text:
    Monarch Refrigerating Company of Chicago, Appellant, v. City of Chicago, Appellee.
    Gen. No. 43,598.

      Opinion filed April 24, 1946.
    Rehearing denied May 10, 1946.
    Released for publication May 10, 1946.
    Urion, Bishop & Sladkey, of Chicago, for appellant; Howard F. Bishop and George P. Novak, both of Chicago, of counsel.
    Barnet Hodes, Corporation Counsel, for appellee; J. Herzl Segal, Head of Appeals and Review Division, John J. Mortimer and L. Louis Karton, Assistant Corporation Counsel, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

A complaint filed in the superior court of Cook county on May 29, 1936 by Monarch Refrigerating Company of Chicago against the City of Chicago, contained two counts, the first of which alleged that plaintiff was a corporation engaged in the cold storage warehouse business; that during the construction of the Wabash avenue bridge and viaduct, it operated 16 buildings in the vicinity of the structure; that the buildings were adapted for use in conformity with the normal established grades of the surrounding streets, sidewalks and alleys adjacent thereto; that prior to the construction of the viaduct there was free and easy access to and from the premises and the highways, sidewalks, streets and alleys; that the building of the viaduct interfered with the former open and free access plaintiff had to other sections of the city; that the change in the grade of the adjacent streets, sidewalks and alleys deprived plaintiff of the beneficial use of its various loading platforms, docks, etc.; that a considerable portion of its damage arose out of the. fact that in order to provide sufficient clearance over various railroad tracks in the neighborhood, the approach to the bridge was constructed so as to begin at a point much farther away from the bridge than was originally planned; that the construction of huge caissons for the support of the viaduct, in front of and adjacent to plaintiff’s buildings, further interfered with the ingress and egress from and to the premises; that plaintiff owned the fee to the streets adjoining the properties; that the construction of the viaduct constituted an additional servitude thereon; that the construction of the viaduct necessitated structural changes in all of the building’s due to loss 'of and interference with loading facilities and likewise destroyed its switchtrack; and that no part of the damage complained of was due to the lack of exercise of ordinary care on its part. In the second count it, was alleged that the foregoing damage was caused by negligence in the construction of the viaduct by the defendant. Both counts prayed for judgment in the sum of $200,000.

Defendant filed a motion to dismiss on the ground that the action was barred by the five year Statute of Limitations, with an affidavit attached by John M. McCarthy, an assistant corporation counsel, stating that he was acquainted with the facts “by investigation”; that the public work mentioned in the complaint was begun on November 17, 1930; that the excavation work for the changing of the highways was completed on January 10, 1931; and that the “streets in question” were paved and open to traffic on April 29, 1931. Plaintiff thereupon filed a counter affidavit of George P. Novak, an attorney associated with its counsel, in which he states that he examined the official records of defendant; that in the 56th annual report of the Department of Public Works for the year ending December 31, 1931 appears the following: “Wabash Avenue Bridge, Viaduct, North Approach and Street Adjustments. The steel adjustment work was fully completed June 22, 1931, with the placing of the pavement in Kinzie Street. . . . The ‘Gunite’ work was resumed March 23rd and all work on the viaduct was completed June 15, 1931. Wabash Avenue Bascule Bridge. Work completed on North Approach and Street Adjustments June 22, 1931; Improvement completed June 22, 1931.” Affiant further deposed that in the 57th annual report of the Department of Public Works for the year ending December 31, 1932, the following official entries appear: “Division of Bridges and Viaducts — Investigating Section — Special Work: Assistance was rendered the Corporation Counsel’s office in the matter relating to the acquisition of property located at the northwest corner of Kinzie Street and North Wabash Avenue, required for the purpose of finishing the new Wabash Avenue Viaduct to its full width. North Wabash Avenue Bridge and Viaduct Improvement: An ordinance was prepared covering the acquisition of property located at the northwest corner of Kinzie Street and Wabash Avenue to permit the completion of this viaduct to its full width, and other negotiations were carried on relating to this matter.” Affiant further states that in the 58th annual report of the Department of Public Works for the year ending December 31,1933 appears the following: “Bureau of Engineering — Division of Bridges and Viaduct — Construction Section. Wabash Avenue Viaduct: At the time the Wabash Avenue Viaduct was constructed, the building at the northwest corner of Kinzie Street and Wabash Avenue interfered with the completion of the sidewalk at this corner. The corner of the building was cut away by the owner. The sidewalk was completed June 15th by the Construction Division Day Labor forces. Investigating section: North Wabash Avenue Bridge, and Viaduct Improvement: Negotiations covering the purchase of property located at the northwest corner of Kinzie Street and Wabash Avenue to permit the completion of this viaduct to its full width were consummated.”

This counter affidavit further sets forth that the council proceedings of defendant show that at a regular meeting held on June 1, 1932, the following communication addressed to the mayor and city council, dated May 14, 1932, was submitted by the Commissioner of Public Works:

“Herewith copies in duplicate of an ordinance, together with a letter of approval by the Corporation Counsel, providing for the acquisition of a part of land located at the northwest corner of North Wabash Avenue and East Kinzie Street, required to permit the completion of the North Approach Viaduct of the said North Wabash Avenue Bridge and to eliminate a dangerous traffic condition. This ordinance is transmitted with the recommendation that it be passed.”

This affidavit further stated that the official record showed that at the meeting of June 1, 1932, an ordinance was adopted providing for the acquisition of the property referred to in the foregoing communication, the pertinent part of which ordinance reads:

“Whereas, The City of Chicago as a necessary part of said improvement, requires the fee to sufficient land and premises located at the northwest corner of North Wabash Avenue and East Kinzie Street now belonging to the said trustees of the estate of Michael Espert, deceased, to permit the completion of the north approach of said North Wabash Avenue bridge; . . . ."

The concluding paragraph of this affidavit reads:

“Affiant therefore states that according to the official records of the defendant aforesaid, the public improvement known as the North Wabash Avenue Bridge and Viaduct, the construction of which caused the damage complained of in the above cause, was not completed within five years of the filing of the complaint herein on May 29, 1936, and that the statutory limitation period does not bar plaintiff’s cause of action herein.”

