grand Lodge Brotherhood of Railroad Trainmen, 206 Ill. App. 241; Little v. Blue Goose Motor Coach Co., 244 Ill. App. 427; King v. Haines, 23 Ill. 340; Life Ass’n of America v. Fassett, 102 Ill. 315; Sturdivant v. Smith, 29 Me. 387.

To sustain his contention that the plea should have been sustained, it is urged by Lee Wadleigh that the declaration does not allege an express contract by him to pay the tuition, nor does it allege facts showing a statutory liability on his part to pay the tuition under section 15 of the Husband and Wife Act, Cahill’s St. ch. 68, ¶ 15.

In answer to Lee Wadleigh’s contention, the appellee states that the declaration does sufficiently allege a contract relation between Lee Wadleigh and the appellee, not that it charges him to be a party to the written application signed by Ms wife, as a matter of agency or otherwise, but nevertheless, a party to a contract. In other words, appellee’s contention is that the facts averred in the declaration are sufficient to charge Lee Wadleigh with an implied contract; that the contract, evidenced by the application and the terms of the catalogue, by legal interpretations and by its provisions, is entire and indivisible; that both the express contract of Lettie Wadleigh and the implied contract of Lee Wadleigh are both executed and not executory; that, therefore, Lee Wadleigh is liable on his implied contract to pay the unpaid balance of $500 of the $1,200 tuition for the entire school year.

Lettie Wadleigh signed the application for the admission of Morey as a cadet of the Academy. He was accepted as such cadet by the Academy for the school year. The application was subject to the terms of the printed catalogue and the regulations of the academy which very fully and clearly stated and defined the tuition, board, clothing, etc., which were to be furnished by the Academy for the school year upon the promise of Lettie Wadleigh to pay the annual charge of $1,200. Thus it is very plain that by her signing the application and the Academy accepting Morey as a cadet, Lettie Wadleigh and the Academy entered into an express contract covering the entire subject matter which is now the ground, or basis, of the litigation between the parties to this action, the express contract being evidenced, of course, by the application and the terms of the catalogue. Culver Military Academy v. Staley, 250 Ill. App. 531; Hitchcock Military Academy v. Myers, 76 Cal. App. 473 (hearing denied before Supreme Court of Cal., April 5, 1926); Vidor v. Peacock (Tex. Civ. App.), 145 S. W. 672; Curry v. Lasell Seminary Co., 168 Mass. 7, 46 N. E. 110; Teeter v. Horner Military School, 165 N. C. 564, 81 S. E. 767; Van Brink v. Lehman, 199 N. Y. App. Div. 784, 192 N. Y. 342.

The allegations of the declaration have not escaped our attention. We are aware of cases holding that where a parent has read or knows the terms with respect to the tuition and other charges contained in the catalogue of a private school, and sends his child to the school as a student for the purpose of receiving instruction and being maintained as stated in the catalogue, his act is an implied acceptance of the offer of contract contained in the catalogue, although the parent fails or refuses to sign the application for his child’s admission to the school. Vidor v. Peacock, supra; Horner School v. Wescott, 124 N. C. 518, 32 S. E. 885; Kentucky Military Institute v. Bramblet, 158 Ky. 205, 164 S. W. 808. It would seem there is much merit in the contention of the appellee, considered as a general proposition. However, as above stated, in the case at bar an express contract exists covering the entire subject matter arising from which the appellee seeks to have the law imply a contract on the part of Lee Wadleigh to pay the whole tuition. In this State the law is well settled that where an express contract exists about the entire subject an action to recover what has been done or furnished must be between the parties to the contract, and a third person, though benefited by the contract, or the performance thereof, cannot be sued upon implied contract, or on implied assumpsit. Walker v. Brown, 28 Ill. 378; Compton v. Payne, 69 Ill. 354; Morrison v. Jones, 6 Ill. App. 89; Serber v. McLaughlin, 97 Ill. App. 104; Ballard v. Shea, 121 Ill. App. 135; Illingsworth v. Slosson, 19 Ill. App. 612.

It is next contended by the appellee that incidentally Lee Wadleigh is liable under the statutes, meaning said section 15, Cahill’s St. ch. 68, ¶ 15, which reads as follows: “The expanses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.” Appellee in his argument replies at some length to the position taken by the appellant that the family expenses are such as are incurred for articles to be used in the family and actually used or kept for such use therein. Appellants’ position is supported by the cases of Hyman v. Harding, 162 Ill. 357; Robertson v. Warden, 197 Ill. App. 478; Blackstone Shop v. Ashman, 250 Ill. App. 401; Lederer v. Blair, 212 Ill. App. 141. Appellee does not deny that these cases fully sustain appellants’ position as to family expenses, but it argues that Lee Wadleigh is liable under the words of the statute, ‘ ‘ and of the education of the children. ’ ’ The offer of the Academy was to board, lodge, and clothe Morey Wadleigh, the minor son of Lee Wadleigh, for the entire school year. Upon what theory Lee Wadleigh is to be held liable, under the statute, for those family expenses not furnished, by bringing them within the terms of the statute, “and of the education of the children,” because the Academy was also to give Morey, during that time, a course of instruction preparatory to business, is not made clear to this court. The position of the appellee is not tenable. We are of the opinion that the plea in abatement should have been sustained.

The case must be reversed and remanded. The case has been pending in the courts for almost 10 years. It should be brought to an end. The defense of Lettie Wadleigh that she was deceived by the published terms of the catalogue and as a consequence Morey did not receive the course of instruction for which he was entered in the Academy, is contradicted by the statements contained in the catalogue, and is without force. The contract between Lettie Wadleigh and the Academy was entire and indivisible, and the Academy is entitled to recover from her the whole $500, or nothing. Manson v. Culver Military Academy, 141 Ill. App. 250; Curry v. Lasell Seminary Co., 168 Mass. 7, 46 N. E. 110; Teeter v. Horner Military School, 165 N. C. 564, 81 S. E. 767; Fessman v. Seeley (Tex. Civ. App.), 30 S. W. 268; Van Brink v. Lehman, supra; Kabus v. Seftner, 69 N. Y. S. 983; Collins v. Price, 5 Bing. 132, 15 English Law Rep. 507; International Text-Book Co. v. Martin, 92 Neb. 430, 138 N. W. 582; Head v. Theis, 106 N. J. L. 281, 150 Atl. 191; Hitchcock Military Academy v. Myer, supra; Hall v. Mt. Ida School for Girls, 258 Mass. 464, 155 N. E. 418; Kentucky Military Institute v. Bramblet, 158 Ky. 205, 164 S. W. 808.

The rule is different in the State of Michigan: Mt. Ida School for Girls v. Rood, 253 Mich. 482, 235 N. W. 227.

This court is not seriously impressed with the testimony of Morey Wadleigh which is relied upon by the appellant, Lettie Wadleigh, to prove a breach of contract by the appellee. An examination of his cross-examination shows that the alleged failure of the Academy to furnish satisfactory food, and to' provide instruction in music, and to provide uniforms, were not the reasons for his failure to return to the academy as a cadet. He also complains that he was not given training in penmanship. The catalogue stated, “Penmanship and spelling are insisted upon for all who need it.” Morey never made any request for such training, and only proof of his need of it is his testimony that he thought he needed it. It is also urged that hazing was practiced by the cadets contrary to the rules of the Academy. Morey testified that he and the other freshmen were called rats by upper classmen and he was compelled by them to shine their shoes and clean their gloves. He was unable to state, or estimate, how many gloves he washed; he polished, he imagined, about a dozen pairs of shoes. He made no complaint to the authorities of the Academy about the treatment he received. There is no evidence in the record that the officials of the school knew or acquiesced in such treatment, or that they did not use reasonable efforts to discover the condition and stop it; The contract voluntarily entered into by the parties cannot thus lightly be set aside. The court did not err in directing a verdict against Lettie Wadleigh for $500. Offutt v. World’s Columbian Exhibition, 175 Ill. 472.

There being no liability of the defendant, Lee Wadleigh, to pay as charged in the declaration, it necessarily follows there should not be a joint judgment against him and his wife in this case. A joint judgment is an entirety and must stand or fall as against both defendants. Seymour v. Richardson Fueling Co., 205 Ill. 77; Woods v. Bowman, 200 Ill. App. 612; Sergo v. Bloch, 263 Ill. App. 198.

The judgment of the circuit court of Kankakee county is hereby reversed and the case remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Wolfe

license: Public Domain

text:
    Leo Benson, Appellee, v. The Chicago, Rock Island and Pacific Railway Company, Appellant.
    Gen. No. 8,491.

