text:
    A. G. Leonard et al., not as Individuals but as Trustees of Central Manufacturing District, Appellees, v. Autocar Sales and Service Company, Appellant.
    Gen. No. 43,164.

      Heard in the third division of this court for the first district at the October term, 1944.
    Opinion filed March 21, 1945.
    Released for publication April 10, 1945.
    Hayes, Shehee & Quigley, of Chicago, for appellant; Raymond F. Hayes and J. Glenn Shehee, both of Chicago, of counsel.
    Winston, Strawn & Shaw, of Chicago, for appellees ; Harold A. Smith and Edward J. Wendrow, both of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On January 7, 1944 A. G. Leonard, F. II. Prince and D. H. Reimers, as trustees of the Central Manufacturing District, filed a complaint in the superior court of Cook county against the Autocar Sales and Service Company, a corporation, alleging that on December 1, 1926 they entered into a lease with the defendant whereby they demised certain property at the intersection of Pershing Road and South Hermitage avenue in Chicago for a period of 20 years; that defendant covenanted to pay an annual rental of $10,700 in equal monthly instalments, unpaid instalments to bear interest at the rate of 7 per cent per annum; that defendant entered into possession and paid the rental due under the lease up-to and including the month of March 2943, but refused to pay the rental from April 1, 1943 down to and including January 1, 1944; and that such unpaid rental and interest thereon -amounted to $9,-536.10, for which plaintiffs asked judgment. , A copy of the lease is attached- to the complaint as an exhibit. The answer admits the execution of the lease and the refusal to pay the rental for the 10 months for which suit was brought. For its defense defendant alleged that shortly prior to, March 11, 1943 the use of all the property described in the lease was deemed necessary by the secretary of war of the United States of America to be acquired for military purposes; that tlie secretary of . war of the United States requested the attorney general of the United States to institute proceedings to acquire by condemnation the temporary use of the entire property described in the lease pursuant to the federal statutes in such case made and provided; that the secretary of war requested the condemnation of the land for a term ending June 30, 1943, with the right to extend the term for additional yearly periods thereafter during the existing national emergency at his election; that on or about March 11, 1943 the attorney general caused to be filed in the district court of the United States for the northern district of Illinois, eastern division, a petition for condemnation by the United States against the land and against the plaintiffs and defendant in this cause, in proceedings known as 43 C 270; that upon the filing of the petition for condemnation an order was entered by the district court of the United States on March 11, 1943, condemning and taking by the United States for military and other war purposes, the temporary use of all of the real property described in the lease, together with the improvements thereon and appurtenances thereunto belonging, and it was thereupon ordered by the district court that delivery of immediate possession be made of all of the real estate described in the lease; that subsequently, on May 1, 1943, the United States and the secretary of war served notice upon the plaintiffs and defendant in this cause that they had determined and thereby elected to extend the term for the use of the property described in the lease for an additional yearly period beginning July-1, 1943 to and including June 30, 1944; and that the condemnation of the use of the property is subject to the right of the secretary of war to extend the term of condemnation for indefinite future additional yearly periods. Further answering, the defendant alleged that under article VI of the indenture of lease, the defendant’s use of the premises thereby demised was limited to the storage, sale and service of automobiles and automobile trucks, which is the business in which defendant has been for many years and is still engaged; that the condemnation of the premises on March 11,1943 rendered them incapable of occupation for any purpose consistent with the lease; that in March 1943 defendant was doing a very substantial business in the storage, sale and service of automobiles and automobile trucks, and required a building in which it could continue such business; that defendant was then obliged to seek and obtain a new building in order to continue its business; that on March 25, 1943 defendant purchased the real estate commonly known as 200 North Taiman avenue, Chicago, and paid therefor a consideration of $50,000, and then moved its place of business from the premises described in the lease to the newly purchased premises. Defendant further alleged that by reason of the aforesaid facts, defendant was evicted by paramount right from the entire premises described in the lease; that the relation of landlord and tenant was thereby abrogated and that the lease, was terminated by law; that the premises described in the lease were rendered incapable of occupation for any purpose consistent with the lease and that all liability of the defendant to pay rent under the lease to the plaintiffs ceased on March 11,1943, the date of the order of condemnation.

Plaintiffs interposed a motion to strike the answer on the following grounds: (1) It appears from the answer that the United States of America has not condemned the property for the balance of the term, and the taking of a portion of the term, less than the whole, and for a period which will terminate before the period of the lease terminates, does not terminate the lease and does not relieve defendant from the payment of rent; and (2) The fact that the United States of America has the right to condemn for a longer period than that already taken is not an excuse for the nonpayment of the rent. The motion to strike the answer was sustained. Defendant elected to abide by its answer and suffered judgment for $9,536.10, the amount claimed in the complaint. This appeal followed.

Defendant maintains that the effect of the taking by the exercise of the power of eminent domain of an entire parcel of leased property for temporary use for an indefinite period which may fall short of or exceed the remaining term of the lease, and which renders the land incapable of occupation for any purpose consistent with the lease, constitutes a termination of the lease by operation of law; that the effect of the taking by the exercise of the power of eminent domain of an entire parcel of leased property for temporary use for an indefinite period which may fall short of or exceed the remaining term of the lease, and which renders the land incapable of occupation for any purpose consistent with the lease, operates, to abate the rent pro tanto. Plaintiff replies that where the temporary use of the entire leased property is condemned by the government under its power of eminent domain (as distinguished from a condemnation of the entire fee of the leased property) and possession taken, the tenant is not thereby excused from further performing the covenant in his lease to pay rent; that the taking of the temporary use of the entire leased property by the government is not an eviction of the tenant by title paramount within the meaning of the rule excusing the tenant from paying rent when he has been evicted by a title paramount. The doctrine of “commercial frustration” which has been applied to ordinary contracts is not applicable to a demise of real property, since a lease differs from the ordinary contract because by it the tenant acquires an interest in the land itself. The legal question presented by the affirmative defense may be succinctly stated to be as follows: Where property is leased to á tenant for a term of years and the temporary use thereof is subsequently condemned by the United States for a period shorter than the balance of the term of the lease and possession taken, but with the right on the part of the government to make renewals which may extend beyond the expiration of the tenant’s term, is the tenant, because of such fact, thereafter excused from performing his covenant to pay rent? The question has not been decided by any court in this country. Although it is a well known fact that the United States, in the prosecution of this war, has found it necessary to file numerous petitions to condemn the temporary use of property (as distinguished from a condemnation of the fee) under the authority conferred by Title 50, USCA App. § 632, no court whose decisions are reported, has had occasion to directly consider the effect of such condemnation on the tenant’s covenant to pay rent. We have studied the cases cited by the respective parties in support of their arguments. The lease was for 20 years from- December 1, 1926 to November 30, 1946. The answer avers that shortly prior to November 11, 1943 the use of all the property described in the lease was deemed necessary by the secretary of war and that he requested the use be condemned for a term ending June 30, 1943, with a right to extend the term for additional yearly periods during the existing national emergency; that on March 11,1943 a petition for condemnation was filed in the federal court and upon the filing of the petition, an order was entered condemning “the temporary use of all the real estate described in said lease,” together with improvements and appurtenances; that it ordered that immediate possession be made of all the real estate described in the lease; that on May 1, 1943 the United States and the secretary of war served notice on the parties that they had elected to extend the term for the use of the property for an additional yearly period beginning July 1, 1943 to June 30, 1944; and that the condemnation of the use of the property is subject to the right of the secretary of war to extend the term for indefinite future additional yearly periods. Under these allegations the interest the government initially acquired might be denominated as a leasehold interest in the property for a definite term ending June 30,1943, which was extended for a year from that date, with the right in the government to renew from year to year thereafter. United States v. Certain Parcels of Land in City of Baltimore, Maryland, 55 F. Supp. 257; United States v. 5.741 Acres of Land, 51 F. Supp. 147; United States v. 16.747 Acres of Land, 50 F. Supp. 389. It is clear that the government has not acquired any part of the fee and that plaintiffs’ reversionary interest in the fee has not been affected by the proceeding. In view of the fact that the government has only acquired a temporary use of the entire leased premises, the question is squarely, presented as to whether this fact excuses the tenant from its covenant to pay rent.