Defendant thereupon was given leave to file two additional affidavits in support of its motion to dismiss and plaintiff obtained leave to file an additional counter affidavit. Defendant’s first additional affidavit, by Abe Cohn, stated that from August 1926 to November 1932 he was in the employ of the Department of Bridges of defendant; that his duties included the inspection of work for the purpose of making a daily report of the progress thereon during the time of the construction and completion of the Wabash Avenue Bridge and Viaduct Improvement; that he knows of his own knowledge that the regrading and resurfacing of East Kinzie, East Austin, North Rush, East North Water street, Rush street and North Wabash avenue was completed and the streets open to traffic on April 29, 1931. Defendant’s second additional affidavit by Stephen J. Michuda states that he is Engineer of Bridges, in charge of the Division of Bridges and Viaducts of the Department of Public Works of defendant; that in this capacity he has under his supervision and control the daily progress reports of the work in connection with the construction” of the Wabash avenue bridge and approaches thereto; that the caissons supporting the approaches to the bridge in the vicinity of E. Kinzie street, E. Austin avenue, N. Rush street, E. North Water street and E. Illinois street were installed and completed on or before September 30, 1930; and that the Wabash avenue bridge and viaduct and approaches thereto were completed and open to public traffic on December 20, 1930. The last affidavit filed was plaintiff’s second counter affidavit by Elmer Clausen, who stated that he is an engineer and surveyor; that he has been such for more than 35 years; that he has devoted himself exclusively to the practice of his profession, which included the examination of most of the important public works constructed in the City of Chicago and adjacent territory during that period; that during the construction of the Wabash avenue bridge and approach, he represented a number of property owners adjacent thereto “for the particular purpose, among others, of observing the effect upon these properties of the construction of the approach, including the digging of caissons in order to advise these property owners of the various steps to be taken by them in their best interests and looking after their properties during the construction work and in ascertaining the amount of settlement”; that during the period from 1930 to the end of 1933 he spent most of his time in this immediate neighborhood, particularly from Grand avenue south to the Chicago river, during which time he observed the progress of the construction of the Wabash avenue approach north of the Chicago river; that it was “after July 1, 1933 the aforesaid approach was completed,” and that it was “after July 1, 1933 work was being done by the City of Chicago in completing- the upper level and the lower level of the approach as well as the matter of columns, railings, pavements and other parts of the structure”; and that said work was being done on and after July 1, 1933 in front of and adjacent to the buildings described in plaintiff’s complaint. Under this state of the record the court sustained defendant’s motion to dismiss on the ground that the five year Statute of Limitations had run against plaintiff’s claim, and entered judgment accordingly. Plaintiff appealed.

Plaintiff maintains that there is nothing in the record to support the judgment entered on the theory that the Statute of Limitations had run against its cause of action, and that according to the official published proceedings of the Department of Public Works and of the City Council, land was being acquired and work was being done on the viaduct during the years 1932 and 1933, and that the Statute of Limitations could not have started to run against its claim on May 29, 1931. Defendant insists that the trial court properly sustained its motion on the ground that the plaintiff did not institute its action within five years from the date when its cause of action accrued.

Section 15 of the Statute of Limitations (par. 15, ch. 83, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 107.275]) provides that actions to recover damages for an injury done to property, real or pergonal, and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued. Section 48 of the Civil Practice Act (par. 172, ch. 110, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 104.048]) provides that a defendant may move to dismiss the action on the ground that it did not accrue within the time limited by law for the commencement of such action, and support such motion by affidavits where the defect does not appear on the face of the complaint. This section provides further that if the opposite - party shall present affidavits or other proof denying the facts alleged or establishing facts obviating the objection, the court may hear and determine the same and may grant or deny the motion, but if disputed questions of fact are involved, the court may deny the motion without prejudice and shall deny it if the action is one at law and the opposite party demands that the issue be submitted to a jury. The record does not indicate whether plaintiff demanded a trial by jury. However, we are of the opinion that if the affidavits supporting the motion and the countervailing affidavit presented a factual issue, that issue would necessarily have to be submitted to the trier of the facts, whether a jury or the court without a jury.

The criticism leveled by plaintiff at the affidavit made by the assistant corporation counsel that he is acquainted with the facts by investigation, is meritorious. He does not claim to have been in the vicinity during the time of the construction of the project, or at the time it was completed, nor does he state what “his investigation” of the facts consisted of. The affidavits filed by plaintiff nowhere denied the statements in the affidavits submitted by defendant that the Wabash avenue bridge, viaduct, approaches and street grade changes were made prior to April 29, 1931, and that the streets in question were paved and open to traffic on April 29, 1931. Paragraph 8 of each count of the complaint alleges that the defendant completed the improvement on or about the first of June 1931. The affidavit of Elmer Clausen, filed by plaintiff, states that the approach was completed after July 1,1933, and that after July 1,1933 “work” was being done by the city in “completing the upper level and the lower level of the approach, as well as the matter of columns, railings, pavements and other parts of the structure.” The reports of the Department of Public Works for the year ending December 31, 1931, December 31,1932 and December 31, 1933 show that the city was still performing certain work on the improvement. The records of this department and the ordinance of July 1, 1932 also show that in 1932 the city was acquiring land at the northwest corner of North Wabash avenue and East Kinzie street to complete the viaduct “to its full width” and “to eliminate a dangerous traffic condition.”

From a reading of all the affidavits it becomes apparent that the Wabash avenue bridge, viaduct, approaches and streets whose grades were changed, were paved and open to traffic on April 29, 1931. Plaintiff was aware of the fact that the improvement damaged its property as soon as the grades were changed in the streets and they were paved and open to traffic. By April 29, 1931 plaintiff, by its agents and officers, knew or could ascertain whether it was damaged by interference with the former open and free access to other sections of the city, by the change in the grade of the adjacent streets, sidewalks and alleys, by being deprived of the beneficial use of its various loading platforms and docks, by interference with the ingress and egress by the Construction of huge caissons for the support of the viaduct, by necessary structural changes in its buildings, due to loss and interference with loading facilities, and by destruction of its switchtrack facilities. Even though the improvement was not entirely completed, plaintiff’s cause of action accrued on April 29, 1931.

We have read the cases cited by the parties. Cases arising under the Mechanics Lien Act are not in point for the reason that that Act requires the suit or lien to be filed within a certain time after completion, or if extra or additional work is done or material is delivered therefor, within a certain time after the completion of such work or additional work, or the delivery of such extra or additional material. Our view is that the law applicable to the case at bar is stated by our Supreme Court in Schlosser v. Sanitary District of Chicago, 299 Ill. 77, where plaintiff recovered a judgment because of the alleged permanent injury to his land because of the operation and construction of the sanitary district channel. The suit was begun on January 30, 1905. In reversing the judgment and remanding the cause, the court said (83):

“The parties by their pleadings in this case have raised the issue of the limitation of the action, not with reference to the time when the work was completed and put in operation but with reference to the time when the appellee’s land was actually invaded by the waters of the district. It is not material that the water did not at once render the land useless. If the flow of water in the river was increased, the cause of action was complete, as we have held, when the work was complete and put in operation. The limitation under the pleadings in this case, however, began to run when the increased flow of water reached the appellee’s land, and he was bound to sue within five years of that time, not only for all the damages which he had sustained but for all which he would sustain thereafter or be barred from maintaining any action. .... The cause of action which accrued by reason of the construction and operation of the work was not affected by the fact that the full amount of the damage which would be sustained did not accrue or was not apparent immediately. The court instructed the jury that if it appears by a preponderance of the evidence that prior to January 30, 1900, any water from the Illinois river invaded any portion of the appellee’s land that it would not have invaded had not the sanitary district turned its flow into the Illinois river, the damages to the entire land described in the appellee’s declaration occurred on the date when such invasion took place, and in that state of the proof the plaintiff cannot recover. This instruction was more favorable to the plaintiff than he was entitled to. The evidence showed, without contradiction, that water from the Illinois river did invade the plaintiff’s land which would not have been invaded had the sanitary district not turned its flow into the Illinois river, and the court should have instructed the jury to find a verdict for the defendant.”