      Opinion filed June 7, 1932.
    Rehearing denied July 23, 1932.
    Miller, Elliott & Westervelt, for appellant; Eugene R. Johnson, of counsel.
    John E. Cassidy, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

Leo Benson, appellee, had been an employee of the Chicago, Rock Island & Pacific Railway Company for a period of nine or ten years. All of that time he was employed as a switchman and had the ordinary duties of a switchman to perform. On the 17th day of August, 1929, while employed as such switchman for said railway company he was injured by a train of the defendant. He brought suit in the circuit court of Peoria county alleging that his injuries were caused by the negligence of the defendant company. The case was tried before a jury which returned a verdict in favor of the plaintiff in the sum of $32,500. Judgment was entered on the verdict and the case is brought to this court for review. The declaration consists of two counts, each of which charges that on August 17, 1929, plaintiff and defendant were employee and employer respectively, and engaged in interstate transportation or commerce by rail and that plaintiff was employed in defendant’s railroad yards in Peoria as a member of the train crew.

The first count especially charges that plaintiff was engaged in switching a certain cut of railway cars in the work of interstate commerce; that while he was so engaged he was injured because of the negligence of the defendant in permitting a strand of wire to be attached to a handhold of one of the cars in the switching cut, which made it unsafe for the employees; that when the plaintiff was in the act of securing himself and his personal safety by grasping said handhold his glove became entangled in said wire, as a result of which he was pulled or dragged some distance, after which he was struck by another freight car which was then in the same switching operation, etc. This count charges that as a result plaintiff was injured in certain respects recited therein.

The second count is a charge of general negligence. It avers that at the time of his injury plaintiff was engaged, as an employee of defendant in interstate commerce, in a certain switching operation and that by reason of carelessness and recklessness of the agents and servants of defendant, a railway car was propelled against plaintiff with great force, striking him in the back, causing the injuries there recited.

The declaration claimed damages of $50,000.

Defendant’s only plea was that of general issue, filed November 8, 1930.

The accident happened about 11 o ’clock on the morning of August 17,1929, while the appellee was engaged in switching some cars from a train consisting of an engine and seven or eight freight cars. The appellee was one of a train crew of four which was in charge of this particular train on which this train crew was working. The appellee was engaged in setting the cars in places where they were either to be loaded or unloaded and then sent to their particular destination. This train had been made up and moved down into the yard where the cars were taken from the main track and shunted onto a side track. The cars were being pushed by the engine. At the time of the accident to the appellee, he was standing by the side of the track with his face towards the approaching cars. It was his duty to uncouple the first car, or the one farthest from the engine by pulling a coupling pin, and then the foreman standing off from the side of the train would signal the engineer to stop the engine and the other cars, and the car that had been uncoupled would roll on down the track to its destination. The cars were approaching the appellee at the rate of speed estimated at six to eight miles per hour. As the first car reached the appellee he reached up with his right hand and took hold of the safety device on the side of the car, commonly called the “grab-iron,” and with his left hand uncoupled the car from the rest of the train. It was the switchman’s custom to always run a short distance beside the car as it was uncoupled so that if there was any slack in the train, the next car to the one that has been uncoupled would not strike the switchman. This the appellee did when he uncoupled the car, but discovered that his hand was caught by his glove on the grab-iron and he could not release himself. He stumbled and was dragged along until his glove was torn loose. He was struck by the next car to the one that he had released and was knocked down and severely injured. After the accident the grab-iron on which his hand had been caught was examined and it was discovered that a piece of number nine fence wire with a hook on the end was wrapped around the grab-iron several times.

The appellee claims that the defendant railroad company was negligent in permitting this wire to be on this safety device and their negligence caused the plaintiff to be injured.

It is the appellant’s contention that the judgment should be reversed for the following reasons: (1) That at the time of the injury the appellee was not engaged in interstate transportation, or work so closely connected therewith as to be substantially a part thereof. (2) That appellant was not guilty of violating the Federal Safety Appliance Act. (3) That appellee assumed the risk of being injured in the manner and by the means disclosed by the record. (4) That the appellee did not prove any negligence on the part of the appellant. (5) That the court erred in not sustaining appellant’s motion for a mistrial because of misconduct of appellee and his counsel during the trial of the case. (6) That appellant should have been permitted to ask appellee whether or not he was willing to submit to a physical examination to determine his condition at the time of the trial. (7) That the court erred in refusing to admit in evidence its Exhibit No. 10, and in admitting evidence of appellee over the objection of the appellant. (8) That the verdict and judgment was excessive and the result of passion and prejudice on the part ,of the jury.

The appellants, in their brief and argument, admit that our Supreme Court in its latest ruling upon the proposition'of permitting a defendant in a personal injury case to ask the plaintiff whether or not he will submit to a physical examination to determine his physical condition, has held it to be improper, but mention it merely for the purpose of saving the point for review. Under the rules of this court the point is waived by the appellant and will not be discussed in this opinion.

The appellants have assigned as error the action of the trial court in sustaining the appellee’s objection to admitting in evidence defendant’s Exhibit No. 10, which is the written application of the appellee for employment in appellant’s service. The copy of the application does not show on its face when it was made, but presumably it was signed in 1920, nine years before the date of the injury to the appellee. The appellant contends that this exhibit was admissible in evidence for the purpose of comparing the handwriting of appellee with other handwriting of the appellee on their exhibits; and also for the purpose of showing that the appellee had knowledge of the dangerous work in which he was employed. If this exhibit had been admitted in evidence we cannot see what advantage it would have been to the jury in deciding the issue of fact in this case.

Complaint is also made of the court’s refusal to admit other evidence offered by the appellants, but it is our opinion the court did not err in refusing to admit Exhibit No. 10, or other evidence complained of by the appellants.

During the trial, Mr. P. J. Stack, claim inspector and adjuster for the appellant, filed an affidavit stating that he had seen a man by the name of Crutcher during a recess of court talking to one of the jurors in the corridor of the courthouse. The affidavit states that he is informed that Mr. Crutcher is an investigator for John E. Cassidy, the attorney for appellee in the case. At the time this affidavit was filed the appellant made a motion to withdraw a juror in the case and for the court to direct a mistrial. Out of the presence and hearing of the jury, Stanley Crutcher, who appears to be the man mentioned in Stack’s affidavit, was called by the appellee and testified that he did not talk to any of the jurors. He said he was talking to another party; that it had nothing whatsoever to do with the case on trial. The court, after hearing the evidence of Mr. Crutcher, overruled the motion to withdraw the juror and for a mistrial.

The appellants have cited several cases sustaining their contention that the court erred in overruling their motion. An examination of these cases discloses that none of them is similar to the affidavit filed in this case. The only thing that appellants claim in this case is that one inspector saw the other inspector talking to one of the jurors. This is absolutely denied by Mr. Crutcher. The cases cited by appellant are those where the successful party in the suit had done something that tended to influence the jury. In the case of Vane v. City of Evanston (150 Ill. 616), cited by the appellants as sustaining their point, the same question arose. The City of Evanston, one of the parties to the suit, had furnished dinner for the entire jury. The appellant claimed that this was reversible error, but the court overruled their contention and in passing on this question say: “The law will not tolerate the slightest suspicion that the successful litigant has corrupted or improperly influenced the jury, or that the jurors have been, directly or indirectly, tampered with, lest justice be subverted and its administration be brought into contempt. It does not, however, follow, that customary offices of civility, and ordinary hospitality or courtesy, extended by the successful litigant, when not designed or calculated to influence the juror or jurors in their consideration of the case, and which are devoid of suspicion, will afford sufficient ground for setting the verdict aside and awarding a new trial.”

Before the court will be justified in ordering a juror withdrawn and directing a mistrial,. there must be some evidence other than mere suspicion that somebody has tampered with the jury. The trial court in this case had an opportunity to observe both Mr. Stack and Mr. Crutcher and he was in a better position than the reviewing court to say which of these parties appeared to be telling the truth. It is our opinion that there was no error committed in overruling appellant’s motion for a mistrial.

This case was tried upon the theory that at the time appellee" was injured he was engaged in interstate comúierce. The burden of proof that he was so engaged is upon the appellee. The evidence shows that the cut of cars upon which the appellee was working contained cars which had been shipped from other States. One car was being shipped from Peoria to New Jersey. That the appellee was so engaged in interstate commerce at the time of his injury is sustained by the case of Wangerow v. Industrial Board, 286 Ill. 441; Davis v. Dowling, 284 Fed. 670; Jeneary v. Chicago & Interurban Traction Co., 306 Ill. 392; Erie R. Co. v. Winfield, 244 U. S. 170, and New York C. & H. R. R. Co. v. Carr, 238 U. S. 260. It is our opinion that at the time of the accident the appellee was engaged in interstate commerce transportation.