Defendant leans heavily on the case of Corrigan v. City of Chicago, 144 Ill. 537, where the rule was laid down that when the entire fee of the leased premises is condemned by the State under its power of eminent domain, the relationship of landlord and tenant ceases and the tenant is no longer obligated to pay rent. Defendant argues from this case that when the entire fee is taken the tenant is unable to further occupy the leased premises and that the same is true in the instant ease, since the government by acquiring the temporary use of all the premises, temporarily, and possibly for the remainder of the term of the lease, has also wholly prevented defendant from occupying the leased premises. The basis of the decision in the Corrigan case was that the relationship of landlord and tenant necessarily terminated when there was a condemnation of the entire fee, because thereafter the landlord had no further title in the property. In the Corrigan case the court points out (pages 544 and 545) that when the fee is taken there is an absolute extinguishment of both interests in the property. We agree with plaintiffs that there is nothing in the reasoning in the Corrigan case which sustains the position defendant seeks to maintain, and that the underlying basis for the decision in that case is not present here. Where the mere temporary use is condemned by the government, the landlord’s fee title is in no way affected. It will also' be noted that in the instant case there has not been an absolute extinguishment of the remainder of the tenant’s estate. The pleadings show that defendant’s estate, between March 11, 1943 and June 30, 1944, has been taken, and it is only a possibility that the entire balance may be taken. However, in our judgment, whether the balance will eventually be taken or not, is entirely immaterial. Defendant refers to other cases in this and. other jurisdictions where only a part of the fee of the leased premises is condemned. The eases in this jurisdiction are Stubbings v. Village of Evanston, 136 Ill. 37; and Yellow Cab Co. v. Staff ord-Smith Co., 320 Ill. 294, where the rule is laid down that the taking of á part of the leased premises by the exercise of the right of eminent domain, leaving a part susceptible to occupation under the lease, does not release the tenant from the payment of any part of the rent, but he is bound for the payment of the rent reserved for the full term without apportionment or abatement for the part taken. In the Corrigan case the court said (page 544):

“And when a portion only of the land is taken, and a portion remains, which is susceptible of occupation under the lease, we have held, following what we regard as the weight of authority, that the covenants of the lease are not abrogated, and that the tenant is bound by his covenant to pay full rent according to its terms. Stubbings v. Village of Evanston, 136 Ill. 37.”

Defendant declares that the rule adopted in this State contains within its own language the reason for the distinction between the cases holding the leases terminated and the cases holding the leases in force, namely, that if the condemnation leaves a part of the premises susceptible of occupation under the lease, the lease is not terminated, and that if on the other hand, the condemnation renders the land incapable of occupation for any purpose consistent with the lease, as in the instant case, the lease is terminated. The Supreme Court was, dealing with a situation where only a part of the fee was taken, and it has not ruled what the result would be if the part of the fee remaining is not susceptible to occupation. We agree with plaintiffs that in any event the cases are not authority for the proposition that the taking of a temporary use of leased premises relieves the tenant from its covenant to pay rent. In the Yellow Cab Co. case there was a partial taking, quantitatively speaking, and a complete taking, temporally speaking, as to the part so taken. In the instant case there was a complete taking, quantitatively, but only a partial taking, temporally speaking, of the part taken.

There are a few cases in England arising out of the act of the government in taking the temporary possession of leased property during the first world war and this war, squarely ruling on this point, and they have ruled adversely to defendant’s contention. A case squarely in point on its facts is Whitehall Court Limited v. Ettlinger, [1920] 1 K. B. 680. In that case plaintiffs let to defendant two flats under leases dated June 3 and November 21, 1915, at specified rentals. In December 1916 the military authorities, acting under the Defence of the Realm Regulations, served a notice stating that the war department required immediate possession of the flats. The tenant, however, objected to giving up possession. On May 17, 1917 the tenant was informed that the requisitioning of the flats must take immediate effect and that possession would be required on May 19. The tenant accordingly vacated. He refused to make any claim for compensation to the Defence of the Realm Losses Commission, claiming he was not liable for rent. He paid the rent up to May 19,1917, but declined to pay rent thereafter. The military authorities were still in possession when the two leases expired on June 24, 1918. Plaintiffs sued for the balance of the rent due to December 25, 1917. In entering judgment for the plaintiff, the court said (pages 685-687) Earl of Reading:

“. . . I have come to the conclusion that there is nothing in the facts and circumstances of this case which would justify me in saying* that the tenancy created by the leases had been thereby determined. If I were dealing with a commercial contract, or an agreement between the parties which did not also amount to a demise of premises as in this case, there would be great force in-the arguments which were put before me. It was said in the first place that this is a case of eviction by title paramount, and if it were so Mr. G-iveen would have made good the first proposition upon which he rested his case. But I am not satisfied that this was an eviction at law. When the tenant moved away from the flats he did so by force of circumstances — >hat is, by the order of the Government authorities. I do not think however that it could be said that he was evicted by title paramount. In the circumstances there was no eviction of him by the Government and no determination of the estate created by the leases. The tenant, for all he knew, might have been able to return to the flats after a short absence, on the other hand he might have to remain away a long time as in the present case, even until the end of the term. ...
“The second point taken by Mr. Giveen was that there had been a determination of the whole tenancy by reason of the requisition of the flats. It seems to me that that depends upon much the same considerations. It is said that, looking at all the circumstances, treating the case as one would an ordinary contract, and applying the general principles which are not in dispute, I ought to hold the whole tenancy to be at an end. But I find the same difficulty with regard to this point as I did with regard to the first point. The judgment of Lush, J. in London and Northern Estates Co. v. Schlesinger, (1) has been cited, where he said: ‘It is not correct to speak of this tenancy agreement as a contract and nothing more. A term of years was created by it and vested in the appellant and I can see no reason for saying that because this Order disqualified him from personally residing in the fiat it affected the chattel interest which was vested in him by virtue of the agreement. ’ I think that dictum applies to the present case. I can see no reason why the chattel interest which was vested in the tenant by virtue of the two leases was affected merely because he was personally prevented from residing in the flats. If I were dealing with an. ordinary contract I should feel great force in the argument addressed to me by Mr. Giveen, but I can find no authority and no justification for saying that I must apply to the present case the principles laid down in the citations made by Mr. Giveen. The agreements contained in the leases are not only contracts, they also create an estate by demise for a term of years. Therefore, I think that the plaintiffs are entitled to recover their rent.”

The foregoing decision was approved by the highest court of England, namely, the House of Lords, in Matthey v. Curling, [1922] 2 A. C. 180, affirming on this point Curling v. Matthey, [1920] 3 K. B. 608. In the Curling case the defendant claimed that he was relieved of payment of rent on the grounds: (1) he was evicted by title paramount and the lease was thereby determined; and (2) there was a frustration of the purposes for which the lease was granted The trial judge held the defendant liable for the rent, feeling he should follow the decision in the Ettlinger case. The case was appealed to the court of appeals and its opinion is reported prior to the opinion of the House of Lords in [1922] 2-A. C. 180, at pages 180-221. The House of Lords affirmed the lower court’s ruling and specifically approved the decision in the Ettlinger case.