In Chicago North Shore St. Ry. Co. v. Payne, 192 Ill. 239, the court said (247):

"Where the suit is not for negligent or improper construction or operation, and is for damages accruing from a construction of a permanent character, all damages, in law, accrue when the cause of the injury is created, and the recovery must be for the whole damage, of which depreciation in market value is the measure. ’ ’

Plaintiff could have brought its action on April 29, 1931. At that time the damage to plaintiff’s property was evident and ascertainable. The grades of the streets had been changed and the street, viaduct and approaches were paved and open to traffic. We are satisfied that plaintiff’s action was barred by the five year limitation and that the court was right in sustaining defendant’s motion and entering judgment against plaintiff.

Therefore, the judgment of the superior court of Cook County is affirmed.

Judgment affirmed.

Kiley, P. J., and Lewe, J., concur.


source: Caselaw Access Project

author: Mr. Justice Burke

license: Public Domain

text:
    Elizabeth Lakowski, Appellee, v. Raymond Kustohs, Appellant.
    Gen. No. 43,612.

      Opinion filed April 24, 1946.
    Released for publication May 10, 1946.
    James A. Mahoney, of Chicago, for appellant.
    Dankowski & Dankowski, of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

Elizabeth Lakowski filed a statement of claim in the municipal court of Chicago for possession of the four room second floor apartment at 3943 Cornelia avenue in Chicago. A trial before the court without a jury-resulted in a finding and judgment that plaintiff was entitled to possession of the premises and that a writ of restitution issue. Defendant appealed.

The first criticism leveled at the judgment is that the statement of claim fails to state a cause of action. The record shows that before any testimony was given, defendant moved to strike the statement of claim on the ground that it did not state a cause of action. Defendant did not specify the defect complained of. After discussion, the court permitted plaintiff to amend the statement of claim on its face, whereupon the motion to strike was withdrawn. Defendant did not thereafter renew his motion to strike. Par. 3 of sec. 42 of the Civil Practice Act [Ill. Rev. Stat. 1945, ch. 110, par. 166, subpar. (3); Jones Ill. Stats. Ann. 104.042, subpar. (3)] provides that all defects in pleadings, either in form or substance, not objected to in the trial court, shall be deemed to be waived. As defendant did not object to the amended statement of claim in the trial court, he cannot do so now.

Defendant went into possession of the premises under a lease dated April 11, 1942 between “Helen Lakowski, as Agent for the Owners,” and defendant, for a term commencing May 1, 1942 and expiring April 30, 1943. On February 26, 1943 plaintiff gave written notice to defendant that- upon the expiration of the lease his tenancy would be from month to month, should he desire to remain. The lease called for the payment of a monthly rental of $40. In March 1943 this rental was reduced by the OPA to $37.50 and in July 1945 to $34.50. It is clear that the landlord did not intend that the lease should continue on a year to year basis. On and after May 1, 1943 defendant held over on a tenancy from month to month, subject, however, to the operation of the Rent Control Regulation of the OPA.

Defendant urges that plaintiff did not establish any right to possession under sec. 6 (a) (6) of the Rent Regulation for Housing, which provides that so long as the tenant continues to pay the rent to which the landlord is entitled, no tenant shall be removed from any housing accommodations by action to evict or to recover possession by exclusion from possession, or otherwise, notwithstanding that such tenant has no lease, or that his lease or other rental agreement has expired or otherwise terminated, and regardless of any contract, lease, agreement or obligation heretofore or hereafter entered into which provides for entry of judgment upon the tenant’s confession for breach of the covenants thereof, or which otherwise provides contrary “hereto,” unless the landlord owned or acquired the right to, possession of the housing accommodations prior to October 20, 1942, and has an immediate compelling necessity to recover possession of such accommodations for use and occupancy as a dwelling for himself, or has served during the period of the war emergency in the armed forces of the United States and in good faith seeks possession.

The building in which the apartment occupied by defendant is located, consists of six apartments. Plaintiff testified that she and her husband were the owners of the property; that her husband, due to poor health, “has lost his work”; that she and her husband “needed to move into this property so that he could replace the janitor there and reduce expenses to make up for his lost income from wages”; that her husband suffers from arthritis; that he is partially crippled by it; that “they have been the full owners of the property since 1940, and owned it jointly with a partner since 1926.” Plaintiff testified that defendant paid his rent every month. Plaintiff’s husband testified that he was “crippled with arthritis” and unable to work “at his previous employment;” that his daughter Helen signed the lease and that “he purchased the property in 1926.”

Previous to September 15, 1945 sec. 6 (a) and 6 (6) provided that so long as a tenant continued to pay the rent to which the landlord was entitled, no tenant shall be removed from any housing accommodations by action to recover possession, unless the landlord owned the housing accommodations prior to October 20, 1942 “and seeks in good faith to recover possession of such housing accommodations for immediate use and occupancy as a dwelling for himself. ’ ’ The amendment to sec. 6 (a) (6), effective September 15, 1945, requires that the landlord prove that he owned the housing accommodations prior to October 20, 1942, and that he has “an immediate compelling necessity to recover possession of such accommodations for use and occupancy as a dwelling for himself, or has served during the period of the war emergency " in the Armed Forces of the United States, and in good faith seeks possession for his own occupancy.” Previous to the amendment the landlord was required to prove ownership or right to possession prior to October 20, 1942 and that he sought in good faith to recover possession of such housing accommodations for immediate use and occupancy as a dwelling for himself. Under the amendment to sec. 6 (a) (6) such a landlord must prove that he “has an immediate compelling necessity to recover possession of such accommodations for use and occupancy as a dwelling for himself,” or that he has served during the period of the war emergency in the armed forces of the United States and in good faith seeks possession for his own occupancy. Under this amendment a landlord who is not a veteran must prove that he owned or acquired an enforceable right to buy, or the right to possession of the housing accommodations prior to October 20, 1942 and that he has an immediate compelling necessity to recover possession of such accommodations for nse and occupancy as a dwelling for himself. If the landlord is a veteran he has a choice of proving an immediate compelling necessity to recover possession for use and occupancy as a dwelling for himself, (in which case he is not required to prove that he is a veteran), or that he has served during the war emergency in the armed forces of the United States and in good faith seeks possession for his own occupancy. Defendant urges both the “good faith” clause and the “immediate compelling necessity” clause. Prior to September 15,1945 the regulation required proof of good faith. The amended regulation effective that day, requires proof of “immediate compelling necessity,” except where the landlord is a veteran. In the latter case he may prove either requirement.