The appellant contends that the doctrine of assumed risk applies to the facts in this case and that the appellee, when he accepted employment as a switchman from the defendant railroad company, assumed the risk of being injured as the record discloses he was in this case. No doubt when the appellee accepted work under the appellant company he assumed all of the ordinary risks or dangers normally incident to the occupation in which he voluntarily engaged, so far as those were not attributable to the employer’s negligence ; but he did not assume the extraordinary hazard, or danger, of which he was not aware. In the case of Gila Valley G. & N. Ry. Co. v. Hall, 232 U. S. 94, the court says, “An employee assumes the risk of dangers normally incident to the occupation in which he voluntarily engages, so far as these are not attributable to the employer’s negligence. But the employee' has a right to assume that his employer has exercised proper care with respect to providing a safe place of work, and suitable and safe appliances for the work, and is not to be treated as assuming the risk arising from a defect that is attributable to the employer’s negligence, until the employee becomes aware” of such defect, or unless it is so plainly observable thát he may be presumed to have known of it. Moreover, in order to charge an employee with the assumption of a risk attributable to a defect due to the employer’s negligence it must appear not only that he knew (or is presumed to have known) of the defect, but that he knew it endangered his safety; or else such danger must have been so obvious that an ordinarily prudent person under the circumstances would have appreciated it.” The appellants recognize this to be the law by offering instruction No. 10, which the court gave to the jury. They insist, however, that the appellee by using reasonable diligence could or should have seen the wire on the safety device, or grab-iron, and thus avoided injury to himself.

The evidence discloses that this train was approaching the appellee at the rate of six to eight miles per hour; that he was engaged in a dangerous occupation; that the operation which he was to perform must be done quickly in order to properly perform the work and avoid injury to himself; that he glanced at the grab-iron, not for the purpose of inspecting it to see whether a wire was fastened to it, or if it was safe for him to take hold of, but merely for the purpose of locating the safety device so as to enable him to properly perform his duty of lifting the coupling pin to disconnect the car from the rest of the train. In our opinion the appellee did all that a reasonable and prudent man under the same circumstances would have done, and the jury, by their verdict, properly found that this was an extraordinary hazard, and that the doctrine of assumed risk does not apply to the facts in this case.

Appellant insists that the appellee failed to prove that any negligence of the railway company caused the accident. It further insists that the appellee failed entirely to show that the defendant railroad company had any knowledge, or by the exercise of ordinary care could have had knowledge of the wire being placed upon the safety device upon the car in question. It is undisputed that the wire was on the safety device and was the approximate cause of the injury to the appellee. Inspector Nelson on direct examination testified that he inspected this car on the morning of the injury to the appellee. On cross-examination he admitted that he had no independent recollection of inspecting this particular car, but that it was his duty to inspect all cars; therefore, he inspected this car. He also testified that it was the custom when men were working-on cars at night to hang a blue lantern on the grab-iron on the side of the car. Later on being recalled, he said the custom was to hang such lantern on the grab-iron on the end of the car.

It is also undisputed that this car was marked for “clean out.” The appellants insist that this clearly shows that the car was inspected by Nelson on the morning of the injury to appellee. It is generally known that in shipping stock, straw and manure accumulate in the car and a glance at the car through the door would disclose its condition and whether it needed to be cleaned out. This evidence has little, if any, weight in determining whether Nelson had inspected the grab-iron on this car on the morning of the injury to appellee. The evidence shows that from the time the car was unloaded until the injury to the appellee, the car was in possession of the railroad company. Mr. Sheridan, foreman of the train on which the appellee was working as a part of the train crew at the time of the accident to the appellee, was standing to the west a distance of about 20 feet. After the appellee cut the car loose from the train it was his duty to signal the engineer to stop the train and let the car which had been cut off roll on to its destination. It is argued by the appellee that if Mr. Sheridan had given what is commonly termed “the wash out” signal, that is, the signal for a sudden stop, the engineer could have stopped the train in such a short distance that the car which injured the appellee would not have struck him.

There is a dispute as to how the plaintiff was dragged before he was struck by the car. It is also disputed whether the engineer did stop the train and the slack in it hit the plaintiff, or whether the train came on without being stopped and hit the plaintiff and then stopped. It is our opinion that all of these questions were properly submitted to the jury for their determination. They were properly instructed relative to the law of the case, and they have by their verdict found that the railroad company was guilty of negligence which caused the injury to appellee.

We are of the opinion that the jury were justified in fiudiug a verdict as they did. We are unable to find any evidence which would lead us to believe they were actuated by passion or prejudice in arriving at their verdict.

The appellant claims that the verdict of the jury is. excessive. The evidence shows that appellee is seriously injured and now in such condition that it is necessary for him to wear an iron brace to support his back; that he still requires medical attention; that his kidneys are affected; that he has suffered intense pain; that he has been wearing braces, or been in plaster casts practically all the time since the accident and the probabilities are that he will have to continue wearing a brace of some kind the rest of his life; that for the past nine years his average earning capacity was in excess of $1,800 per year. There is no Way that a jury can accurately estimate the damage in a case of this kind, hut in several cases that have come before this court and the Appellate Court of the First District, judgments for equal or greater amounts have been sustained when the injuries seemed less severe than the one that the appellee has sustained. We are not prepared to say that the verdict is excessive. We find no reversible error in this case and the judgment of the circuit court of Peoria county is hereby affirmed.

Affirmed.


author: Mr. Presiding Justice Hebel

text:
    Anna Seiffe, Defendant in Error, v. Caryl Seiffe, Plaintiff in Error.
    Gen. No. 35,383.

      Opinion filed June 15, 1932.
    John A. Bloomingston, for plaintiff in error.
    Joseph D. Ryan and Louis P. Miller, for defendant in error.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This is an action in trespass on the case for personal injuries, which was instituted by the plaintiff against the defendant, and comes to this court upon a writ of error. There was a trial before the court and a jury, and after a hearing, the jury returned a verdict in the sum of $35,000 against the defendant. The plaintiff entered a remittitur, and thereupon the court overruled a motion for a new trial and entered judgment for $25,000.

■ The declaration consists of three counts. The first count alleges general negligence of the defendant in the operation of the automobile, and the second count that by reason of the wilful and wanton conduct of the defendant in the operation of the car, the plaintiff was injured, and the third count, the operation of an automobile at a high, dangerous and excessive rate of speed.

To this declaration the defendants filed a plea of the general issue and, in addition, a plea of non-operation and control. No question is raised as to the state of the pleadings. All of the defendants named in the declaration were dismissed by the plaintiff except the defendant Caryl Seiffe.

In discussing the objection of the defendant that the verdict was contrary to the evidence, we will also consider in this connection the point made that the preponderance of the evidence both as a matter of law and fact is in favor of the defendant.

There is evidence in the record that in August, 1929, the defendant Caryl Seiffe, with his wife, and the plaintiff Anna Seiffe and her husband Ralph Seiffe, left Kenmore, a suburb of Buffalo, New York, for a vacation trip to Canada in a Packard automobile, driven by the defendant, the ownership of which was in the defendant and his firm. The defendant was married just before the trip, and when the plaintiff learned that it was a honeymoon trip she objected to going, bnt finally consented. The occupants of the car were Ralph Seiffe, the brother of the defendant, and his wife, the plaintiff, who were in the rear seat, and Caryl Seiffe and his wife, who were in the front seat. The party left Kenmore on Thursday, August 15,1929, and traveled to Trenton, Ontario, where the night was spent; then they left the following morning and stopped and spent the night at Ottawa. They continued their journey on the afternoon of Saturday, August 17,1929, to Montreal over the Provincial Highway, and after traveling on this highway for a distance of from 50 to 70 miles, between the towns of Laurival and Alfred, the accident, which is the subject of this suit, occurred.

