author: Mr, Justice Hebel

text:
    Walter Elliott, Appellant, v. Illinois Central Railroad Company, Appellee.
    Gen. No. 42,233.
    Opinion filed March 10, 1943.
    Gilbert T. Graham and Raymond W. Beach, both of Chicago, for appellant.
    John W. Freels and Herbert J. Deany, both of Chicago, for appellee; Vernon W. Foster and Charles A. Helsell, both of Chicago, of counsel.
   Mr, Justice Hebel

delivered the opinion of the court.

This is an appeal by Walter Elliott, plaintiff, from an order entered by the court on defendant’s motion to strike the complaint of the plaintiff for insufficiency, which was sustained, whereupon the plaintiff elected to stand on his complaint. Judgment was rendered for the defendant and against the plaintiff.

Plaintiff filed his complaint consisting of two counts. Count 1 is an action for injuries to the plaintiff, as a result of the negligence of the defendant in maintaining one of the methods of entrance to defendant’s station, when being used by the plaintiff intending to become a passenger of the defendant. Count 2 is the same as count 1 except that it alleges plaintiff was a passenger, instead of intending to become a passenger, and charges the defendant with the degree of care a common carrier must exercise in behalf of passengers.

The defendant filed a motion to strike the complaint, claiming each of the counts of the complaint are insufficient in law to charge a cause of action against the defendant.

Count 1 of the complaint alleges:

1. That the defendant before, at and after the accident was a common carrier of passengers for hire, operating a street railroad at street level, running east and west on 71st street between Stony Island and Blackstone avenues. There are two public roadways on 71st street, one on each side of defendant’s tracks. Westbound trains use the north track, and eastbound trains use the south track.

2. The defendant used and maintained a wooden platform between the tracks, the approximate height of the floor of the cars, the platform extending from Stony Island avenue to Blackstone avenue. The Blackstone avenue station is at or near the west end of the platform, steps at or near the west end of the platform extend from the platform down to the street. Blackstone avenue runs south but not north of 71st street. At the bottom of the steps there is a crosswalk between the inner curbs of the two 71st street public roadways, the east sidewalk on Blackstone avenue is . a considerable distance east of the crosswalk.

3. That before and at the time of the accident there were traffic or train gates at the intersection of Blackstone avenue and Bast 71st street, operated by the defendant, the traffic or train gate south of the platform and on the east side of Blackstone avenue is at-

. tached to a post or support between the south rail of the eastbound tracks and the north curb of the South 71st street roadway. When the gate is lowered the west end extends across the crosswalk or sidewalk south of the tracks and halfway across Blackstone avenue, and a short extension of the traffic or train gate extends east of the post o'r support between the south rail of the south track and the north curb of the south roadway. There is a traffic or train gate on the opposite corner, and when both gates are lowered they are opposite each other and a short distance apart and when trains are at the platform receiving and discharging passengers, and before departing, the gates are lowered.

4. That before, at and after the accident on weekdays between 8:15 and 9:15 a. m. 10 to 15 trains arrived at, and departed from the platform on the north tracks, and 5 to 10 trains on the south tracks, and during this hour the traffic or train gates were down . a considerable portion of the time.

5. For many years before and at the time of the accident large numbers of people intending to become passengers of defendant entered this station between the hours of 8:15 and 9:15 a. m. when said traffic or train gates were lowered, by walking from the north curb of the South 71st street roadway, around the short east end of the traffic or train gates, across the south track and then upon the sidewalk or crosswalk west of the steps and then up the steps, through said station, and on the platform, boarding defendant’s trains; defendant permitted, acquiesced in, and consented to this method or manner of entering the station and platform; plaintiff had been entering the station in this manner, when the gates were down, for two years prior to September 5, 1940; this manner or custom of entering the station was certain, uniform, general, and continuous, and was well known to both the plaintiff and the defendant; for two years prior thereto and at the time of the injury to the plaintiff, this was the general mode, and people intending to become passengers made habitual use of this manner of ingress to said station and platform; defendant encouraged and induced people intending to become passengers of defendant to use this manner of ingress to the station by- holding trains at the platform after gates were down while such persons went around the east end of the traffic or train gate and -across said south track and into the station, all of this being well known to the plaintiff and the defendant; on September 5, 1940, said plaintiff had a ticket of defendant’s with a number of unused rides; plaintiff arrived at the Blackstone avenue station between 8:15 and 9:15 a. m.; the traffic or train gates were down; plaintiff proceeded to enter the station by walking around the east end of the traffic or train gate, and across the southbound track, and then intended to proceed up the steps, plaintiff intending to become a passenger of defendant, this being one of the usual and customary methods of entering the station as above set forth; that plaintiff immediately before and at the time he was injured was .in the exercise of ordinary care and caution for his own safety.