In our opinion, plaintiff did not prove that she seeks in good faith to recover possession of the premises for immediate use and occupancy as a dwelling for herself, nor did she prove that she has an immediate compelling necessity to recover possession of such accommodations for use and occupancy as a dwelling for herself. It is interesting- to note that the lease formerly in effect was made by Helen Lakowski “As Agent for the Owners, ’ ’ that plaintiff testified that she and her husband “are the owners” of the real estate, that they have been the “full owners” since 1940, and owned it “jointly with a partner since 1926,” and that plaintiff’s husband testified that “he purchased the property in 1926.” Defendant, however, does not appear to question that Elizabeth Lakowski is the landlord. Although the plaintiff and her husband have had an interest in the real estate since 1926, they did not endeavor to occupy an apartment therein until 1945. The OPA reduced the rent by $2.50 in 1943 and by $3.00 in 1945, or a total reduction of $5.50. Plaintiff testified that her husband, due to poor health, had lost Ms work and that “she and her husband needed to move into the property so that he could replace the janitor there and reduce expenses to make up for'his lost income from wages.” She stated that her husband suffers from arthritis and that he is “partially crippled by it.” There was no testimony as to when he became.ill, where plaintiff and her husband lived, what their financial condition was, whether he would be able to do the janitor work, why it would be necessary for him .to live in the apartment building’ in order to do the janitor work, or why plaintiff and her husband required a second floor apartment. A daughter of plaintiff testified, but there was no other testimony as to what the family consisted of, or .whether the daughter lived with plaintiff and her husband. The respective parties in their briefs state that there was evidence that plaintiff and her husband are living in a basement apartment. Plaintiff amplifies this statement by saying that her husband is living in a basement apartment “which is bad for his arthritis.” The report of proceedings states that it contains “all the testimony and all the proceedings had in said cause, ’ ’ but it does not contain any reference to a basement apartment, or as to where plaintiff and her husband live. If we accept the statements in the briefs that plaintiff and her husband are living in a basement apartment and that he is ill from arthritis, it does not seem reasonable that she would desire to move into a second floor apartment in order that expenses could be reduced by her husband doing the janitor work. He would be required to frequently walk up and down stairs and perform the usual tasks of a janitor in a six apartment bmldihg.

The burden was on plaintiff to prove by a preponderance of the evidence that she sought in good faith to recover possession of the apartment for immediate use and occupancy as a dwelling for herself, or that she had an immediate compelling’ necessity for such occupancy. She failed to make this proof. Good faith, like fraud, is difficult to define. It is a question of fact depending upon many facts and conditions. On an issue of good faith under OPA regulations, the circumstances must be taken into consideration in determining whether a landlord is merely attempting to juggle his property for profit, or legitimately requires it to live in. Sviggum v. Phillips, 217 Minn. 586, 15 N. W. (2d) 109. Whether there is an “immediate compelling necessity, ’ ’ also presents a question of fact.

The finding and judgment are against the manifest weight of the evidence. The judgment of the municipal court of Chicago is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Judgment reversed and cause remanded with directions.

Kiley, P. J., and Lewe, J., concur.


author: Mr. Justice Lewe

text:
    Albert Zoloth, Appellee, v. Wacker-Wabash Corporation, Appellant.
    Gen. No. 43,169.

      Opinion filed April 24, 1946.
    Released for publication May 10, 1946.
    Ross, Berchem & Schwantes, of Chicago, for appellant.
    Kamin, Gleason & Kamin, of Chicago, for appellee.
   Mr. Justice Lewe

delivered the opinion of the court.

This is an action at law brought by the plaintiff Albert Zoloth against defendant Wacker-Wabash Corporation, operator of a public garage, for personal injuries sustained by plaintiff, which resulted from falling over the edge of a wooden ramp as he stepped out of an automobile in which he was riding as a guest. The ramp was erected on a public street and used by defendant for parking automobiles of its patrons. There was a jury trial and verdict and judgment in plaintiff’s favor for $1,000. Defendant’s motions for judgment notwithstanding the verdict and for a new trial were denied. Defendant appeals.

Defendant maintained a public garage in the lower part of the Pure Oil Building, located at the southwest corner of Wacker Drive and Wabash avenue in the city of Chicago. When entering the garage from Wabash avenue, automobiles turned west on Haddock place, a narrow public thoroughfare one half block south of Wacker drive. Due to a difference in elevation between Haddock place and Wabash avenue, a wooden ramp was built, about the width of two automobiles and three and a half car lengths long, extending from the westerly line of the sidewalk on the west side of Wabash avenue down to the subgrade of Haddock place. Between the south wall of the Pure Oil Building and the north edge of the ramp there was a space five or six feet wide. In this space just west of the sidewalk of Wabash avenue stood a shanty about five feet wide and ten feet high, upon which a sign was erected bearing the name of the defendant’s garage and the words, “Cars received here.” Immediately west of the shanty the north edge of the ramp was six or seven feet above the ground level of Haddock place. There were no guard-rails on the north side of the ramp, nor were there any signs or warnings posted informing patrons of defendant’s garage of the drop of six or seven feet between the ramp and the south wall of the Pure Oil Building.

On the morning of May 18, 1937, plaintiff, riding as a guest, came to Chicago from Milwaukee, Wisconsin, in the automobile of one Weil, who was accompanied, by his wife. When Weil reached the intersection of Wacker drive and Wabash avenue, he turned south on Wabash avenue, thence west at Haddock place where he crossed the west sidewalk of Wabash avenue and proceeded down the ramp about ten feet, stopping his car in front of the shanty. During the journey, plaintiff sat beside Weil who was driving a two-door Buick automobile. It was parked in front of the shanty at about 10:30 a. m. At that time it was raining and “the sky was very dark and cloudy.” Shortly after the car was parked on the ramp, one of defendant’s uniformed attendants came from the shanty, opened the left door of the automobile and, as Weil stepped out of his car, the attendant took his place in the driver’s seat. Because it was raining, plaintiff stayed in the car, seated beside the attendant, for about five minutes. They did not converse with each other, and the automobile remained in the same position. After this brief period of waiting, plaintiff opened the right door and “stepped out backwards with his right leg.” He dropped six or seven feet to the ground north of the edge of the ramp, causing the injuries complained of. So far as the evidence shows, plaintiff, prior to this time, had never been on the ramp.