In Swift v. MacBean, [1942] 1 K. B. 375, a case arising out of the second world war, plaintiff claimed for rent due May 16, June 16 and July 16, 1941 in respect of certain premises leased under an agreement made on August 30, 1939. The defense interposed was that the agreement was' no longer binding on defendants. In rendering judgment for plaintiff Judge Birkett held that the case was governed by the earlier decisions, and stated that merely because the premises were furnished was no ground for distinguishing them and in holding that the frustration doctrine did apply to the particular lease before him. The most recent English authority appears to be Leightons Investment Trust, Limited v. Crichleioood Property & Investment Trust, Limited, [1943] 1 K. B. 493. This case is not so close on its facts as the other cases in that it did .not involve a situation where the actual possession of the leased premises was temporarily taken over by the government. It is of interest in that it definitely settled in England that the doctrine of frustration, sometimes applied to ordinary contracts, has no application to a lease of real property. In rendering judgment for plaintiffs, Judge Asquith said (495):

“It is not disputed that the doctrine of frustration has no application to an ordinary lease: Matthey v. Curling (1); London and Northern Estates v. Schlesinger (2); and Whitehall Court, Ltd. v. Ettlinger (4); nor has it any application to a lease of a furnished house, as was decided recently by Birkett, J. in Swift v. MacBean (5). The ratio decidendi of these decisions is plain. A contract may be frustrated, but a demise is more than a contract. It is a conveyance of an estate in land or a chattel real. It transfers proprietary as well as personal rights. This seems to me just as true of a building lease as of any other kind of lease.”

An appeal was taken to the court of appeals, which affirmed the judgment and stated at page 496:

“The doctrine of frustration, which was first clearly enunciated in 1863 in Taylor v. Caldwell (1), has been appliéd to a variety of contracts, but it has never been applied to a demise of real property. Indeed, there is clear authority that it cannot be so applied.”

The Illinois decisions have likewise recognized that a lease differs from an ordinary contract in that thereby an interest in the land itself is vested in the tenant. In People v. Shedd, 241 Ill. 155, the court said (165):

“A lease for a term of years is a chattel real. It conveys an interest in the land. While it has some of the attributes of personalty it is treated in many respects as real estate.”

In Tiffany, Landlord and Tenant, vol. 1, page 159, it is stated:

“The word ‘lease’ is unfortunately used in different senses. Its primary signification is well given by Blackstone as ‘properly a conveyance of any lands or tenements (usually in consideration of rent or other annual recompense) made for life, for years, or at will, but always for a less time than the lessor hath in the premises.’ Other standard textbooks give substantially similar definitions, and that a lease is a conveyance has been frequently stated judicially. ... In view of the fact that the entrance into contractual obligations by means of ‘covenants’ ordinarily constitutes a most important part of a transaction involving the creation of the relation of landlord and tenant, it is not surprising that quite frequently the courts have lost sight of the fact that the really essential part of the transaction is a conveyance, and instead regard it as involving the creation of contractual obligations only, frequently speaking of the ‘contract of lease’.”

Defendant calls our attention to the Scotch case of The Tay Salmon Fisheries Company, Ltd. v. Speedie, [1929] S. 0. 593. The fishery company, as the tenant of the Tents Moor Salmon Fishings and other subjects accessory thereto, brought an action in the sheriff court at Perth against Speedie, the landlord, in which the tenant “craved” the court to declare (1) that by lease dated in August 1916, the landlord let to the tenant the fishings and others for the space of nineteen fishing seasons; (2) that in consequence of bye-laws dated September 1925 and 1928, made by the president of the air council under the provisions of the Military Lands Acts as applied by certain air force orders, and of the bombing and firing practice carried on by the Boyal Air Force under these bye-laws, the whole subjects leased had been rendered unworkable and entirely unproductive; and (3) that the tenants were entitled to abandon the lease and fishings as from the end of the fishing season 1926. The sheriff-substitute found that after the tenant had entered into possession, the air council made certain bye-laws for gunnery and bombing practice and that by such bye-laws a certain danger zone was constituted; that the fishings extended over the danger zone; that it was provided by the bye-laws that firing would take place on the range as follows: from April to October, inclusive, on Mondays, Tuesdays, Thursdays and Fridays from 8:30 a. m. till 6:00 p. m., and from November to March, inclusive, on the same days from 9:30 a. m. to 3:30 p. m.; that it was provided that when firing took place, signals would be given by hoisting red flags and the danger zone during such time would be closed to the public, and that when it was closed no person could enter or remain thereon under penalty of fine. In 1928 the bombing range was extended and as so extended, covered % of the leased property. The trial court found and declared as “craved” by the tenant. The landlord then appealed to the court of session. The position of the landlord on appeal, among other things, was that it could not be maintained that the interference with the tenant’s rights resulting from the bye-laws amounted to total eviction, rei interitus, or frustration, entitling them to abandon the lease. The tenant contended on appeal that it was entitled to abandon the lease on any one of several grounds, one being that the interference resulting from the operation of the bye-laws amounted to rei interitus; a second ground being that the interference in question amounted to total eviction; and a third for abandonment being that there had been frustration. Separate opinions were written by Lord President Clyde, Lord Sands, Lord Blackburn and Lord Morison. Lord President Clyde was of the opinion that the case was precisely one of complete eviction, but encountered some trouble in applying the principle of rei interitus. He observed that the fishery became unworkable and incapable of possession as a fishery. Pie was of the opinion that the sheriff-substitute- reached a sound conclusion. Lord Sands felt it unnecessary to determine whether the case was one of eviction or of rei interitus, although he was disposed to regard it as falling under the latter, but was of the opinion that the appeal should be refused.. Lord Blackburn concluded that the tenants had suffered a complete eviction, entitling them to repudiate the lease and to refuse to pay the rent from the end of the fishing season 1926. Lord Mobison agreed that the tenants suffered an eviction and were released from the obligations in their lease. Neither the English decisions or the Scotch decisions are binding on this court. However, England is the original source of our property law and their decisions should be entitled to great respect in a case involving the application of fundamental principles of the common law relating to real property. Since the middle of the sixteenth century, Scotland has followed the Roman or civil law. Encyclopaedia of the Laws of Scotland, vol. 13, pages 74-78. The English authorities are the only ones ruling on the precise question in the instant case. We are of the opinion that the English cases on the subject are applicable to the facts of the case at bar and that they are consistent with the law of Illinois.

As a second point defendant urges that “the effect of the taking by the exercise of eminent domain on an entire parcel of leased property for temporary use for an indefinite period which may fall short of or exceed the remaining term of the lease and which renders the land incapable of occupation for any purpose consistent with the lease, operates to abate the rent pro tanto” and relies on Biddle v. Hussman, 23 Mo. 597; Board of Mississippi Levee Com’rs v. Johnson, 66 Miss. 248, 6 So. 199; Baltimore v. Latrohe, 101 Md. 621, 61 Atl. 203; Kingsland v. Clark, 24 Mo. 24; United Cigar Stores Co. v. Norwood, 124 Misc. 488, 208 N. Y. S. 420; Gardella v. Hagopian, 28 N. Y. S. (2d) 250; Nichols on Eminent Domain (2d Ed.), vol. 1, pp. 713-714. These authorities hold that if a part of the fee of the leased premises is condemned under eminent domain proceedings, the rent accruing afterwards ’is reduced in proportion to the amount taken. These cases do not state the law of this State. Our view is that the defendant does not have the right to have the rent suspended in whole or pro tanto during the period of the taking.

Under the 5th amendment to the Constitution of the United States both plaintiffs and defendant are guaranteed just compensation for the taking of whatever interests they have in the demised premises. As in our opinion the lease has not been terminated, defendant is guaranteed the right to recover the reasonable value of that portion of its leasehold estate which has been appropriated by the government in the pending condemnation proceedings in the federal court. Plaintiffs will have no claim for the reasonable value of the use of the premises against the government, since the government will not have appropriated any interest of plaintiffs in the premises. In the case of United States v. General Motors Corporation, 323 U. S. 373, the Supreme Court of the United States points out the elements which affect the market price to be paid for the temporary occupancy of a building in use under a long term lease. At the time the lease was made defendant was charged with notice that the government might, condemn the possession of the premises and it chose to take a lease which did not excuse it from the covenant to pay rent upon the contingency of such an event occurring. Being entitled to just compensation, there is no injustice in holding the defendant liable to pay the rent, even though it cannot actually occupy the leased premises.