6. At the time of the accident, defendant, its agents, or servants, did one or more of the following acts, and failed to perform its duty in one or more of the following respects, and caused certain injuries to plaintiff:

(a) Negligently and carelessly filled' the area between the north curb of the south roadway of 71st street and the south side of the platform at or near East 71st street and South Blackstone avenue, which includes the south track of said defendant, adjoining and immediately east of the east end of said traffic gate or train gate, with track or railroad ballast, a considerable portion of which was pieces of loose rocks and stones, creating an unsafe and dangerous condition for the use of people intending to become passengers of said defendant when using said method of ingress to said Blackstone avenue station.

(b) Negligently failed to provide a safe passageway or entrance to Blackstone avenue station when entering the station when the gates were lowered, by going around the east end of the traffic gate or train gate situated at or near the southwest corner of said platform, said place and manner of entrance being in an unsafe and dangerous condition for the use of persons intending to become passengers, which was or should have been known by defendant by the use of due care and diligence.

(c) Negligently and carelessly failed and neglected to provide safe and suitable entrances for the use of persons intending to become passengers of the defendant at the Blackstone avenue station.

7. As a direct and proximate result of the negligence and carelessness of the defendant, and of the failure of the defendant to discharge its duty to plaintiff, plaintiff on September 5, 1940, with the intention of becoming a passenger of defendant, proceeded to enter said Blackstone' avenue station in accordance with the manner and custom of entering the station as encouraged and induced by defendant, by starting-east of the east end of said traffic or train gate and while walking across the area between the north curb of said South 71st street roadway and the southwest corner of said platform at or near East 71st street and Blackstone avenue, necessarily and unavoidably slipped and stumbled over or upon certain pieces of loose rock or stones so negligently placed and allowed ■ to remain by the defendant in said area, and severely injured his leg and ankle, and was otherwise injured.

8. The complaint then sets out the damages of the plaintiff.

Count 2 is the same as count 1 except that it alleges that the plaintiff was a passenger instead of alleging the plaintiff intended to become a passenger and charges the defendant must exercise the highest degree of care by reason of plaintiff being a passenger.

The motion to strike asserts that the counts of the complaint are substantially insufficient in law to charge a cause of action.

The motion alleges that count 1, subparagraphs (a), (b) and (c) of paragraph 6 contain the only language which purports to allege any negligence or violation of duty on behalf of defendant, and are insufficient in the following particulars:

1. Subparagraphs (a) and (b) of paragraph 6 do not contain an actionable charge of negligence because there was no duty on defendant to provide a safe convenient walkway down its track so that pedestrians could ignore and go around the crossing gates lowered as a safety measure for the express purpose of preventing their presence on the track while trains were moving on or about to move thereover.

2. The crossing gates were erected at the regular crosswalk over the track to prevent people from crossing over or going upon the track when trains were moving into or out of the station. Defendant’s failure to construct a smooth walkway around the gate as an invitation to people to ignore the warning given by the gates when lowered was not negligence.

3. There is no allegation in subparagraphs (a) and (b) that the crosswalk was not smooth, wide, adequate or sufficient in every respect. Except for the space so set aside as a crosswalk, there was no duty on defendant to fill in between its tracks so that people desiring to ignore the lowered gates could walk around them.