The car that the defendant was driving was a sedan equipped with four-wheeled brakes, and had been purchased the preceding May. It had been driven approximately 2,600 miles prior to the accident. The roadway in question was a 21-foot macadam highway, and at the point where the accident occurred was a straight highway for a distance of fiv'e or six miles. It was a bright summer day, the sun was shining, the roadway was dry, and the traffic was light. On several occasions during the' previous days of the trip both the plaintiff and her husband had remonstrated with the defendant concerning the speed at which he was driving the car, and the defendant at their request slowed down in speed. The conflict in the evidence is as to how the accident happened. The plaintiff’s evidence tends to show that just before the accident occurred something was said to the defendant by the plaintiff to the effect that he “cut the speed” of the car. “You,” meaning the defendant, “are driving like a cra2iy man,” and in reply the defendant said that he was going 78 miles and wanted to show them 80. The plaintiff then asked the defendant to stop the car and let her out because she would not ride that fast, but he did not do so. About this time a car was observed in the distance coming in their direction, and in a few seconds it passed the defendant’s car, at which time the defendant’s car left the pavement, ran over the dirt shoulder of the road for a distance of 135 feet into the culvert, which at that point extended over the ditch at a height of four feet, crashed the culvert, and landed a distance of about 40 feet from the culvert in the ditch, rolled over, and then came to a stop. There is evidence in the record that the approaching car did not at any time drive over onto defendant’s half of the roadway, and that it did not collide or come in contact with or scrape any part of the defendant’s car. This evidence is . disputed by the defendant, and his testimony as to the occurrence is, in substance, as follows : That he was not driving the car fast; was not swaying or swerving; that he saw the approaching car turn over to his side of the road; that he put on the brakes and slowed the car’s momentum; that when his car was half a block away from the approaching car it was still coming toward his side of the road; that the defendant then got onto the shoulder of the road and at that point the other car was coming right at him; that the wheels of defendant’s car began to slide from the shoulder, and when the defendant was turning onto the hard pavement the other car struck his left front fender, which knocked the defendant’s car back into the ditch and caused the rear wheels of his car to strike said culvert; that he had a choice between being struck by a head-on collision, or being thrown into the ditch, and that he chose the latter course; that thereafter when he again saw his car in Montreal he observed that the left front fender was dented and had yellow paint on it, the color of the car that passed at the time of the accident.

The question of whether the defendant was guilty as charged in the declaration was for the jury. The argument is made by the defendant that the facts do not justify the verdict of the jury. It is the duty of the jury to determine whether the witnesses who appear and testify are interested in the outcome of the litigation, the credibility of their evidence and the reasonableness of the facts as testified to by them, and unless the verdict is against the manifest weight of the evidence, it is not our duty to disturb the verdict. The jury in this case had the advantage of observing the several witnesses, their candor or lack of it, and their demeanor on the witness stand. In other words, we do not have the advantage of having observed the conduct of the several parties in the court room; all we have before us in the consideration of these facts is the printed record. One of the reasons advanced why we should disturb this verdict is that there is not a scintilla of evidence that the speed of the car or whatever it was, had anything to do with the accident. While the jury had the facts and no doubt considered the distance the car was traveling when it swerved from the roadway onto the shoulder of the road into the culvert, and the distance the car landed from this culvert, which was testified to by the witness Arthur' De Haitre, the high constable for the county,, who, from the facts, did not have any interest in the outcome of the litigation, and from the verdict of the jury it would appear that they did not believe defendant’s story that he was forced into the ditch by an oncoming car which collided and struck his fender; nor that said car was responsible for this accident. Then, too, the jury may have considered it strange that this car continued on its journey without any apparent damage, and especially when it is considered that the oncoming car and that of the defendant as testified to by him were moving at a speed of about 40 miles an hour. There is nothing in the record that would justify our interference with the verdict of the jury as being against the manifest weight of the evidence. The evidence offered by the plaintiff, fairly considered, preponderates in favor of her case, and there is no good reason for this court to hold from this record that the preponderance of the evidence favors the defendant’s' side of the lawsuit.

The defendant contends that the general verdict, where there is a wanton and wilful count in the declaration, should be set aside because of the absence of proof of wanton and wilful conduct. It is well to have in mind what is wanton and wilful conduct. The Appellate Court in considering this question held that the rule is that evidence is not necessary to show that the defendant with malice aforethought and with premeditation brought about the injuries. Gross negligence may justify the presumption of wilfulness and wantonness when it is such as to imply a disregard of consequences. It need not be claimed, nor is the plaintiff required to prove that there was a particular intention to injure, but the evidence must show that there was such wilful or wanton recklessness as to authorize the presumption of a total disregard of the rights of others, and the question to be determined by the jury is whether the conduct of defendant amounts to wantonness and wilfulness. Williams v. Kaplan, 242 Ill. App. 166.

In the instant case there is evidence of speed, which the jury took into consideration, that just prior to the accident the defendant, by his own admission, stated that he was driving the car at a rate of 78 miles an hour, and that he wanted to make it 80 miles an hour, notwithstanding the objection of the plaintiff to the rate of speed, and as a result when an approaching automobile was seen coming.from the opposite direction, the defendant, in trying to control the.speed of his car, failed and the accident happened.

This court in considering the question, finds in the record that it was necessary for the plaintiff to object to the speed at which the defendant was driving on other occasions as well as on the occasion of the accident, which would seem to indicate the exercise of care by the plaintiff for her own safety, and fairly tends to prove want of care and a wilful disregard of consequences by the defendant in the operation of the automobile at the place of the accident. The jury having determined that the negligent conduct of the defendant amounted to wantonness, the evidence in the record is sufficient and meets the requirements as to proof and the law laid down in Bremer v. Lake Erie & W. R. Co., 318 Ill. 11. The court in that case said:

“If there is any evidence in the record fairly tending to show such a gross want of care as indicates a willful disregard of consequences or a willingness to inflict injury, then it is a question to be determined by the jury whether the negligent conduct of the defendant amounted to wantonness or willfulness. (Walldren Express Co. v. Krug, 291 Ill. 472.) What degree of negligence the law considers equivalent to a willful or wanton act is as hard to define as negligence itself, and in the nature of things is so dependent upon the particular circumstances of each case as not to be susceptible of general statement. The gross negligence which will justify the presumption of willfulness or wantonness is such as to imply a disregard of consequences or a willingness to inflict injury. (Lake Shore and Michigan Southern Railway Co. v. Bodemer, supra.) An intentional disregard of a known duty necessary to the safety of the person, and an entire absence of care for the life, the person or the property of others, such as exhibits a conscious indifference to consequences, makes a case of constructive or legal willfulness such as charges the person whose duty it was to exercise care with the consequences of a willful injury. (1 Thompson on Negligence, secs. 20, 22.)”

It appears that the defendant complains of the ruling of the court as to the admission and rejection of certain testimony, and of the court’s ruling in permitting plaintiff’s counsel to interrogate the defendant as to previous contradictory statements, on the ground that such questions tended to impeach and discredit the defendant, who was called as a witness by the plaintiff. The rule is that a party having called his adversary to the witness stand he cannot impeach the witness. The reply of the plaintiff to the defendant’s contention is that in the examination of the defendant it was based upon the familiar ground that where a witness unexpectedly gives testimony against the party calling him, such party may specifically interrogate him concerning former contradictory statements, for the purpose of refreshing his memory or awakening his conscience. This witness was called as plaintiff’s witness and his evidence was limited, as announced by the plaintiff’s attorney, to the question of the ownership of the car and its use at the time of the accident. This evidence was made necessary by the pleas of the defendant denying the ownership, operation and use of the car. The defendant was asked his purpose in making the trip to Canada, to which he replied that he was on his honeymoon and that he had no other purpose. Plaintiff’s attorney had in his possession at the time a statement furnished by the defendant, a portion of which is quoted in defendant’s brief and which is diametrically opposed to the statement made by the witness when testifying, and plaintiff’s counsel contends that by being taken by surprise to the unexpected answer, plaintiff was then justified in attempting to refresh the defendant’s recollection, and as authority for his examination of the witness calls attention to the case of People v. Michaels, 335 Ill. 590. The court in that case said: “The rule is, that when a witness unexpectedly gives testimony against the party calling him, such party has the right, to examine him and by such examination show that the witness is giving unexpected testimony, and to specifically call the attention of the witness to former statements made by him for the purpose of refreshing his memory or awakening his conscience and cause him to relent and speak the truth if he was lying.”

The defendant also contends that prejudicial error was committed when testimony was introduced to the effect that on previous days of the trip the plaintiff and her husband objected to the speed at which the defendant was driving, and on such occasions he complied with their wishes and slowed down. It was necessary for the plaintiff to prove under the general negligence count that at and previous to the time of the accident, she was in the exercise of ordinary care for her own safety. The fact necessary to be established upon that question is that the plaintiff called the attention of the defendant to the speed at which he was driving the car, and that the plaintiff fully apprised the defendant of her desire to have him drive at a safe rate of speed. This evidence, therefore, was competent to establish her own care, and also to show wilful and wanton conduct on the part of the defendant and the speed at which he was driving the car, to which we have already referred in this opinion.