Plaintiff’s theory of the case is that defendant, in operating its business, set up signs, and placed attendants, directing motorists, who wished to store their cars, where to drive and where to stop; that defendant directed the driver to stop his car on the ramp, adjacent to an unguarded space between the ramp and the garage building; that defendant’s affirmative conduct in directing the automobile to a particular position, and its failure to guard the occupants of the automobile from the attendant hazards, constituted negligence.

Defendant contends that (1) it was not under any obligation to guard the ramp, which was simply a raised portion of Haddock place; and (2) that the plaintiff was guilty of contributory negligence as a matter of law.

The evidence discloses that the ramp was used by the defendant for its convenience and as part of its equipment in the operation of its business. According to defendant’s witness Lane, two other cars were parked on the ramp in front of Weil’s automobile at the time of the occurrence. Location of the shanty adjacent to the ramp, the sign above it which read “Cars received here,” the presence of one of defendant’s attendants in uniform and his taking custody of Weil’s car at this point, all tended to cause plaintiff, a stranger, to believe that the ramp was a part of the defendant’s premises. And to all intents and purposes it was. so used. Defendant argues that when the attendant took Weil’s place in the driver’s seat, plaintiff was a mere licensee and therefore cannot recover, citing Elliott v. Carlson, 54 Ill. App. 470, Mallory v. Day Carpet & Furniture Co., 245 Ill. App. 465, and Both v. Schaefer, 300 Ill. App. 464. These cases are dissimilar in their facts and do not support defendant’s contention. Defendant also relies on Murphy v. Huntley, 251 Mass. 555, 146 N. E. 710. There the plaintiff, a guest, had accompanied the owner of an automobile to defendant’s garage, and after entering it in the garage was injured. The court said at page 711:

“If under the circumstances, the plaintiff deemed it more convenient to board the car while in the garage rather than to wait on Bowker Street, he was at most a licensee, and, there being no evidence of reckless, wanton or willful conduct of the defendant, the motion for a directed verdict should have been granted. ’ ’

In the instant case, plaintiff remained seated in the automobile when the owner stepped out of it at a place designated by the defendant. The plaintiff was lawfully at a place which defendant used in connection with his business. Under these circumstances, plaintiff as Weil’s guest was in the position of a patron properly on the premises. (Warner v. Lucey, 207 App. Div. 241, 201 N. Y. S. 658, 660.) Since Weil, as an invitee, was directly induced to drive upon the ramp and surrender possession of his car there, by the defendant, plaintiff also became an invitee through Weil. (Pope v. Willow Garages, Inc., 274 Mass. 440, 174 N. E. 727, 728.)

Defendant’s second contention is that the plaintiff was guilty of contributory negligence. On cross-examination, plaintiff testified that when the automobile stopped in front of the defendant’s shanty, “the front window was steamed from the rain. I knew we were on some kind of an incline. . . . but I could not see in front of me. ... It was raining all the time. . . . Before I started to open the door I did not look at the door. As to whether there was anything to prevent me from seeing that the car was parked right next to the edge of the road, I did not look . . . I knew the car was parked right next to the edge of the road when I started to get out ... As to where I was going to step when I stepped out of the car, I expected to step on level ground.”

In their reply brief and on oral argument before this court, defendant’s counsel insisted that if the plaintiff had looked he would have known of the existence of the opening adjacent to the ramp. Just what the plaintiff might have seen had he looked through the closed right hand window is not shown by the evidence. On the morning of the occurrence it was raining and very dark. It is not improbable that the jury believed it physically impossible for the plaintiff to see from his position in the automobile what the situation was with respect to the ramp. Being unfamiliar with his surroundings, plaintiff could not anticipate the danger of getting out of the automobile as he did and, since it was a two-door sedan, there was no other way out. As plaintiff was leaving the automobile the attendant must have known that plaintiff would step into the open space between the ramp and the Pure Oil Building, yet he sat idly by and permitted him to do so without uttering a word of caution. Under the circumstances, we think the plaintiff had a right to assume that when he left the automobile he would not be stepping into a pitfall. (Pollard v. Broadway Cent. Hotel Corp., 353 Ill. 312, 320.)

“Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection and which is a legally contributing cause, cooperating with the negligence of the defendant in bringing about the plaintiff’s harm.” (Restatement of The Law of Torts, sec. 463.)

In Lotspiech v. Continental Illinois Nat. Bank & Trust Co., 316 Ill. App. 482, 498, this court in adverting to the case of Kelly v. Chicago City Ry. Co., 283 Ill. 640, 645, said:

“As a general proposition, the question of contributory negligence is one of fact for the jury under all the facts and circumstances shown by the evidence (Bale v. Chicago Junction Railway Co., 259 Ill. 476), but cases occasionally arise in which a person is so careless or his conduct so violative of all rational standards of conduct applicable to persons in a like situation that the court can say, as a matter of law, that no rational person would have acted as he did and render judgment for the defendant.”

In view of all the surrounding circumstances, we are of the opinion that the question of contributory negligence in the present case was one of fact for the jury and the trial court therefore properly overruled defendant’s motions for judgment notwithstanding the verdict and for a new trial.

For the reasons stated, the judgment is affirmed.

Judgment affirmed.

Kiley, P. J., and Burke, J., concur.


text:
    Barnet Lewis, Trading as Barnet’s 5 and 10 Cent Stores, Appellee, v. Claude A. Roth, Trustee of Property of Chicago and Northwestern Railway Company, Appellant.
    Gen. No. 43,194.
    Opinion filed April 24, 1946.
    Released for publication May 10, 1946.
    Nelson Trottman and James B. O’Shaughnessy, both of Chicago, for appellant; Nelson J. Wilcox, of Chicago, of counsel.
    No appearance for appellee.
   Mr. Justice Lewe

delivered the opinion of the court.

This is an action in contract against defendant, a common carrier in interstate commerce, for damages to certain store fixtures while in transit. After a trial before the court without a jury, a judgment was entered against the defendant in the sum of $45. Defendant’s motions in arrest of judgment and for a new trial were overruled. Defendant appeals.

Plaintiff owns and operates a 5 and 10 cent store in Chicago. He purchased certain store fixtures at Beatrice, Nebraska. After delivery of. the fixtures to the plaintiff at Chicago and payment to the defendant of the amount of freight due on the shipment, plaintiff learned that the fixtures were damaged while in transit. Shortly thereafter, on or about July 24, 1942, he went to the freight house of defendant and reported the damage. On the same day one Paine, a claim adjuster of the defendant railroad, came to see plaintiff relative to his claim for damages. Since the fixtures were still in crates at that time, Paine told plaintiff an examination of them could not be made until they were uncrated. About one month later, Paine came again and examined the fixtures, but in the meantime most of them had been repaired by a carpenter engaged by plaintiff. On this-occasion Paine gave plaintiff a business card (Plf’s Ex. 1) which read as follows: “A. S. Paine, claim adjuster and inspector, room 1214, No. 400 West Madison St., Dearborn 2l21, local 358, Chicago,” and bearing on the reverse side the following written in pencil: “S60526.”