4. While defendant owed a duty to people crossing' its tracks on the regular crosswalk, it did not owe a similar duty to people who were not on the crosswalk, but who for their own convenience chose to walk along the tracks rather than merely cross them.

5. In walking along the tracks at point other than the crosswalk in an effort to defeat the safety purpose of the crossing gates lowered to prevent his entrance on the track, plaintiff was a trespasser to whom defendant owed no duty except not to injure him wil- ■ fully.

6. There was no duty as alleged in subparagraph 6 (b) to provide a safe passageway to go around the lowered traffic gate.

7. The complaint charges that plaintiff .had used this crossing almost daily for two years. If, therefore, the situation provided an unsafe and dangerous condition, as alleged in subparagraph 6 (b) it was just as obvious to the plaintiff as it was to the defend-1 ant, and if plaintiff was injured as a result of stepping into a clearly dangerous situation, his own negligence in doing so was the sole proximate cause of his injuries.

8. The allegations of subparagraph 6 (c) are mere legal conclusions and are so general, indefinite, vague and uncertain as not to advise this defendant of the nature of plaintiff’s alleged cause of action or in what particular the defendant failed or neglected to provide safe and suitable entrances for the use of persons intending to become passengers.

We find that part of the motion to strike in italics alleges facts not pleaded in the complaint. New matter- or facts cannot be pleaded in a motion to strike.

The motion to strike count 2 adopts the same grounds as the motion to strike count 1.

Then as additional reasons it is alleged that each of said subparagraphs purports, to place a greater burden upon the defendant than does the law. Each refers to the “highest degree of care in view of the mode of conveyance adopted consistent with' the practical operation of its road and the conduct of its business as a common carrier.”. Since plaintiff purports to allege only negligence in the maintenance of the station building and its environs, and does not allege that he was injured in any way as the result of transportation functions of defendant, the defendant only owed him the duty of ordinary not the highest degree ■of care, as alleged in -each of these three subparagraphs.

Plaintiff’s theory upon the questions that are involved in this'case is that the way used by the plaintiff at the time of his injuries was at that time and for a long time prior thereto had been a way or path in general, continuous and habitual use by the public intending to become passengers on the defendant’s trains. This way was on the premises of the defendant and was customarily used by the public as an approach to the platform of the defendant’s station. This use of the way by the public was well known to plaintiff and the defendant, and the defendant consented, invited, induced and encouraged persons intending to become passengers, or passengers, to use this way of approach to this passenger platform while holding its trains while prospective passengers, or passengers, were making their way to the trains over this passageway. That under such circumstances it became and was the duty of the defendant to keep this way reasonably safe for the use of passengers and persons intending to become passengers of the defendant.

The plaintiff’s theory is also that the reason the defendant lowered the traffic gates as trains were about to pass Blackstone avenue was not to prevent passengers, or prospective passengers, from entering the station in the manner alleged in the complaint; if this had been one of the original purposes of the traffic gates, it had long since been abandoned by the defendant ; that the defendant is charged with actionable negligence in the complaint, the plaintiff was not guilty of contributory negligence in using this regular and customary method of entrance, and was not a trespasser when entering or about to enter the defendant’s station as alleged in the complaint, and the complaint states a good cause of action.

The defendant’s theory is that plaintiff was a trespasser, and defendant owed plaintiff no duty except not to injure him wilfully, and that notwithstanding the daily, continuous use of this way of entrance to the defendant’s station, defendant owed no duty to the public regardless of the condition of this way of entrance and was under no duty to make this way safe. When defendant lowered the gates, it discharged its legal obligations to the public intending to enter its station. The defendant also contends the plaintiff was walking along the tracks and not across the tracks; the plaintiff was guilty of contributory negligence when using this passageway to their station on September 5, 1940, although there is no allegation in the complaint that the then condition was in existence prior to September 5, 1940.

Plaintiff contends that inasmuch as this case came before the court on the complaint and motion to strike, there being no evidence introduced or considered at the trial, it is ■ only necessary to consider if the complaint states a cause of action, and the legal ground in the motion to strike stating why the complaint does not state a cause of action.