We have also considered the objection of the defendant to the evidence admitted by the court of several conversations between the parties and their plans for the trip. We regard this evidence competent to support the allegations in the plaintiff’s declaration that she was an invited guest on this trip.

Complaint is made by the defendant that the court erred in permitting the witness Dr. Charles A. Burk-holder to testify to a 50 per cent loss of vision of the plaintiff’s left eye, and also in permitting an answer of Dr. A. C. Tenney to a hypothetical question. We have carefully considered this evidence and are fully convinced that the court did not err in its ruling. Dr. Burkholder’s evidence is not such as to be prejudicial. He testified as an eye specialist to what he found upon an examination of the plaintiff. The plaintiff had testified that she was unable to distinguish objects on the left side, and as far as we are able to determine from the rec.ord, the doctor’s evidence added nothing to what is already in the record. The form of the hypothetical question is objected to by the defendant. The plaintiff contends that the objection made by the defendant does not point out the reasons for the objection except in one instance, and then the reason brought out was that the question invaded the province of the jury. The reasons should be stated by the objecting party so that the party asking the question may correct the same. The defendant having failed to do so in this respect it is now too late to urge this point. From an examination of this question that was answered by Dr. Tenney, it does not appear to have invaded the province of the jury, and is not such as would prejudice the defendant’s case. There are objections that cross-examination of- the defendant by plaintiff’s counsel was an attempt to get matters before the jury which were not properly admissible. We have examined the questions called to our attention by the defendant and are unable to agree with defendant’s contention, and are satisfied that the ruling of the trial court in this regard was proper.

It is also contended by the defendant that an instruction given for the plaintiff was erroneous in that the court failed to instruct that if wilful and wanton conduct did not proximately contribute to the plaintiff’s injury then such conduct would not excuse the plaintiff from the exercise of due care. The paragraph of the instruction which is complained of is in these words:

“You are further instructed that if you believe from a preponderance of the evidence that the defendant was guilty of wilful and wanton conduct in the management and operation of said automobile, as alleged in said count, then contributory negligence on the part of the plaintiff — even if you should find from the evidence that she was guilty of contributory negligence— is not a defense to this action and does not bar the plaintiff’s right to recover in this case.”

The given instruction offered by the plaintiff defines the issues alleged in the second count of the plaintiff’s declaration, and then follows the paragraph above mentioned. One of the given instructions of the defendant instructs the jury as to the law on contributory negligence to this effect, that if the jury finds the plaintiff was not in the exercise of ordinary care they must find the defendant not guilty, “unless you find the defendant guilty as to the second count of the plaintiff’s declaration.” The defendant in effect, advised the jury that the rule of law is that if the defendant is guilty of the wilful and wanton acts charged in the second count of the declaration then the defendant’s contributory negligence is not a defense.

This court agrees with the defendant’s contention that if the wilful and wanton conduct did not contribute to the plaintiff’s injury, then of course the question is not in the case. But the defendant by his instruction admits, in effect, as we have already indicated, that contributory negligence is not a defense if there is evidence of wanton and wilful conduct, as alleged in the second count of the declaration. The defendant by reference in his instruction to the second count of the declaration is not in a position to complain of the given instruction for the plaintiff. In the case of Kelly v. Chicago City Ry. Co., 283 Ill. 640, the court in commenting upon a similar question said: “Defendant having recognized the negligence charged in the declaration as stating a good cause of action and by its own instruction referred the jury to such declaration for a statement of what the negligence constituting the cause of action in this case consists, cannot now be heard to complain of the instructions for appellee for doing the same thing. Calumet Iron and Steel Co. v. Martin, 115 Ill. 358; Baltimore and Ohio Southwestern Railway Co. v. Then, supra; Brennan v. City of Streator, 256 Ill. 468.”

We have examined the instructions in the instant case and are satisfied that the jury was fully instructed and that there was no error such as would justify a reversal.

The question now to be considered is whether the judgment as entered was excessive, and we find that there is evidence to the effect that the plaintiff who was 37 years of age and previously enjoyed good health, was thrown into a ditch from an automobile. The shock caused her to become profoundly unconscious, in which condition she remained for five or six days. When examined at the hospital shortly after the accident it was ascertained that her skull was fractured, presumably a basal fracture. She had a large lump over her eyes and another over the left side of her head; her teeth were broken. Her lungs were punctured, the air was coming through the pleura. The second rib on the right side was broken in two places, and a three and one-half inch segment dislocated upward. The third, fourth, and fifth ribs were broken in two places with some dislocation. The sixth and seventh ribs were broken. Her left humerus was broken, six inches below the shoulder, with a large fragment displaced. The ninth rib on the left side sustained a comminuted fracture. She had a cut, eight or nine inches long, large enough to contain the hand, in the left axilla, extending down to the lung and laying it open. The dorsal muscle was cut through. She had a cut four inches long near the vulva. She had deep cuts on both legs and on the left hand. She was blind and one arm was paralyzed, at this time. She had bruises everywhere on her body and face. She was bleeding profusely from the back of the septum. Many stitches were taken to draw her wounds together. She was given artificial blood intravenously, her bones were set, and she was given treatment. She could not be moved for the purpose of taking X-rays for four or five weeks. After five or six days she began gradually to regain consciousness. She was given heart stimulants daily. She was immobilized to allow her fractured bones to knit. During all this time she suffered severely, and opiates had to be administered.

After a time she was able to get up. She still had pains in her back and thorax, and severe headaches. She could not see with her left eye; the left side of her face was paralyzed so that she could not move it, and she was in this condition when she left the hospital on November 8 or 9, 12 weeks after the accident.

At the time of the trial she was still under a doctor’s care and was receiving electric treatments, massage, and internal medicine. Her left arm was paralyzed for six months or a year after the accident, and at the time of the trial it swelled so it could not be used. She was still unable to get up or down without assistance because her left knee would give way. The function of this knee was impaired by a floating semilunar cartilage. She was still deaf in the left ear, parts of the left side of her face were numb, and her mouth was still partially paralyzed, and she could not see anything on her left side. Her hospital bill was $620.80. Her nurse’s bill was $490, and her doctors’ bills amounted to $575.

We are of the opinion that the injuries sustained by the plaintiff justified the judgment entered by the court and that there is no such error as would justify a reversal of the case. The judgment is accordingly affirmed.

Judgment affirmed.

Friend and Wilson, JJ., concur.


text:
    William T. Buchli, Appellee, v. H. Wallace Caldwell, Trading as H. Wallace Caldwell & Company et al., Defendants. Appeal of H. Wallace Caldwell, Trading as H. Wallace Caldwell & Company and First Union Trust & Savings Bank, Appellants.
    Gen. No. 35,392.

      Opinion filed June 15, 1932.
    Harry A. Biossat, for appellants.
    David Gr. Robertson, for appellee.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

The complainant filed his bill of complaint wherein it is charged that the complainant entered into a written contract for the purchase of certain lots therein described with the defendant H. Wallace Caldwell, doing business as H. Wallace Caldwell & Company; that the Chicago Title and Trust Company is named in said contract as the trustee holding the title to the real estate described in said contract. The contract further provides that if the complainant shall make the payments and perform the conditions specified in the contract the vendor therein will convey or cause to be conveyed to the complainant said premises in fee simple, clear of all incumbrances except as noted in said contract. The complainant agreed to pay to the vendor at the Union Trust Company, 7 South Dearborn street, Chicago, the sum of $1,530, in the manner following:

$382.50 in cash upon the execution of the contract, and the balance of $1,147.50, payable in monthly instahnents of $30.60 or more each month, on or before March 26, 1926, commencing March 26, 1926, until the 26th day of February, 1929, together with interest at six per cent per annum; and,

To pay all general taxes except taxes levied for the year 1925, and all special taxes, special assessments and all water taxes levied against said property.

The vendor agreed to furnish a guaranty policy of the Chicago Title and Trust Company, showing title to said premises to be clear of all liens except as noted in the contract.

The complainant, having made all the payments contemplated by the contract, requested a deed, frolm Caldwell, and as the defendants failed and neglected to deliver a good and sufficient deed and guaranty policy by the Chicago Title and Trust Company, the complainant prays for a rescission of the contract and for the return of all moneys paid to the defendants.