On the trial, plaintiff testified that Paine said “he would see that payment was made.” Paine, called as a witness in behalf of the defendant, testified as follows: “I talked to Mr. Lewis at that time and told him that if he would file a claim it would be taken cafe of in the usual course of business. I gave him my card and on the hack of it wrote (Abst. p. 8) an S number. That is the only number used by our department in identifying claims as they are made. I did npt tell him that he would receive his $45 within a few days after I talked to him.” Defendant does not question that the fixtures were damaged to the extent of $45.

The pertinent portion of the bill of lading covering the shipment in issue (Deft’s Ex. 1) reads as follows (Abst. 11) section 2(b): “As a condition precedent to recovery, claims must be filed in writing with receiving or delivering carrier, or a carrier issuing this bill of lading, or carrier on whose line the loss, damage, injury or delay occurred, within nine months after delivery of the property.” Plaintiff admits that he did not file a claim in writing within nine months after the date the fixtures were delivered to him, and he does not allege in his complaint that he filed such a claim.

Although plaintiff has not filed a brief in this court, it appears from the abstract of record, pages 8, 9 and 10, that at the hearing before the trial court plaintiff urged that defendant’s claim agent, Paine, by his conduct misled plaintiff into believing that a settlement would be made without any further action on plaintiff’s part, thus waiving the stipulation in the bill of lading requiring the filing of a written claim and estopping it from denying liability.

Defendant contends that the filing of a written notice within nine months after the date of delivery is a condition precedent which cannot be waived" nor can defendant be estopped from asserting it as a defense.

By giving oral notice plaintiff was not relieved from filing his written claim within the period specified in the bill of lading. (Baltimore & O. R. Co. v. Leach, 249 U. S. 217; Southern Pac. Co. v. Stewart, 248 U. S. 446, 450; St. Louis, I. M. & S. R. Co. v. Starbird, 243 U. S. 592.) The law is well settled that the defendant railroad cannot waive any requirement of the bill of lading. The governing rule is quoted in Texas & P. R. Co. v. Leatherwood, 250 U. S. 478, 481. There Mr. Justice Brandeis held that,

“the parties to a bill of lading cannot waive its terms, nor can the carrier by its conduct give the shipper a right to ignore them. ‘A different view would antagonize the plain policy of the Act and open the door to the very abuses at which the Act was aimed.’ ”

To the same effect see Phillips Co. v. Grand Trunk Western R. Co., 236 U. S. 662; Georgia, F. & A. R. Co. v. Blish Milling Co., 241 U. S. 190; Erie R. Co. v. Stone, 244 U. S. 332; Appalachian Electric Power Co. v. Virginian Ry. Co. (W. Va.), 29 S. E. (2d) 471. In Cohen v. Texas & New Orleans R. Co., 303 Ill. App. 606, this court said, at page 612:

“The United States Supreme Court has consistently construed both sections of the act in a manner to preclude any possibility of an interstate carrier favoring one patron as against another. The carrier cannot by any device or subterfuge, or under any pretense, no matter how plausible, take any step which might eventually lead to favoring one shipper or passenger as against another. The act is aimed not only at violations of tariff provisions, but is applicable to any service to be performed by the carrier as well as to any benefit accruing to the .carrier by virtue of the shipping contract. To permit a railroad company to plead the statute of limitations as against some and to waive it as against others, would be to prefer some and discriminate against others. The prohibitions of the statute against unjust discrimination relate not only to inequality of charges, but also to giving of preferences by means of consent judgments, or the waiver of defenses open to the carrier.”

Application of the rule announced in the foregoing cases to the facts in the present case bars plaintiff from recovery.

We, therefore, are of the opinion that the trial court erred in overruling defendant’s motion in arrest of judgment.

For the reasons stated, the judgment is reversed.

Judgment reversed.

Kiley, P. J., and Burke, J., concur.


text:
    Belmont Garage Corporation, Appellee, v. J. W. Petersen Coal Company, Appellant.
    Gen. No. 43,270.
    Opinion filed April 24, 1946.
    Released for publication May 10, 1946.
    John E. Wilson, of Chicago, for appellant.
    Philip A. Winston, of Chicago, for appellee.
   Mr. Justice Lewe

delivered the opinion of the court.

This is an action at law to recover for damage resulting from the alleged negligence of defendant in driving a loaded coal truck against a fire escape attached to plaintiff’s building and overhanging a public alley. There was a trial by the court without a jury and finding and judgment for $530 in favor of plaintiff. Motions for a new trial and arrest of judgment were overruled. Defendant appeals.

The material facts are substantially uncontroverted. Plaintiff owns a building at 3157 Broadway in the City of Chicago where it maintains a public garage. Immediately north of the building is a 16-foot alley running in an easterly and westerly direction. A fire escape attached to the north wall of plaintiff’s building extends out over the alley about 52 inches. Along the south wall of a building directly across the alley from plaintiff’s building are telephone poles and an electric instrument box which project into the alley about two feet three inches, leaving an unobstructed space in the alley for vehicular traffic between plaintiff’s fire escape on the south and the telephone poles on the north of more than nine feet. About noon on March 20, 1943, defendant’s truck, carrying 11% tons of coal, was being driven in a westerly direction by one John Tivadore on the left side of the alley within two feet of the north wall of plaintiff’s building. As Tivadore was driving underneath the fire escape the upper portion of the body of his truck struck the fire escape, necessitating its removal and disassembling for repairs. In order to carry 11% tons of coal in the plaintiff’s truck, 10-inch wooden .boards were fastened to the top of the body by metal hinges, and the coal was heaped “dome-shaped” about 18 inches above the boards. The height of the truck from the ground to the top of the hinged boards was 10 feet 9 inches and the width, including the wheels, was 8 feet 2 inches.

The amended complaint alleges in substance that plaintiff’s building, including the fire escape, was constructed in accordance with certain detailed plans approved by the Building Commissioner of the City of Chicago; that defendant was guilty of negligence (1) in driving on the wrong side of the alley; (2) driving at a greater speed than was reasonable; and (3) in failing to observe the height of the truck as compared with the position of plaintiff’s fire escape,

In its amended affidavit of merits defendant denies all the'allegations of negligence and avers that at the time of the alleged occurrence there was in .full force and effect in the City of Chicago an ordinance (section 2605.03 of the Building Code) which provided that there shall be a vertical clearance of not less than 14 feet underneath any fire escape . . . which overhangs an alley . . . and that the fire escape of the plaintiff as constructed was in violation of the foregoing ordinance at the time of the occurrence.

Defendant’s principal contention is that the negligence of plaintiff in maintaining a fire escape over a public alley with a vertical clearance of less than 14 feet in violation of the city ordinance bars plaintiff from recovery.