For the reasons stated, the judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

Kiley and Lupe, JJ., concur.


source: Caselaw Access Project

author: Mr. Presiding Justice Burke

license: Public Domain

text:
    222 East Chestnut Street Corporation, Appellant, v. William H. Murphy, Appellee.
    Gen. No. 43,257.

      Heard in the third division of this court for the first district at the October term, 1944.
    Opinion filed March 21, 1945.
    Rehearing denied April 10, 1945. Released for publication April 10, 1945.
    Philip Conley, of Chicago, for appellant.
    Boyle, Morrissey & Wagner, of Chicago, for appellee ; William H. Murphy, pro se, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On February 12, 1942 the 222 East Chestnut Street Corporation, owner of an apartment building at that address in Chicago, and William H. Murphy, a lawyer, executed and delivered a lease for apartment 7-C on the 7th floor of that building for a term commencing May 1, 1942 and ending April 30, 1943 at a monthly rental of $135. The lease was on a printed form known as Chicago Beal Estate Board Form No. 10-C. It contains the following typewritten clause:

“It is agreed that apartment will be redecorated and ready for occupancy by May first, 1942. It is further agreed that the Lessor will close up kitchen opening off front hall and put in door, also Lessor agrees to remove bedroom wall fixture and plaster over same.”

Paragraphs 13, 14, 15,16 and 20 of the lease read:

“13. At the termination of this lease, by lapse of time or otherwise, Lessee shall yield up immediate possession to Lessor, and deliver all keys to Lessor or his agent at the place where rent is payable and failing so to do, shall pay as liquidated damages for the whole time such possession is withheld a sum equal to twice the amount of the rent herein reáerved, pro-rated and averaged per day of such withholding. The acceptance of any such liquidated damages by Lessor shall not constitute a waiver by Lessor of his right of re-entering as hereinafter set forth, nor shall any other act in apparent affirmance of the tenancy operate as a waiver of the right to terminate this lease or operate as an extension thereof, nor shall the provisions of this clause affect Lessor’s right, at his election, to treat Lessee as a holdover tenant under the terms hereof.
“14. If Lessee shall permit the premises to remain vacant or unoccupied for a period of ten days, or in the case of the breach of any covenant in this lease contained, Lessee’s right to the possession of the demised premises thereupon shall terminate without notice or demand, and the mere retention or possession thereafter by Lessee shall constitute a forcible detainer, and if the Lessor so elects, but not otherwise, this lease shall thereupon terminate, and upon the termination of Lessee’s right of possession, as aforesaid, whether this lease be terminated or not, Lessee agrees to surrender possession of the demised premises immediately, and thereby grants to Lessor full and free license to enter into and upon said premises or any part thereof, to take possession thereof with or without process of law, and to expel and remove Lessee or any other person who may be occupying said premises or any part thereof as a member of his family or otherwise, and Lessor may use such force in and about expelling and removing Lessee and said other person as may reasonably be necessary, and Lessor may re-possess himself of the said premises as of his former estate, but said entry of said premise shall not constitute a trespass or forcible entry or detainer, nor shall it cause a forfeiture of rents by virtue thereof, nor a waiver of any covenant, agreement or promise in said lease contained, to be performed by Lessee.
“15. Lessee hereby waives all notice of any election by Lessor hereunder, demand for rent; notice to quit, demand for possession, and any and all notices and demands which may or shall be required by any statute of this State relating to forcible entry and detainer, or to landlord and tenant, or any other statute or law.
“16. The acceptance of rent after it falls due, or after knowledge of any breach hereof by Lessee, or the giving of any notice or making any demand, whether according to any statutory provision or not, or any other act or waiver other than written waiver shall not be construed as a waiver of Lessor’s right to act without notice or demand or of any other right hereby given Lessor, or as an election not to proceed under the provisions of this lease.
“20. The rules and regulations contained on the reverse side hereof are hereby made a part of this lease and Lessee shall observe the same. Failure to keep and observe said rules will constitute a breach of the terms of this lease in the same manner as if contained herein as covenants, and a failure to observe the same, shall be of the same effect. Lessee shall keep and observe such further reasonable rules and regulations as may later be required by Lessor or his agent, which may be necessary for the proper and orderly care of the building of which the premises herein demised are a part. ”

Rule 7 of a set of “Rules and Regulations” printed on the' reverse side of the lease, reads: “Animals, birds or reptiles are not allowed on demised premises.” Lessee Went into possession of the premises. On February 23,1943 another lease for the apartment, between -the same parties, on the same form and for the same rent, for the term commencing May 1, 1943 and ending April 30, 1944, was signed and delivered. The only difference between the first lease and the second lease, except the term, was in the clause relating to decorating, alterations and repairs, which, in the second lease, reads:

“Lessor agrees to do the following work: Living room — wash walls, remove grease spots, enamel woodwork. Dressing room — Bedroom #1 — Paint walls and woodwork, calcimine ceiling. South Bathroom— Clean wallpaper, enamel woodwork, scrape off loose paint & repaint shower ceiling. Bedroom #2 — Clean wallpaper, repaint woodwork, calcimine ceiling. Passage to bedrooms — Wash walls, paint woodwork, calcimine ceiling. Kitchen — Enamel woodwork and wálls, ceiling. Floors — Buff and rewax floor borders, repair wood floor in dressing room. Screens — Repair defective screens. Window handles — Oil and adjust same. Reglaze — One light in bedroom, south.”

The tenant continued to occupy the premises. On February 17, 1944 the- landlord tendered to the tenant a third lease on the apartment, between the same parties, and for the same rent, for the term commencing May 1, 1944 and ending April 30, 1945. The only difference between the second lease and the tendered lease, except the term, was in a typewritten clause relating to decorating, which reads:

“It is agreed that annually during the term of this lease, the Lessor will clean and decorate the apartment hereby demised, and spend not to exceed One Hundred Thirty Five and No/100 Dollars ($135.00) per annum for such cleaning and decorating. In the event the cost of such cleaning and decorating exceeds One Hundred Thirty Five and No/100 Dollars ($135.00) per annum, the Lessee hereby agrees to pay such excess.”

Leo F. Hirschfeld, an architect, was agent for the landlord. There were conferences and an exchange of correspondence on the subject of whether the tenant would sign the lease. At the expiration of the term of the second lease, April 30, 1944, the tenant remained in possession. JHe paid the rent monthly. On May 13, 1944 the landlord served on the tenant a written notice that he quit and deliver up possession of the apartment on May 24, 1944, for the stated reason that he had a one-year written lease expiring April 30, 1944, that he refused upon demand to execute a “written extension” or new lease for a further term of like duration, that the landlord submitted to him a renewal lease for the term commencing May 1, 1944 and expiring April 30, 1945, that the “renewal lease, was otherwise on the same terms and conditions as the previous lease,” and that he refused to execute the renewal lease. On the same day a copy of the-notice was forwarded to the Bent Control Division of the Office of Price Administration at Chicago. He continued to occupy the apartment. On May 25, 1944 the 222 East Chestnut Street Corporation, the landlord, filed in the municipal court of Chicago a praecipe and statement of claim against William PI. Murphy, the tenant, alleging that it was entitled to possession of the apartment and that defendant unlawfully withheld possession. Pursuant to an order on a motion by defendant, plaintiff filed a bill of particulars asserting that its claim for possession of the premises was based upon the following: That plaintiff, pursuant to regulation of the Office of Price Administration, tendered to the defendant a renewal lease on the same terms and conditions of the previous lease, for the term commencing May 1, 1944 and expiring April 30, 1945, that defendant refused to execute the renewal lease, that pursuant to the regulation of the Office of Price Administration, plaintiff served him with a 10-day notice, setting out the grounds upon which it relied for removal or eviction, that a copy of the notice was forwarded to the Bent Control Division, Office of Price Administration, Chicago, within 24 hours after service thereof, and that defendant remained in possession after the expiration of his lease without lawful right. A trial before the court and a jury resulted in a verdict finding defendant not guilty. Motions by plaintiff for a directed verdict, for judgment notwithstanding the verdict and for a new trial were overruled, and judgment was entered on the verdict, from which plaintiff prosecutes this appeal. Defendant was not required to, nor did he, file any statement as to his defense. The record brought to this court does not have the opening statement, the argument to the jury, or the instructions given by the court or urged to be given by the parties. All presumptions are in favor of the judgment and the burden is upon appellant to point out the errors, if any, calling for reversal of the judgment.