To this bill the defendants filed a demurrer, which demurrer was overruled by the court. Thereupon the defendants filed an answer and the case being at issue, the court ordered the same referred to a master in chancery. Testimony was taken, and the master made his report recommending that the relief prayed for by the complainant be granted, to which objections were filed and overruled by the master, which objections by order of court were to stand as exceptions to the master’s report. The exceptions, after a hearing, were overruled by the court and a decree was entered granting the relief prayed for in the bill of complaint. In effect the contract dated February 26, 1926, was to be surrendered canceled, rescinded and set aside, and the complainant was to receive from the defendants the amount found to be due by the master, amounting to the sum of $2,890.58, together with interest at the rate of five per cent per annum from May 18, 1930, to the date of the decree.

The defendants contend that the court erred in entering said decree upon the following grounds:

(a) That the complainant had a complete and adequate remedy at law.

(b) That the pendency of the suit of one Claus Peterson against these defendants wherein Claus Peterson claims an interest in the premises described in the bill of complaint did not constitute a lien or incumbrance against the property.

(c) That the complainant waived the strict compliance with the terms of the contract, and is in no position to demand a return of the purchase price paid by him under the terms of the contract.

As to point (a) that the complainant has a complete and adequate remedy at law, the defendants contend that upon the complainant filing suit for breach of contract for failure to deliver the deeds and policies, his measure of damages would be the sums he paid under the terms of the contract, and for the recovery of money only, and that he would have a complete and adequate remedy at law. Upon this question, we find in the record that the defendants filed a general demurrer, which was overruled, and so far as we can determine, the question of an adequate remedy at law was not raised, nor was it saved in the answer of the defendants filed thereafter. The only expression that questions the adequacy of the bill is that the complainant is not entitled to any relief in a court of equity “by reason of any fact set forth in the bill of complaint.” This expression is to the effect that the facts in the bill are not sufficient to warrant relief. The trial court in passing upon the demurrer held that the bill was sufficient in a court of equity to warrant relief, and overruled the demurrer. The Supreme Court in the case of Kaufman v. Wiener, 169 Ill. 596, covers the question before us in these words:

“The question first demanding our attention is whether the general denial of the allegations of the bill, one of which is that the defendants were insolvent, is sufficient to raise the question of the want of jurisdiction, on account of the complainant having an adequate. remedy at law. We think it is not sufficient; but if the appellees desired to insist the cause should not be heard upon its merits and that the complainant should be remitted to a court of law, it was necessary such defense should be affirmatively set out and relied on in the answer. In Stout v. Cook, 41 Ill. 447, it is said ‘such a defense should be insisted upon in the answer. ’ In Ryan v. Duncan, 88 Ill. 144, it is said the objection that there is a perfect remedy at law should be taken ‘by insisting on it as a ground of defense in the answer.’ In Monson v. Bragdon, 159 Ill. 61, the expression of the court is, that the objection there is a complete remedy at law should be interposed either by demurrer or setting out the facts in defense in the answer to the bill. The general rule is: ‘By putting in an answer not insisting upon the fact that the complainant has an adequate remedy at law, he submits himself to the jurisdiction of the court in the case made by the pleading, unless the court is wholly incompetent to grant the. relief sought by the bill.’ ”

In the instant case after the master in chancery had heard witnesses and made his report, then for the first time the defendants objected on the ground that the complainant had an adequate remedy at law. However, this ground was waived by the failure of the defendants to allege it and insist upon it in the answer, and by proceeding to a hearing of the case without objection upon that ground. Kaufman v. Wiener, supra.

Under the second objection (b) the defendants contend that the pendency of the suit of Claus Peterson did not constitute a lien or incumbrance against the property; that the mere existence of a suit by Claus Peterson against the Chicago Title & Trust Co. was not such a lien or incumbrance as might justify the purchaser in refusing to perform; that during the pendency of the hearing before the master, in the instant case, the defendants tendered to the complainant a deed and guaranty policy, in which it is claimed the pendency of the Peterson suit did not appear, but this tender was refused by the complainant. However, it appears that the complainant paid all that was required of him by the contract, and thereafter received a deed and guaranty policy from the Chicago Title & Trust Company,- subject however to the Peterson suit then pending and in which he, Peterson, claimed some interest in the lots described in the contract in question. This deed and policy" were returned on August 10, 1929, by the complainant to the H. Wallace Caldwell Company’s office, for which a receipt was taken from one John Robertson, an agent and bookkeeper of the defendant H. Wallace Caldwell, and the complainant demanded that he be given a guaranty policy and deed conveying clear title to the lots in question. Robertson informed the complainant that the case of Peterson v. Chicago Title and Trust Co., No. 443846 would be soon terminated and complainant’s title made clear, and that other deeds and policies would be given to him. Thereafter the complainant called from time to time to ascertain when the deeds and policies would be delivered and received by him, but each time was put off. He waited until February 6, 1930, a period of several months, and on that date caused a letter to be addressed to the defendants calling attention to the default in making delivery of the deeds and policies to him, and his desire to rescind and make a demand for the return of the moneys paid by him under the terms of the contract. On February 10, 1930, the complainant filed a bill of complaint.

The general rule is that the complainant is not required to receive a defective title, or one that is clouded with adverse liens. His contract justified the complainant’s insistence npon receiving a clear title to the lots. He paid his money and was entitled to a clear and unincumbered title to the lots described in the contract. His title was not made subject to the outcome or disposition of the Peterson claim, or to a blanket special assessment for water mains for $5,263.86 and blanket special assessment for a sewer for $22,905, and his refusal to accept the deeds to the lots so incumbered was fully justified. In default of receiving a good title from the defendants within a reasonable time, complainant had a right to rescind, and to institute legal proceedings to recover payments made under the contract. Harding v. Olson, 177 Ill. 298.

And the defendants under objection (c) contend that the complainant waived strict compliance with the terms of the contract, and was not in a position to proceed with his bill so long as the defendants were proceeding with their defense of the Peterson case in good faith and did, within a reasonable time, clear the title for the complainant. The complainant complied in all respects with the terms of the contract and made payments up to May 15, 1930, amounting to $2,890.58. Thereupon he was entitled to receive the delivery of a sufficient guaranty policy and a deed to the lots described in the contract, clear of all incumbrances except as otherwise provided in the contract.

The guaranty policy of the Chicago Title & Trust Company tendered to said complainant noted the objection appearing upon the face of said policy as follows:.

“Bight, title and interest of Claus Peterson is disclosed by proceedings pending in the Superior Court of Cook County, Illinois, as case No. 443846 on bill filed August 4, 1926, by Claus Peterson against Chicago Title and Trust Company as Trustee and others for partition of the East Half of Southwest Quarter of Section 28 (except East 50 acres),” which policy and deed were returned to the complainant by the said defendants on August 10, 1929. The said Peterson suit subjects the title to this litigation and is a burden not provided for by the contract in question. The complainant at the request of the defendants waited a reasonable time for the delivery to him of a deed and guaranty policy, and was justified in giving a notice of rescission of said contract; and a demand for a return of the full amount paid was made by the complainant.

The defendants made a tender of a warranty deed and guaranty policy issued by the Chicago Title & Trust Company, in which it is claimed by the defendant, no reference was made to the Peterson suit. This tender was made too late when it was presented for the first time upon a hearing of evidence before the master, and the court properly found that the complainant had a right to rescind and terminate said agreement and demand a return of the money paid by him when he instituted suit for such purpose.

Lastly, the defendants make the objection that the decree is erroneous as to the First Union Trust & Savings Bank, in that the court entered a decree for the recovery of the amount therein mentioned against the bank and H. Wallace Caldwell & Co., and it appears in the record that said bank was not a party to the contract; was not liable under its terms, and that the bank received certain moneys only as the agent for the defendant H. Wallace Caldwell & Co. From the record, this defendant made no objection upon that ground, but permitted the case to proceed to a final determination and allowed the decree to be entered without objection. Therefore, it cannot raise this question for the first time on appeal.

We have considered the questions raised by the defendants and find no reversible error. For the reasons herein expressed the decree is affirmed.

Decree affirmed.

Friend and Wilson, JJ., concur.


text:
    Great Lakes Dredge & Dock Company, Appellant, v. City of Chicago, Appellee.
    Gen. No. 35,409.
    Opinion filed June 15, 1932.

      Cooke, Sullivan & Ricks, for appellant; George A. Cooke, Oliver R. Barrett and Edward H. Fiedler, of counsel.
    William H. Sexton, Corporation Counsel, for appellee ; Martin H. Foss and Carl J. Appell, Assistant Corporation Counsel, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This is an action of assumpsit brought by the plaintiff to recover from the defendant the sum of $150,000 for labor and material furnished by the plaintiff to the defendant in the year 1929, in order to complete the work of straightening the south branch of the Chicago River. A jury was waived and the case was tried by the court. Written propositions of law were submitted to the court by the plaintiff and refused. The court found for the defendant and entered a judgment against the plaintiff. From this judgment the plaintiff appeals.