Tivadore, the driver of the truck, testified that he had driven through the alley in question on three or four other occasions with smaller trucks; at the time of the occurrence “it was day-light and I could see where I was going; I saw the fire escape; my truck was loaded as much as could be put on it; I was going about 7V2 miles per hour; there was a little bitty knock that made the fire escape all twisted, tom and broken.”

In his brief, counsel for defendant argues that the public has a right to use the entire alley from side to side and above the surface of the ground for the movement of traffic; that there is no limitation on the height to which a truck may be loaded, and that Tivadore had a right to assume that the fire escape would not be lower than 14 feet above the alley pavement, and therefore cannot be criticized for driving his truck on the left side of the alley. Defendant’s argument is a tacit admission that Tivadore made no effort to determine whether the loaded truck would clear the fire escape as it passed underneath. This is also borne out by Tivadore’s testimony. Though his truck was “loaded as much as could be put on it,” he did not reduce Ms speed at this point. Moreover the evidence . shows that the clearance was greater on the right side and sufficient to permit the passage of the track, but -he chose to drive on the left side of the alley. There is a conflict in the testimony as to whether the fire escape had a clearance of 14 feet, but this we think is immaterial under the circumstances. On the day of the occurrence, Tivadore’s view of the fire escape was not obstructed, nor was he unfamiliar with the alley and the obstructions, since he had driven through it on other occasions.

In Lerette v. Director General of Railroads, 306 Ill. 348, 352, the court said:

“Violation of a law at .the time of an accident by one connected with it is usually evidence of negligence, but there remains a question of fact whether the illegal act is the proximate cause of the injury. The mere fact that plaintiff was violating a law at the time he was injured ought not to bar his right to recover any more than the fact that, defendant was violating a law at the time plaintiff was injured ought to conclusively establish plaintiff’s right to recover. Where the defense is that plaintiff’s unlawful conduct at the time of the accident was the proximate cause of the accident, the difficult question presented for determination is whether the unlawful conduct was a direct and proximate cause contributing, with others, to the injury or whether it was a mere condition of it. The mere fact that plaintiff was violating the law at the time he was injured will not bar his right to recover unless the unlawful act in some way proximately contributed to the accident in which he was injured. . . . If the illegal act is a mere condition which made it possible for the accident to occur but is in itself no part of the accident it will not bar recovery. ’ ’

To the same effect. see Jeneary v. Chicago & Interurban Traction Co., 306 Ill. 392, 395; Gourley v. Chi cago & E. I. Ry. Co., 295 Ill. App. 160, 170; and Wuerz v. Southern Ry. Co., 318 Ill. App. 1, 5, 6.

The evidence shows that at the time of the accident the fire escape in question was in good working order and had been in use for 17 years without’ any mishap. It was in plain view as Tivadore drove down the alley, and the mere fact that it was an obstruction above the alley did not justify him in exercising a less degree of care than he did to" avoid striking other obstructions at or near the surface of the alley such as the electric instrument box or the telephone poles.

In our opinion the question whether the alleged violation of the ordinance was the proximate cause of the injury complained of was one of fact for the trial court to determine. The evidence amply warrants the court’s findings.

In the view which we take of this case it is unnecessary to consider the other points raised.

For the reasons stated, the judgment is affirmed.

Judgment affirmed.

Kiley, P. J., and Burke, J., concur.


author: Presiding Justice Friend.

text:
    Russell Firebaugh, Trustee, Plaintiff, v. Arthur F. Johnson et al., Defendants. Union Trust Bank, Appellant, v. William S. Newburger, Appellee.
    Gen. No. 43,183.

      opinion filed April 11, 1946;
    released for publication May 16, 1946.
    William H. Noble, for appellant;
    Gariepy & Gariepy, for appellee; Fred A. Gariepy and John Spalding, of counsel.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    Rose Cipich, Appellant, v. City of Chicago, Appellee.
    Gen. No. 43,276.
    opinion filed April 11, 1946;
    released for publication May 16, 1946.
    Coghlan & Coghlan, for appellant; John P. Coghlan, of counsel;
    Barnet Hodes, Corporation Counsel, for appellee; J. Herzl Segal and Adam E. Patterson, Assistant Corporation Counsel, of counsel.
   Opinion by

Presiding Justice Friend.

Not to be published in. full.


text:
    City of Chicago, Appellee, v. Gertrude Bonn, Appellant.
    Gen. No. 43,376.
    opinion filed April 11, 1946;
    released for publication May 16, 1946.
    Thomas A. Green, for appellant; Ode L. Rankin, of counsel;
    Barnet Hodes, Corporation Counsel, for appellee; J. Herzl Segal, Head of Appeals and Review Division, L. Louis Harton and Georgia Jones Ellis, Assistant Corporation Counsel, of counsel.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    M. M. Gordon and P. Gordon, Appellees, v. Victor C. Breytspraak, Appellant.
    Gen. No. 43,398.

      opinion filed April 11, 1946;
    rehearing denied May 15, 1946;
    released for publication May 16, 1946.
    G. A. Bosomburg, for appellant;
    Rudnick & Wolfe and Sylvanus George Lee, for appellees.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    Edward S. Gillespie, Appellee, v. Evie Gillespie, Incompetent, Defendant. Appeal of Hinda Samuels, Guardian ad Litem, Appellant.
    Gen. No. 43,417.
    opinion filed April 11, 1946;
    rehearing denied May 15, 1946;
    released for publication May 16, 1946.
    William H. Temple and Sydney P. Brown, for appellant and defendant;
    Prescott, Burroughs & Taylor and Hugh E. Johnson, for appellee; Euclid Louis Taylor and Hugh E. Johnson, of counsel.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    Loretta Pabis, Administratrix of Estate of Walter Dembski, Deceased, Appellant, v. Thomas J. Friel et al., Trading as Chicago Surface Lines, Appellees.
    Gen. No. 43,431.
    opinion filed April 11, 1946;
    released for publication May 16, 1946.
    Edward M. Burke, for appellant;
    Frank L. Kriete, Charles E. Green and Arthur J. Donovan, for appellees; William J. Flaherty, of counsel.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    Peter Van Brussel, Appellee, v. Robert Bartlett, Trading as Robert Bartlett Realty Company, Appellant.
    Gen. No. 43,457.

      opinion filed April 11, 1946;
    released for publication May 16, 1946.
    Robert D. Thompson, for appellant; Richard E. Keogh, of counsel;
    James L. Kostka and Oscar A. Knittel, for appellee.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


author: Justice Sullivan.

text:
    People of State of Illinois ex rel. James Roach et al., Appellees, v. Robert J. Dunham, President Chicago Park District et al., Appellants.
    Gen. No. 43,366.
    opinion filed April 11, 1946;
    released for publication May 16, 1946.
    John O. Rees, for appellants; Martin G. Loeff, of counsel;
    Marvin J. Bas, for appellees.
   Opinion by

Justice Sullivan.