Plaintiff asserts that defendant is not entitled to urge certain objections because he is limited to the theory of his case presented in the trial court. The law is well settled that a person cannot try a case on one theory in the trial court and on another theory in a court of review. Lewy v. Standard Plunger Elevator Co., 296 Ill. 295, 304; R. B. Hayward Co. v. Lundoff-Bicknell Co., 365 Ill. 537, 541; Crawford Realty & Development Corp. v. Woodlawn Trust & Savings Bank, 382 Ill. 354, 359. It is equally well settled that an appellee has the right to sustain the judgment upon any ground warranted by the record. Bullman v. Cooper, 362 Ill. 469, 471, 472: People v. Bradford, 372 Ill. 63, 65, 66; Vieceli v. Cummings, 322 Ill. App. 559, 563. In Becker v. Billings, 304 Ill. 190, the court said (205):

“An appellant or plaintiff in error who brings a case to an appellate court for review must indicate by his assignment of errors the errors of which he complains and his argument must be confined to the errors so assigned. An appellee or defendant in error is subject to no such requirement. He is entitled to sustain the decree of the trial and appellate courts by any argument and upon any basis appearing in the record which shows that the decree is right, even if he had not previously advanced such argument.”

Hazel v. Hoopeston-Danville Motor Bus Co., 310 Ill. 38, 51. Under the authorities the defendant has a right to sustain the judgment upon any ground warranted by the record. We have a right to assume that the arguments and the instructions related to the evidence and were pertinent to the points being urged by the respective parties, and that the jury followed the instructions and applied them to the evidence in considering and returning the verdict. The fact that the jury returned a verdict in favor of defendant indicates that they adopted the theory of the case argued to them by defendant. No errors are urged as to the instructions, except the court’s refusal to give a peremptory instruction for plaintiff. We assume that the jury followed the instructions that were given. Presumably, the instructions incorporated the respective theories of the parties, or error would be assigned thereon.

Arguing in support of the judgment, defendant states that the renewal lease was presented by the landlord at an “unreasonably early stage” for it to demand that the tenant sign. It will be observed that the first lease was signed February 12, 1942 and the second lease February 23,1943. The tendered lease is dated February 17, 1944, and was received by defendant the following day. It is obvious, from the course of dealings of the parties, that the tendering of the lease on February 18,1944 was not at an unreasonably early stage. The evidence establishes that plaintiff was ready and willing to execute the tendered lease during March and April. Defendant’s contention that the lease was tendered at an unreasonably early period is without merit.

We agree with plaintiff’s contention that unless the Federal Rent Control Act and the Office of Price Administration regulation necessitate a different result, it would be entitled to a directed verdict, and that defendant’s claim to possession is based entirely on the Federal Rent Control Act and the regulation promulgated thereunder. Pursuant to par. (b) of sec. 902, title 50, supp. 3, U. S. Code, 1941-1943, the administrator declared the Maximum Rent Regulation applicable to the Chicago defense rental area, which includes Cook county. Congress validly delegated to the administrator the power to issue rent regulations legislative in character within the framework of the legislative standards laid down. The court takes judicial notice of rent regulations for housing issued under the Act, which are reported in the federal register. Defendant maintains that the renewal lease tendered to him for signature increased his contractual obligations with plaintiff and bound him to pay for all decorating of his apartment that exceeded $135, notwithstanding plaintiff’s estimate indicated the cost to be less, and thereby violated the rent regulation. Section 6 (a) of the Maximum Rent Regulation for Housing Accommodations other than hotels or rooming houses, reads:

“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, nor shall any person attempt such removal or exclusion from possession, notwithstanding that such tenant has no lease or that his lease or other rental agreement has expired or otherwise terminated, unless: (1) The tenant, who had a written lease or other written rental agreement, has refused upon demand of the landlord to execute a written extension or renewal thereof for a further term of like duration but not in excess of one year but otherwise on the same terms and conditions as the previous lease or agreement,' except insofar as such terms and conditions are inconsistent with this Maximum Rent Regulation; . . .

The first lease did not specify the decorating to be done. It contemplated that the decorating would be done before the tenant moved in. The second lease mentions specific cleaning and decorating, also the repair of a floor in the dressing room, the repair of defective screens, oiling and adjusting window handles and the reglazing of a light of window glass in a bedroom window. The evidence shows that the cleaning and decorating were done by William S. Alt & Son in May 1943, and that plaintiff paid $126 therefor. The evidence also shows that in February 1944, at the time the execution of a third lease was under consideration, an employee of the agent accompanied a decorator named Frank Mejstrik to the apartment; that they went through the apartment with defendant and his wife; that the decorator made up an estimate sheet; and that the estimate sheet showed that the decorating requested by defendant would cost $116. Defendant states that a comparison of the second lease and the tendered lease shows that the tendered lease is not on the same terms and conditions as the previous lease. We cannot agree with this contention. The decorating-provided for in the previous lease cost $126 and the decorating contemplated to be done under the tendered lease would cost $116. The tendered lease obligates the landlord to pay for cleaning and decorating up to one month’s rent, or $135, and requires the tenant to pay for the cleaning and decorating should the cost exceed $135. We construe this clause as not giving the landlord the right to force the tenant to clean and decorate at a cost of more than $135, the tenant paying for the excess. The clause contemplates- that the tenant shall have a voice in determining the extent of the decorating and that he could be required to pay for the excess only should he insist on ordering cleaning and decorating costing in excess of $135. We agree with plaintiff that the tendered lease, including the clause relating to cleaning and decorating, was substantially the same as the previous lease, and that in that respect there was no violation of the regulation.

Defendant suggests that plaintiff’s action is motivated by a desire to “evict all dog-owning tenants,” that in plaintiff’s brief and bill of particulars, mention of the dog is avoided, and that this constitutes an attempted evasion of the Federal Rent Regulation. From a reading of the transcript of the testimony and the exhibits, it appears that during the two or three months prior to the expiration date of the second lease there was a “controversy regarding the dog.” Par. 20 of the lease makes the rules and regulations on the reverse side a part of the lease. This paragraph states that failure to keep and observe such rules shall constitute a breach of the terms of the lease in the same manner as if contained therein as covenants. Rule 7 of the rules and regulations provides that animals, birds or reptiles are not allowed on the demised premises. Sec. 6 (a) (3) of the regulations provides that so long as the tenant continues to pay the rent to which the landlord is entitled, no tenant shall be evicted unless he has violated a substantial obligation of his tenancy, other than an obligation to pay rent, and has continued or failed to cure such violation after written notice by the landlord that the violation cease. The first and second leases contained par. 20 and rule 7 relating to animals, reptiles and birds and the tendered lease contained the same paragraph and rule. In that respect the tendered lease was the same as the expiring lease. Plaintiff was required to specify in its bill of particulars the grounds on which it sought judgment and it did not specify that the tenant had violated rule 7, nor in its written notice - did plaintiff request that any alleged violation of rule 7 cease. We are not called upon to say whether the keeping of a' dog on the premises would be violating a substantial obligation of the tenant.