It appears, in substance, from the facts in evidence, that on July 8, 1926, the city council of Chicago adopted the so-called River Straightening Ordinance, which provided for altering and straightening the south branch of the Chicago River between Polk street on the north and West Eighteenth street on the south, and for making certain property adjustments with the railroads and other property owners in the vicinity. Photographs showing the old and the new channel are in evidence. The project was a part of the Burnham plan and its purpose was to permit the opening of new streets in the city, as well as to aid navigation on the river.

The ordinance authorized the commissioner of public works of the city to make any and all contracts necessary for carrying out the improvement and all the work was to be done under his supervision and control.

Pursuant to the authority granted by this ordinance the commissioner of public works entered into the original contract of August 18, 1928, with plaintiff for excavation of the new channel, construction of dock walls, etc., and filling of the old channel. The contract provided for payments to plaintiff for all the work covered thereby at the, unit prices fixed therein.'

The contract was not what is known as a lump sum contract. The total cost of the work depended upon the quantity actually to be required of the several items of labor and material at the unit prices for each item. The estimated cost of the entire project on that basis was about $2,770,000.

The original contract of August 18, 1928, provided for completion of the new channel within 10 working months and “working months” were stated to include the period “between April 15th and November 15th of any calendar year.” Plaintiff proceeded promptly with the work under the contract and by May 28, 1929, had excavated the new channel and had driven sub-' stantially all the round piles for about 5,000 lineal feet of the dock, from the extreme north end of the location of the new channel to the new bridge-crossing of the Baltimore and Ohio Railroad, at which point the dredging of the new channel had been stopped until such time as the contractor should be permitted access by the railroad.

Meanwhile high water in Lake Michigan and the Chicago River had made itself manifest.

By May 1929, plaintiff had completed the driving of the round piles for the 5,000 lineal feet of dock walls. This work could be done notwithstanding the high water level since the piles were driven from on top by equipment resting on the water surface.

Plaintiff attempted at first to fight the high water condition and to continue with the work. It employed divers at a large cost in an attempt to do the work. Before seeking relief from this condition, in the manner provided by the contract, plaintiff expended $20,000 in attempting to cope with the high water condition, and to continue the work. No part of this amount is included in the amount sued for.

On July 2, 1929, plaintiff in response to a request from the commissioner of public works for further information as to the status of the project, wrote to the city in some detail showing that the work up to that time was ahead of the time schedule provided by the contract and more than half the work necessary to open the new channel to navigation had been completed. In this letter plaintiff again discussed the high water condition and the impossibility of continuing the work in the manner required by the contract, referred to the city’s plan for constructing cofferdams and suggested a meeting on July 9 at the site of the work.

On July 18, a conference was held in the office of the commissioner of public works, between the commissioner, Richard W. Wolfe, Lor an D. Gay ton, the city engineer, and John F. Cushing, president of the plaintiff company. The commissioner at first requested that the company do the additional work of cofferdamming without expense to the city, but the company refused to do this work at its own expense.

Mr. Wolfe then asked Mr. Cushing whether plaintiff would agree to construct the cofferdams and flumes at the unit prices fixed in item “0” of the contract but at a maximum cost to the city of $150,000 and Mr. Cushing replied that if Mr. Wolfe would give the plaintiff the order to proceed immediately he would agree to that price. Mr. Wolfe agreed to this, directed Mr. Cushing to proceed immediately with the work, promised to send Mr. Cushing a written order to do the work and instructed the city engineer to prepare such an order for his, Mr. Wolfe’s, signature.

Immediately after the conference of July 18, plaintiff proceeded to assemble the materials and to construct the cofferdams and flumes, thus permitting resumption of the work on the dock walls, including the concrete caps. The dock walls were completed in the latter part of November, 1929.

The cofferdams and flumes formed no part of the structure of the dock walls provided for by .the main contract, but were employed for the purpose of permitting the dock walls to be constructed in accordance with the plans and specifications. After the dock walls, including the concrete caps, etc., had been completed (late in November, 1929) the cofferdams and flumes were removed.

The dock wall portion of the work was completed in the latter part of November, 1929. Plaintiff requested payment for the cofferdams and flumes but Mr. Wolfe replied that, as he understood it, he could not pay the money until he received an order from the city council. Shortly before this suit was started, plaintiff again requested payment for the work and stated that unless it was paid, suit would be started, to which Mr. Wolfe replied that he did not see how he could pay the $150,000 and that he would not blame plaintiff for starting suit. Plaintiff has not been paid any part of the cost of this work.

It is suggested by the plaintiff that the general contract did not require the plaintiff to construct cofferdams and flumes at its own expense. The contract is not for a fixed amount, but provides that the amount of money to be paid by the City of Chicago depends upon the quantity of work performed, and this quantity is to be multiplied by a unit price, and constitutes' the price for the item. The plaintiff company did perform all the work required by certain items designated A to N, and received pay therefor. In none of the items A to N was there a provision for the construction of cofferdams or flumes. However, the contract specifically provides that the plaintiff was not to receive payment for extra or additional work or materials furnished at additional expense, unless the additional outlay be specifically authorized by the city council of the City of Chicago, and ordered in writing signed by the commissioner of public works. This provision is a part of the contract and expressly limits the power of the commissioner of public works to act. The provision of the contract applicable to the question is as follows:

“The right is reserved to the City of Chicago, through its commissioner of public works, to make alterations in the plans or specifications for the work included herein. Should it become proper or necessary, however, in the execution of the work, to make any alterations which will increase the expense, said commissioner of public works shall report to the city council the nature of such alterations and his estimate of the amount by which the expense to the city should be thereby increased. The amount by which the contract price shall be increased in consequence of such alterations shall be determined by the city council.

“It is expressly understood and agreed that no payment shall be made to said party of the first part for any extra work or material or of any greater amount of money than is herein stipulated to be paid, unless some changes in or additions to the contract requiring additional outlay by said party of the first part shall first have been expressly authorized by the city council of the City of Chicago and ordered in writing by said commissioner of public works.”

This request for extra work and the additional cost was not presented to the city council, and therefore was not expressly authorized. The plaintiff attempted to obtain a written order from the commissioner of public works as authority to do the work, but the commissioner refused to give this written order. The parties in the instant case are each bound by the terms of the contract, and are chargeable with the knowledge of its provisions. The commissioner of public works is but the agent of the defendant and the agent’s authority is limited by the terms of the contract between the plaintiff and the defendant. This agent cannot waive the provisions of the contract that apply when extra and additional work is to be performed and for which money is to be paid by the defendant, any more than this agent could relieve the plaintiff from its obligation under the terms of the contract, and especially where the defendant is without fault.

The plaintiff contends that the verbal order of the commissioner directing the plaintiff to do thé work at the city’s expense was sufficient; that a written order was not required if the commissioner of public works had authority to direct the plaintiff to do the work and to bind the city to pay for it, and, in any event, the city has ratified and approved the commissioner’s act by the acceptance of the benefits, and therefore is estopped from asserting that the commissioner lacked authority to bind the city.

From the statement of the facts hereinbefore mentioned, the commissioner directed the plaintiff to construct the cofferdams and flumes, for which he was to give a written order, but after the order had been prepared a question was raised by a member of the corporation counsel force as to the commissioner’s authority, who advised that the order should be presented to the city council of the City of Chicago for allowance.

The principal ground urged by the plaintiff for the construction of the cofferdams and flumes is that by reason of the high water making it impossible to complete the work it was necessary to build these temporary structures to hold the water back from the area in which the dock walls were to be built. Another ground urged is that it was never contemplated by the parties at the time of the signing of the contract that the water in the river would rise to a height which would make it difficult to do the work. The plaintiff, no doubt, was familiar with the river conditions and that the height of the water would make it difficult to work. Therefore, if extra work was likely to become necessary because of this condition,, the plaintiff should have provided for such contingency in the contract.

In the instant ease there was no impossibility of performance of the work by the plaintiff. That is self-evident from the fact that the work was completed after the construction of the cofferdams and flumes. This extra construction to control the water worked a hardship in that the extra cost of the work had to be borne by the plaintiff. Still under the facts and the terms of the contract, there is no liability on the part of the defendant to pay for this extra work. The general rule which applies in the instant case is that if a contractor meets with difficulty of performance, nevertheless that would not relieve the contractor from the contract, nor justify the contractor in demanding more pay because of the difficulty. Day v. United States, 245 U. S. 159; Ptacek v. Pisa, 231 Ill. 522; Carnegie Steel Co. v. United States, 240 U. S. 156, 164; Globe Refining Co. v. Landa Cotton Oil Co., 190 U. S. 540, 543; United States v. Gleason, 175 U. S. 588.