Not to be published in full.


text:
    People of State of Illinois, Defendant in Error, v. Laura Bailey, Plaintiff in Error.
    Gen. No. 43,614.

      opinion filed April 11, 1946;
    released for publication May 16, 1946.
    W. G. Anderson and Eugene W. Wood, for plaintiff in error;
    William J. Tuohy, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice Sullivan.

Not to be published in full.


text:
    Edwin Johnson, Appellant, v. Chester Harman, Appellee.
    Gen. No. 43,684.
    opinion filed April 11, 1946;
    released for publication May 16, 1946.
    Lambert Kaspers, for appellant;
    Coghlan & Coghlan, for appellee; Malachy J. Coghlan and John P. Coghlan, of counsel.
   Opinion by

Justice Sullivan.

Not to be published in full.


author: Presidinq Justice Kiley.

text:
    Charles Marron, Jr., minor, by father and next friend, Charles Marron, Sr., Appellee, v. Thomas J. Friel et al., Trustees, Trading as Chicago Surface Lines et al., Appellants.
    Gen. No. 43,380.
    opinion filed April 24, 1946;
    released for publication May 10, 1946.
    Frank L. Kriete, James O. Dwight, Charles E. Green, and Arthur J. Donovan, for appellants; William J. Flaherty, of counsel;
    James A. Dooley, for appellee.
   Opinion by

Presidinq Justice Kiley.

Not to be published, in full.


author: Presiding Justice Kiley.

text:
    Clare J. Murphy, Conservator of Estate of Max Pashkow, Incompetent, Appellee, v. Thomas J. Friel et al., Trustees, Trading as Chicago Surface Lines, Appellants.
    Gen. No. 43,483.

      opinion filed April 24, 1946;
    rehearing denied May 10, 1946;
    released for publication May 10, 1946.
    Prank L. Kriete, James O. Dwight, Charles E. Green, and Arthur J. Donovan, for appellants; William J. Plaherty and James O. Dwight, of counsel;
    James A. Dooley, for appellee.
   Opinion by

Presiding Justice Kiley.

Not to be published in full.


text:
    James Oakey Koontz, Appellant, v. Public Service Company of Northern Illinois, Appellee.
    Gen. No. 43,514.
    opinion filed April 24, 1946;
    released for publication May 10, 1946.
    James Oakey Koontz, pro se;

    Isham, Lincoln & Beale, for appellee; James P. Dillie, of counsel.
   Opinion by

Presiding Justice Kiley.

Not to be published in full.


text:
    William C. Revis, Appellee, v. Edward Thompson, Appellant.
    Gen. No. 43,644.
    opinion filed April 24, 1946;
    released for publication May 10, 1946.
    Eugene P. Kealy and James A. Filipek, for appellant;
    Royal W. Irwin, for appellee.
   Opinion by

Presiding Justice Kiley.

Not to be published in full.


author: Justice Burke.

text:
    Blanche S. Giddens and Chicago Title and Trust Company, Trustees under the Last Will and Testament of Louis M. Stumer, Deceased et al., Appellants, v. Board of Education of City of Chicago, Appellees.
    Gen. Nos. 42,054 to 42,057.

      opinion filed April 24, 1946;
    released for publication May 10, 1946.
    Downer McCord, Thomas Hart Fisher, D' Ancona, Pflaum, Wyatt, Marwick & Riskind, and Kirkland, Fleming, Green, Martin & Ellis, for appellants; William Wilson and Joseph H. Pleck, of counsel;
    Richard S. Folsom, Frank S. Righeimer and Hummer, Van Hess & Yowell, for appellee.
   Opinion by

Justice Burke.

Not to be published in full.


text:
    John Matteis, Appellee, v. Edith Matteis, Appellant.
    Gen. No. 43,571.
    opinion filed April 24, 1946;
    released for publication May 10, 1946.
    James J. Hajek, for appellant;
    Brodkin & Bieber, for appellee; Irving W. Eiserman, of counsel.
   Opinion by

Justice Burke.

Not to be published in full.


author: Justice Lewe.

text:
    Mary F. Bentley, Administratrix of Estate of Charles E. Line, Sr., Deceased, Appellee, v. Merchants Matrix Cut Syndicate, Inc., Appellant.
    Gen. No. 43,155.

      opinion filed April 24, 1946;
    released for publication May 10, 1946.
    Lucius, Buehler & Lucius, for appellant; Edward B. Lucius and Balph F. Trenehard, of counsel;
    Winston, Strawn & Shaw, for appellee; George B. Christensen and Alexander J. Moody, of counsel.
   Opinion by

Justice Lewe.

Not to be published in full.


text:
    People of State of Illinois, Defendant in Error, v. Mary Robertson, Plaintiff in Error.
    Gen. No. 43,477.
    opinion filed April 24, 1946;
    rehearing denied May 10, 1946;
    released for publication May 10, 1946.
    George M. Tearney and Ode L. Rankin, for plaintiff in error;
    William J. Tuohy, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Bembe, Joseph A. Pope, and O. D. Pemberton, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice Lewe.

Not to be published in full.


text:
    In re Matter of Kathleen Richards, Dependent, People of State of Illinois, Appellee, v. Emory Herron, Appellant.
    Gen. No. 43,592.
    opinion filed April 24, 1946;
    rehearing denied May 10, 1946;
    released for publication May 10, 1946.
    Ellis & Westbrooks, for appellant; Richard E. Westbrooks, of counsel;
    George P. Barrett, Attorney General, for appellee; William J. Tuohy, State’s Attorney, Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, and Joseph A. Pope, of counsel.
   Opinion by

Justice Lewe.

Not to be published in full.


text:
    Edwin M. Hadley, Jr., Appellee, v. Ernest E. Lilliander, et al., Defendants. Appeal of William H. Murphy et al., Appellants.
    Gen. No. 43,668.

      opinion filed April 24, 1946;
    released for publication May 10, 1946.
    Winston, Strawn & Shaw, for appellants; John D. Black, of counsel;
    Haight, Goldstein & Hobbs, for appellee; George I. Haight and Chas. H. Lerch, of counsel.
   Opinion by

Justice Lewe.

Not to be published in full.


text:
    Z. S. Mancou and B. R. Mancou, Appellees, v. Trust Company of Chicago et al., Defendant Appellees, S. M. Homan and Rose Y. Homan, Appellants.
    Gen. No. 43,701.
    opinion filed April 24, 1946;
    released for publication May 10, 1946.
    Axel Markels, for appellants; Harry G. Fins, of counsel;
    Hershenson & Hershenson, for appellees;
    Harry A. Biossat, for defendant appellee.
   Opinion by

Justice Lewe.

Not to be published in full,