The lease tendered by plaintiff was “for a further term of like duration but not in excess of one year.” It was also on substantially "the same terms and conditions as the previous lease or agreement. The question arises as to whether the terms" and conditions of the tendered lease are inconsistent with the. Maximum Bent Begulation. Defendant maintains that pars. 13, 14, 15 and 16 are contrary to the Maximum Bent Begulation. Par. 13 requires yielding up of possession and paying as liquidated damages for the withholding period a sum equal to twice the amount of the rent reserved. Par. 15 contains a waiver on the part of the lessee of any notice to quit, demand for possession, and any and all demands which may or shall be required by any statute of Illinois relating to forcible entry and detainer, or to landlord and tenant, or any other statute or law. Pars. 14 and 16 relate to lessee vacating the premises without notice at landlord’s demand and in spite of payment of rent. Plaintiff points out that these paragraphs were in thé expiring lease, and states that if the rent control terminated before the expiration of the lease, then the common-law rights of the parties would be resumed and the provisions of the lease would beeomé effective. Plaintiff also states that with rent control in force, so far as the paragraphs conflicted with the rent control, they were invalid and need not be obeyed. Plaintiff also urges that defendant made no such point at the trial. It is clear and apparently undisputed that some if not all of the covenants in pars. 13, 14,15 and 16 are contrary to the regulation governing rent control. Sec. 1 (d) of the regulation reads:

“An agreement by the tenant to waive the benefit of any provision of this Maximum Rent Regulation is void.”

It might be argued that as the objectionable paragraphs in the tendered lease are void, that the tenant is not harmed. This argument, if valid, could also be presented as to a tendered lease which raised the rent beyond the maximum. For instance, if plaintiff had tendered a lease with the monthly rental raised from $135 to $150, would plaintiff be permitted to successfully argue that the defendant was not harmed because the increase would be void even though the lease were accepted by the tenant? If the landlord desires to take advantage of the provisions of sec. 6 (a) (1), he must demand that the tenant execute a written extension or renewal for a further term of like duration, but not in excess of one year and otherwise on the same terms and conditions as the previous lease or agreement ‘ except insofar as such terms and conditions are inconsistent with this Maximum Rent Regulation.” The burden was on plaintiff to demand that the tenant execute such an extension or renewal. The fact that the objectionable paragraphs were in the preceding lease does not make such paragraphs unobjectionable. If the tendered renewal lease contains material terms and conditions inconsistent with the regulation, then the failure or refusal of the tenant to execute such lease would not give the landlord the right to evict him. The tendered lease in the instant case contains terms and conditions inconsistent with the Maximum Rent Regulation and it cannot be said that the defendant refused upon demand to execute an extension or renewal for not less than a year of a lease that did not contain terms and conditions inconsistent with the Maximum Rent Regulation. It would be unreasonable to expect a tenant to execute a lease which is contrary to the Maximum Rent Regulation.

Sec. 6 (d) (1) reads:

“Every notice to a tenant to vacate or surrender possession of housing accommodations shall state the ground under this section upon which the landlord relies for removal or eviction of the tenant. A written copy of such notice shall be given to the area rent office within 24 hours after the notice is given to the tenant. ’ ’

The landlord complied with this paragraph of the regulation by giving written notice to the tenant on May 13, 1944 and by giving a written copy of such notice to the area rent office within 24 hours after notice'was given to the tenant. Sec. 6 (d) (2) reads:

“At the time of commencing any action to remove or evict a tenant, including an action based upon nonpayment of rent, the landlord shall give written notice thereof to the area rent office stating the title of the case, the number of the case where that is possible, the court in which it is filed, the name and address of the tenant, and the ground under his section on which removal or eviction is sought.”

These paragraphs require a notice before the action is commenced and á further notice at the time the action is commenced. At the time the action is commenced the landlord is required to give written notice to the area rent office, stating the title of the case, the number of the case where that is possible, the court in which it is filed, the name and address of the tenant and the ground “under this section on which removal or eviction is sought.” The record is silent as to whether the second notice contemplated was given at the time of commencing the action. Plaintiff points out that on the trial the notice served on May 13,1944, prior to the commencement of the suit, was admitted without objection. Plaintiff does not discuss any other notice. The record is silent as to whether any written notice was given the rent aréa office of the commencement of the suit, the number of the case and the other data required. Sec. 904, title 50, supp. 3, II. S. Code, provides that “it shall be unlawful, regardless of any . . . lease . . . to do or omit to do any act, in violation of any regulation or order under Section 2 . . . , or to offer, solicit, attempt, or agree to do any of the foregoing.” The regulation contemplates that during the present emergency the landlord shall give notice to the rent area office at the time of commencing action in forcible detainer so as to enable that office to effectually aid in the enforcement of the act. The regulation is binding on the tenant as well as the landlord. The tenant is not permitted to waive the giving of the notice. The requirement that the notice be given is undoubtedly one of the most important provisions of the regulation.

This is a case wherein a verdict should have been directed. ■ There was no question of fact for the jury to pass on. The construction of the leases was for the court. Plaintiff moved for a directed verdict. Defendant did not move for a directed verdict. Plaintiff, arguing that a party on appeal is limited to the theory of his case presented in the trial court, quotes the following from Notroma Corp. v. Miller, 292 Ill. App. 612, 619:

“In any event this defense was neither alleged in defendant’s answer to plaintiff’s complaint nor offered or even suggested upon the trial, and not having been presented in the trial court, cannot be urged or relied upon for the first time in a court of review.”

It will be observed that in that case the defendant did not allege his defense in his answer. In the instant case no answer was filed or required. In City of Mattoon v. Noyes, 218 Ill. 594, also cited by plaintiff, the city sued out a writ of error. It was the defendant below. The error was urged by the city and the burden was upon it to point out where it had raised the point below. There is sufficient in the record in the case at bar to support the judgment. Defendant may sustain the judgment upon any ground warranted by the record. Had defendant moved for a directed verdict, it would have been the duty of the trial judge to allow such motion. Nevertheless, the verdict returned by the jury and the judgment entered were the verdict and judgment he sought, and he has no cause to complain.

For the reasons stated, the judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

Kiley and Lupe, JJ., concur.


author: Mr. Justice Kiley

text:
    Anthony F. Parthun, Appellee, v. Elgin, Joliet and Eastern Railway Company, Appellant.
    Gen. No. 43,038.

      Heard in the third division of this court for the first district at the April term, 1944.
    Opinion filed March 21, 1945.
    Released for publication April 10, 1945.
    Knapp, Cushing, Hershberger & Stevenson, of Chicago, for appellant; Harlan L. Hackbert, of Chicago, of counsel.
    William Wallace McCallum and Marion J. Hannigan, both of Chicago, for appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an action under the Federal Employers ’ Liability Act (45 U. S. C., Chap. .2) with verdict and judgment for plaintiff in the amount of .$40,000. Defendant has appealed.

Plaintiff, employed by defendant as a locomotive fireman, was injured July 28, 1943, when he fell from the tender of a locomotive as he was pushing a waterspout into position after filling the water tank. The case went to the jury on Count 2, which alleged def end-ant ’s negligent violation of the Boiler Inspection Act (45 U. S. C., Chap. 1, Sec. 23), under which there is no question of contributory negligence. (45 U. S. C., Chap. 2, Sec. 53; Lilly v. Grand Trunk, 317 U. S. 481.) In addition to the general verdict of guilty, the jury found in pertinent special interrogatories that the board attached to the grab iron on the top of the tender gave way so as to cause plaintiff to be thrown from the top, and that coal was lying on the top of the tender at and immediately prior to the accident. Defendant moved to set aside the general and those special verdicts, to vacate the judgment and enter judgment for defendant notwithstanding the verdicts and for a new trial. The several motions were denied.