The plaintiff contends that it asked for and was entitled to an extension of time within which to complete its work because of water conditions of the river, and in order that the plaintiff might perform and that through negotiations with the commissioner of public works the plaintiff proceeded to do the extra work at a price of $150,000 and save the city $400,000 in interest charges that would accumulate on the bonds of the defendant if the work had been delayed. However, the question of an extension of time within which to complete the work is not material upon the facts in the record. The question is, Was this extra work authorized by the city council of the City of Chicago?

The remaining question to be considered is, did the City of Chicago ratify and approve the act of the commissioner by accepting the benefits, and is therefore estopped to deny his authority? The record justifies the assumption that the defendant, the City of Chicago, accepted work of a permanent character called for in the contract betwen the parties, which was paid for, and it must be conceded that the cofferdams and flumes were but temporary structures constructed and installed to expedite the work required to be performed by the plaintiff under its contract. As heretofore stated in this opinion, the high water in the river was a difficulty encountered by the plaintiff in the performance of the work, and the expense in the construction and installation of the cofferdams and flumes, in order to do this work, must be borne by the plaintiff. The defendant is not chargeable with conduct such as could be construed as an acceptance of a temporary structure used by the plaintiff in its performance of the work and removed by it upon completion of the work.

This court has considered the propositions of law refused by the trial court, and finds generally that the propositions are in direct conflict with the conclusions reached by us, and therefore were properly refused by the trial court.

There being no error in the record such as would warrant a reversal, the judgment of the trial court is affirmed.

Judgment affirmed.

Friend and Wilson, JJ., concur.


text:
    Motor Power Equipment Company, Appellee, v. Mercantile Discount Corporation, Appellant.
    Gen. No. 35,438.
    Opinion filed June 15, 1932.
    Samuel Simon, for appellant; Ben Aronin and Ely B. Harelik, of counsel.
    Chapman & Cutler, for appellee; Charles M. Thomson and George H. Jirgal, of counsel.
   Mr. Presiding Justice Hebel

delivered the opinion of the court.

This is an appeal from a judgment for $1,395, entered in the circuit court of Cook county against the defendant and in favor of the plaintiff. Judgment was entered after the defendant had defaulted for want of an affidavit of merits.

The plaintiff’s declaration is in assumpsit, consisting óf a special count and the common counts. The special count is, in part, that on or about November 1, 1930, the plaintiff purchased certain machinery and equipment from the Kunkel Manufacturing Company, and in payment gave its trade acceptance in the amount of $1,350, due on November 10, 1930, which trade acceptance was assigned to the Commercial Credit Trust Company, the plaintiff receiving notice of the assignment.

. The plaintiff further alleges that on November 9, 1930, the plaintiff, in order to satisfy said trade acceptance, executed its check in the amount of $1,350, said check being made payable to the order of Kunkel Manufacturing Company. It is further alleged that this check, together with a memorandum that the check was in payment of said trade acceptance, was by mistake or inadvertence inclosed in an envelope addressed to the defendant, the Mercantile Discount Corporation, and that in due course of the mails said check and memorandum were received by the defendant. The plaintiff further alleges that the defendant was not the owner or holder of said trade acceptance and that it had knowledge that the plaintiff’s check was intended to be used in satisfying its obligation on said trade acceptance; that the defendant wrongfully indorsed the check and deposited it in its bank account and that it was presented paid, and was charged to the account of the plaintiff. The plaintiff made a demand upon the defendant to return this sum of $1,350.

To the declaration a copy of the account sued on was attached and an affidavit of claim. The affidavit of claim set forth substantially the same facts as alleged in the special count of the declaration.

To this declaration the defendant filed a general demurrer to the special count, a plea of the general issue to the common counts, and an affidavit of merits. The demurrer to the declaration was overruled, and thereafter, upon motion of the defendant, an order was entered allowing the defendant’s plea of the general issue to the common counts and its affidavit of merits to stand as the defendant’s plea and affidavit of merits to the entire declaration.

The affidavit of merits was, upon motion of the plaintiff, stricken from the files, and subsequently an amended affidavit of merits was filed by the defendant, and upon motion of the plaintiff was stricken from the files, and upon leave of court, the defendant filed its third amended affidavit of merits. This last affidavit of merits admits that the defendant received the check executed by the plaintiff; that it received it in an envelope addressed to the defendant, but denies that the check was inclosed in the envelope through inadvertence and mistake. The defendant further states that the check was made payable to the order of the Kunkel Manufacturing Company and was “duly indorsed by the duly authorized agent of Kunkel Manufacturing Company for that purpose and deposited to the account of” the defendant. The affidavit denies “that said check was wrongfully indorsed as is alleged in plaintiff’s declaration”; that the Kunkel Manufacturing Company, the payee of the check, was indebted to the defendant in the sum of $12,782.58, and that after crediting the amount of the check on the indebtedness due the defendant, there remained due and owing to the defendant from the Kunkel Manufacturing Company the sum of $11,432.58.

The question properly before the court is whether or not the defendant’s third amended affidavit of merits is sufficient and if the trial court erred in striking this affidavit from the record.

The defendant contends that an affidavit of merits which specifies the nature of the defense relied upon so that the plaintiff has reasonable notice what the defense is and which states directly and positively facts sufficient to disclose a substantial defense, is sufficient; that the affidavit of merits filed in the instant case admits receipt of the check; denies that it was sent to the defendant through inadvertence or mistake; denies that the defendant wrongfully indorsed the check; states that the check was indorsed by the payee named in this check, and discloses a complete defense to the plaintiffs declaration and affidavit of claim.

The plaintiff replies to this contention, in effect, that the defendant’s affidavit of merits does not deny either directly or indirectly that it, the defendant, had knowledge that the check was to be applied in payment of the trade acceptance held by the Commercial Trust Company, but attempts to establish defendant’s right to the check and the proceeds thereof by averring that the check was indorsed by the agent of the payee named therein. The defendant does not seem to question the rulé that an action for money had and received may be maintained wherever one has money in his hands belonging to another which in equity and good conscience he ought not to retain. The important element mentioned in the plaintiff’s declaration is that this check, together with a memorandum that the check was in payment of the trade acceptance, was by mistake or inadvertence inclosed in an envelope addressed to the defendant, and that it had knowledge that the check was to be used in satisfying the plaintiff’s obligation. These facts should have been answered by the defendant in his affidavit of merits. It surely could not be contended by the defendant that having such knowledge of the purpose and the application to be made of the check, or its proceeds, the defendant nevertheless could apply the proceeds as it did.

As a stranger to this transaction the defendant acquired no right or title to the check or the money. The fact that no privity of contract exists between the plaintiff and the defendant does not bar an action for the moneys in the defendant’s hands. The fact that it was received from a third person will not affect defendant’s liability if in equity and good conscience the defendant is not entitled to hold it against the plaintiff. The Supreme Court has applied a rule to a somewhat similar situation, which we believe is controlling in the instant case, in First Nat. Bank of Springfield v. Gatton, 172 Ill. 625. The court there said:

“It is also claimed that the court erred in refusing one of the appellant’s instructions. This instruction in substance directed the jury that if they found, from the evidence, that the commission merchant sent the draft to defendant with instructions to apply it to the credit of J. N. Gatton, and that Gatton was indebted to defendant, and defendant applied the draft as instructed, then defendant was not liable. It is manifest that this instruction was properly refused. If the commission merchant had no authority to transmit the draft to the defendant, and it was sent by mistake, the defendant acquired no right or title to the draft or the money. The mere fact that defendant received the draft and applied it to the debt of J. N. Gatton gave it no right to hold the money from the person to whom the jury and Appellate Court found it rightfully belonged.”

The defendant states that assuming it had notice of the fact that the Kunkel Manufacturing Company was to apply this check in a certain way, yet it was not the duty of the defendant to require the Kunkel Manufacturing Company to apply this check in that manner. If this company chose to indorse and deliver the check to the defendant to apply on its, the defendant’s account, the defendant had the right to accept that payment.

Not with the knowledge to which we have referred could the defendant acquire title to the check or the money it represents, and in equity and good conscience the defendant should not retain the check or money of the plaintiff, the true owner.

Having reached the foregoing conclusions upon the questions raised and finding no error sufficient to justify a reversal, the judgment is affirmed.

Judgment affirmed.

Friend and Wilson, JJ., concur.