Defendant contends here that the verdict is excessive, and against the manifest weight of the evidence. Plaintiff claims that this court is bound by the decisions of the Federal Courts in cases of this kind and has no authority to weigh the evidence. Under section 56 of the F. E. L. Act, plaintiff had the right to sue in a Federal District Court or in a State Court. Miles v. Ill. Cen. R. R. Co., 315 U. S. 698. Having chosen courts of this State, he must prosecute his action in accordance with our modes of procedure (Minn. & St. Louis R. R. Co. v. Bombolis, 241 U. S. 211), and we have authority to weigh the evidence to determine whether the verdict should stand or whether it should be set aside and the cause retried. (Chap. 110, Par. 216, Sub-par. (3) b, Ill. Rev. Stats. [Jones Ill. Stats. Ann. 104.092, subpar. (3) b]; Corcoran v. City of Chicago, 373 Ill. 567; and Mitchell v. L. & N. R. R. Co., 375 Ill. 545.) In Tennant v. Peoria & Pekin Union Railway Co., 321 U. S. 29, relied upon by plaintiff, suit was filed in a Federal District Court and the case is, therefore, not applicable.

The engine and tender had been stopped, facing east, on the track next north of, and opposite to, the water pipe. The coal bin serving the locomotive is located in the front part of the tender, and its sides and rear rise 3 or 4 feet above the surface of the water tank comprising the balance of the tender. Plaintiff, after turning the water pipe and spout north into position to fill the tank, climbed by steps on the sloping surface to the level top surface of the tender, in the center of which is the raised mouth of the water tank. Along each side of the coal bin is a runway, and about 6 inches above each side of the bin is a grab bar of iron pipe which extends the length of the coal bin, about 5 or 6 feet, held to its side by 4 upright brackets. To increase the capacity of the coal bin, the spaces between the grab bar and tops of the sides of the coal bin were partially filled by wooden planks fastened by wire. Plaintiff, after filling the tank, started walking east on the right runway toward the locomotive, pushing the spout ahead of him, toward its normal position facing east and holding the grab bar with his left hand. There is no dispute that, while so engaged, he fell from the tender and was injured. The question is whether he fell as a result of an unsafe condition of the top of the tender, or only as a result of losing his balance while pushing the spout. Defendant says that because plaintiff is so directly contradicted by its witnesses and because plaintiff’s testimony of the cause of his fall on cross-examination is so inconsistent with and contradictory to his testimony on direct examination, and, moreover, because of the physical facts concerning the fall, the verdict is against the manifest weight of the evidence upon the question of causation.

Plaintiff said on direct examination that he fell after he tripped on some coal on the runway, when the wire and board gave way and he lost his grip on the grab bar. On cross-examination he said the spout was harder to turn to the east than west and harder to move that day than previously; that the board which gave way was fastened to the grab iron with loops of wire which slid back and forth with the board; that the wire and board “let go” and “didn’t come off all the way,” but “ came loose” and the “wire came off” and the “board came loose of the wire” and “slid off that grab iron,” and “the wire was looped over the handrail” and the loop “slipped off the grab iron” because “it wasn’t a complete loop” but “partly opened” and the wire “partly around the handrail came loose.” Defendant’s argument of inconsistency and contradiction is not borne out by a reading of the complete record of the testimony on this point. We think the jury was justified in finding that one wire was only partially looped over the handrail, so that it was open at the top, and that the top ends widened and slid off- the bar — not' off the end of the grab bar which defendant argues was impossible as a physical fact because of the location of the upright brackets, but under the grab bar — as a consequence of which the board- became loose. Such an inference was not physically impossible. The engineer contradicted plaintiff’s story of the circumstances surrounding his fall, saying that plaintiff did not have a hold of the grab bar when he pushed the spout with his right hand, lost his balance and fell; and he and another witness testified they examined the board and wires after plaintiff fell and found their positions normal, with no evidence that a loop or the board had given way. This contradictory evidence presented a question of credibility for the jury. The jury, furthermore, having made the previous finding, could also find that the action of the wire and board broke plaintiff’s grasp on the grab bar. There can be no doubt from the testimony, as well as from the photographs in evidence, that plaintiff’s hold on the grab bar could not have been secure because of the presence of the board between it and the top of the side of the coal bin, which made it impossible for him to use his fingers and thumb beneath the grab bar in attaining full grip. The board nullified the essential purpose of the grab bar. Accordingly, whether- he pushed too hard, as the engineer said and as defendant argues, is somewhat difficult to determine if, when he “pushed,” he was holding the grab bar. A full grip on the grab bar would have enabled him to push much harder with less danger. The engineer said the board did not prevent a full hold on the grab bar, but it is clear from the photographs that the opposite is true. It is our conclusion that the finding that the board gave way so as to cause plaintiff’s fall was justified.

Plaintiff said on direct examination that he tripped on coal on the runway. On cross-examination he said there were three or four shovel fulls of coal on the runway where he was standing; that it had rolled off the overfilled coal bin, but not while he was standing there; that it was there when he got up on top of the tender, though he did not notice it when he was filling the tank, and saw it first when he tripped; that although normally his first function at the start of each day was to “look over” the top of the tender to see whether it was clean, the day of the injury there was no time to do so; that he had looked on both sides of the tender and saw nothing and, so far as -he could see, the top of the tender was clear; that at noon when he climbed up to fill the tank the top was clear as far as he noticed; that he looked at the right side and it must have been clean and that the runway was clean at the time he looked. We have examined closely the transcript of testimony on this point and, while some of plaintiff’s answers may be confusing, we believe it is plain that he meant that, so far as he saw or noticed, both in the morning and at noon, there was no coal on the runway but that it must have been there, nevertheless, since he tripped on it and saw it as he fell. The engineer and defendant’s road foreman of engineers both testified that they examined the top of the tender after plaintiff fell and saw no coal, and the engineer says that immediately before and at the time plaintiff fell there was no coal on the runway. This defense testimony also presented the question of credibility to the jury:

Defendant says there is no explanation where the coal came from. The engineer says that plaintiff cleaned the runways with a hose in the morning. There is the inference that the coal could not have fallen to the runway during the watering process. Photographs show coal piled in the bin to a point about a foot above the grab bar, and the engineer testified that his engine was bumping freight cars during the morning, and there is testimony that the board which partially filled the space below the grab bar slipped back and forth. These facts and legal inferences show how the coal might have fallen to the runway. Defendant urges a point, bearing on this question, based on argument of plaintiff’s attorneys to the jury. The argument is not in the record.

It is argued that, falling face forward as he did, plaintiff could hardly have seen the details of the wire and board giving away, or the coal on the runway. The average juryman’s observations of his own or other’s falls, would be sufficient basis for belief of enough of the details of plaintiff’s story to warrant the jury’s verdict. Defendant says plaintiff would not have fallen feet first if he lost his grip or tripped on the coal, and that if he fell head or body first, the spout would have prevented his fall. The “breaking of plaintiff’s grip and his tripping” could easily combine so as to cause his feet to slide from under him. There is more room for arguing that, since he fell feet first, as both plaintiff and the engineer say, he probably did not lose his balance, for, in balancing, feet are the fulcrum. If he lost balance it would seem he would have had to jump in order to land as he did, with his body erect and: on his feet. Since there was evidence to show that the board and wire gave wray and that there was coal on the runway, the question whether plaintiff fell because of those factors, as he says, or because he, while holding to the grab bar, lost his balance in pushing the spout, as the engineer says, was a question for the jury. The jury found plaintiff’s story more reasonable and we cannot say that it should not have done so. Corcoran v. City of Chicago, 373 Ill. 567, 579, 580. We believe the facts found by the jury in their answers to the special interrogatories constituted “unnecessary peril to life and limb” and a violation of the Boiler Inspection Act. Lilly v. Grand Trunk Ry. Co., 317 U. S. 481.

At the time of his, injury plaintiff was 5 feet 4 inches tall and weighed 210 pounds. When he fell he landed principally on his right foot, felt severe pain and heard the bones break. He was first taken to Carnegie Steel Company’s emergency hospital where his' right leg and foot were X-rayed and placed in a cast from his knee to his toes. He was then taken to Mercy Hospital in Gary, Indiana, where further X-rays were taken 15 days later, and' where he remained until August 21st. A week and a half after he came home he removed the cast himself with a hack saw. No doctor came to see him at home, but a few days after his home-coming the Company ambulance came to take him to see Dr. Donchess at Mercy Hospital, but plaintiff refused to go, saying he did not want to go to the Company doctor. He later told a representative of defendant that the Company doctors were “butchers,” and he wanted nothing to do with them. Three weeks after he returned home, plaintiff’s leg was examined and X-rayed, and two days later Dr. Turner operated and placed metal pins through the tibia above the anide and through the heel bone and placed a new cast on his leg. Plaintiff remained in the American Hospital 10 or 11 days before returning home. At home he remained in bed three weeks with severe continuous pain, and again removed the cast himself. He returned to Dr. Turner the next day, the pins were removed and the leg bandaged and taped. Removal of the pins left open wounds which had not healed at the time of the' trial, in December 1943. Up to the time of the trial he was still using crutches, and could not wear a shoe. He was very nervous, had trouble sleeping and was in constant pain, with frequent vomiting and free perspiration.

Two medical witnesses testified for each party: for the plaintiff Dr. Turner, who operated on plaintiff’s foot, and Dr. Mitchell, who examined him at the time of the trial; for defendant Dr. Donchess, who attended plaintiff at Mercy Hospital, and Dr. Bennett, defendant’s chief surgeon. It appears from the testimony of these witnesses that plaintiff’s right foot was badly damaged. The injuries included a badly com-minuted fracture of the heel bone with spreading and widening of the fragments; fractures of the second, third and fourth metatarsal bones with the ends broken off and displaced to the sides; fracture of the cuboid, the bone next to the rear of the fourth and fifth metatarsal; and impaction of the ankle and heel bones “obliterating” the joint between them. Defendant argues that plaintiff’s conduct in removing the casts contributed to the condition of his foot at the time of the trial. Plaintiff did not act prudently in removing the casts from his leg, even though he had been suffering great pain; neither was he prudent in failing to see a doctor during the period between his departure from Mercy Hospital and his first visit to Dr. Turner. There is no denial of the testimony that defendant’s representative visited plaintiff after the removal of the first cast and before plaintiff saw Dr. Turner, and that during the visit plaintiff had stood and walked several steps unsupported by crutches; nor that while in Mercy Hospital, over warnings by the doctors, he permitted his right leg to hang downward over the bed and insisted on leaving his bed instead of using a bed pan. There is, however, testimony of plaintiff’s medical witnesses, supported by the X-rays taken just before and after the operation by Dr. Turner, that plaintiff’s foot was in substantially the same condition as it was in Mercy Hospital after defendant’s doctors had reduced the fractures. Dr. Bennett testified that the X-rays taken after plaintiff left Mercy Hospital showed a progressively abnormal condition. Dr. Turner testified that his operation was not successful because of callus formations, and that he thought it would have been possible to get better alignment of the fractured bones had Dr. Donchess operated immediately after the injury. He-disagreed with Dr. Turner that calcium deposits prevented the success of the' operation, but granted that scar tissue might have had that effect. This question was for the jury and we would not be warranted in setting aside a finding on the foregoing testimony that plaintiff’s imprudence had not substantially affected the condition of his foot.

There can be no doubt from the foregoing that up to the time of the trial plaintiff had suffered great pain. Defendant argues that at the time of the trial plaintiff’s foot was still in the process of healing and that, according to Dr. Bennett, plaintiff’s pain would be gone within a period of about 8 months. The evidence showed that sharp spurs had resulted from adjustment and maladjustment of fragments and fractures, and X-rays, taken at the time of the trial show the heel bone was “angulated to one side” and the fractured part was pressing downward to form the sharp spur. Plaintiff argues that he will continue to suffer pain throughout his life and" will be able tó walk only with the aid of crutches because walking with a cane brings discomfort and swelling.- Dr. Bennett testified that these abnormalities-, both on the side and undersurfaces of the heel would smooth out with time. Dr. Turner said that plaintiff’s condition was permanent; that the spurs might be removed by operation, but with no certainty that they might not reform, and that it could not be said how future calcium deposits would develop. He said that these abnormalities caused pain in walking and would continue to do so, while Dr. Mitchell said that normal weight-bearing might avoid the principal source of irritation beneath the heel. Dr. Bennett said the joint between the ankle and the heel bones of plaintiff’s right foot would probably be obliterated and the joint fixed so as to limit later motion. Dr. Mitchell’s opinion was that there was two-thirds loss of motion in the foot. These issues of fact were for the jury upon the question of future pain and suffering.

At the time of the trial plaintiff had lost 4% or 5 months’ work, and Dr. Bennett estimated that he would be able to resume work as a Diesel engine fireman in about 8 months. Thus, defendant argues that, since plaintiff’s salary was in the neighborhood of $250 per month, his maximum loss of earnings would proximate $3,000 and no more. Plaintiff’s medical witnesses, after giving opinions that the damage to his right foot was permanent, testified that he would be unable to do the manual duties such as shoveling coal into the firebox, filling the tender with water and the normal work on a locomotive, as well as climbing on and off the engine and tender and standing on his feet shoveling coal. Defendant presented evidence to show that plaintiff was 57 or 58 on the seniority list of the railroad; that the firemen on Diesel engines had only to pass signals, watch movement around curves and that, outside of getting a jug of water, no other duties were necessary to supply the engine; and that no manual labor of any other kind was heeded except to sweep out the cab of the locomotive. Dr. Bennett testified that plaintiff in 6 or 8 months from the time of the trial could carry on the duties of a fireman on a Diesel engine, consisting of those duties referred to. Defendant argues that there is no rebuttal to controvert the testimony that plaintiff could resume his work as a fireman on a Diesel engine. The jury may have concluded that since the plaintiff’s medical witnesses said plaintiff could not stand on his feet to shovel coal, he could not stand on them to sweep out the cab, and that he would have to climb in and out of the Diesel engine cab as well as out of a steam locomotive cab. Defendant cites several cases in which verdicts of much less size were approved, and in some, for injuries which were more severe. Suffice to say that in those cases the jury brought in the lesser verdicts. Plaintiff argues that the jury could reasonably compute the loss of future earnings by applying their common observation that plaintiff would live to be 70 years of age and have 19 years more employment. There was no actuarial evidence introduced. He likewise argues, and with support from Avance v. Thompson, 320 Ill. App. 406, that verdicts today should be considered in the light of increased living costs. He relies strongly upon Taylor v. A. T. & S. F. Ry. Co., 292 Ill. App. 457, wherein there was a stipulation that the plaintiff was totally and permanently disabled from performing heavy manual labor such as is involved in the work of a railroad engineer or fireman. Plaintiff there was 49 years old, and as a result of his injuries his bowels and bladder had been paralyzed and blood and water had discharged from his.ear; since the train collision which caused his injuries he had been in many hospitals and finally had to wear a neck brace, without which his head would fall over to the left; he could not dress, undress or shave, and his condition would grow gradually worse. The verdict in that case was reduced from $75,000 to $58,80‘0 the latter part of 1937.

After a careful consideration of the instant case we are satisfied of defendant’s liability, but we believe the verdict is excessive. It is our opinion that adequate compensation for the plaintiff is $22,500. Upon plaintiff filing a remittitur of $17,500 in this court within ten days, the judgment will be affirmed, otherwise the judgment will be reversed and the cause remanded for a trial on the question of damages alone.

Judgment affirmed on remittitur of $17,500, otherwise reversed and remanded on question of damages.

Burke, P. J., and Lupe, J., concur.