Plaintiff contends that the defendant, in its motion to strike, in addition to setting out alleged legal reasons why the complaint does not state a good cause of action, pleads certain facts not pleaded in the complaint, and that such facts cannot be considered in a motion to strike in passing upon the issues in this case.

There is no allegation in the complaint that the crossing gates were erected at the regular crosswalk over the track to prevent people from crossing over or upon the track when trains were moving into or out of the station, as alleged in paragraph 2 of the motion to strike. If the gates were originally erected for that purpose, this purpose had been abandoned by the defendant when it permitted the public to walk around the end of the gate as one of the methods of entering its Blackstone avenue station. At the time of the accident, plaintiff suggests, if he were permitted to indulge in assumption of facts, it appears that the crossing gates were used to prevent vehicle traffic from crossing over the tracks when trains were moving into or out of the station, and further urges that there is no allegation in the complaint that people for their own convenience chose to walk along the tracks rather than merely across them as alleged in paragraph 4 of the motion to strike. The allegations in the complaint are that they crossed the tracks for the purpose of entering the defendant’s station. There is no allegation in the complaint that people walked along the. tracks at a point other than the crosswalk in an effort to defeat the safety purpose of the crossing gates lowered to prevent entrance on the track, as alleged in paragraph 5 of the motion to strike. There is no allegation in the complaint as to why the gates were lowered as heretofore set forth, and, further, there is no allegation in paragraph 6 of the complaint that the dangerous condition of the passageway was in existence for two years prior to the time of the accident, or that this dangerous condition had existed at any time prior to the accident as defendant contends in paragraph 7 of its motion to strike. Plaintiff contends that the facts alleged in the complaint, all of which are admitted by the motion to strike, set forth a good cause of action.

It is understood that section 45 of the Civil Practice Act [Jones 111. Stats. Ann. 104.045] provides that all objections to pleading heretofore raised by demurrer shall be raised by motion. There is no question that a motion to strike is the same as a demurrer under the former practice. Plaintiff cites, in support of his theory that the allegations of fact contained in the demurrer will be disregarded, Jennings v. County of Peoria, 196 Ill. App. 195, and urges that it is not the province of a demurrer to set out new facts, and that a demurrer involves only such facts as are alleged in the pleadings demurred to, and cites Wood v. Papendick, 268 Ill. 383. It is further contended that in the instant case, in passing on the sufficiency of the complaint, the court can only consider the facts alleged in the complaint and whether the facts are sufficient in law to state a cause of action, any allegation of fact being new matter contained in a motion to strike should be disregarded.

The defendant, in the reply to' the statement which is made by the plaintiff, admits that a motion to strike, being similar to the former demurrer, cannot set out new facts, and further suggests that, though no such claim was made in the court below, counsel for plaintiff now complain that defendant’s motion to strike pleaded new facts and sets out the alleged new facts in italics. There were no new facts pleaded in the motion to strike. The statements in italics refer to the gates as having been lowered to prevent people crossing the tracks when trains were moving into or out of the station and referred to any persons going around the lowered gates as walking along the tracks, and answers this suggestion of the plaintiff by saying that the statements that are criticized are both based literally on the facts pleaded by the plaintiff. Reference is made 11 times in count 1 alone to “traffic or train’’’ gates which were lowered when trains were at the platform receiving or discharging passengers. The complaint describes in detail the gate on the southeast corner around which plaintiff says he was going when he fell. This gate is attached to a post south of the rail and east of the crosswalk or sidewalk. The west end of the gate extends across the sidewalk leading to the station steps and half way across the roadway of Blackstone avenue. There is a short arm of the gate extending east of the post. Since the complaint charges that the gates extend across the sidewalk as well as the roadway, it is hardly pleading new facts to say it was intended to prevent the people from using the sidewalk when the trains were moving into and out of the station. Plaintiff says to that, that it might be assumed that the gates were intended to prevent vehicle traffic from crossing the tracks; the defendant contends, however, that vehicles were not mentioned at any time in plaintiff’s complaint, but, as noted above, references are constantly made to “traffic gates” which extended across and blocked the sidewalk.

The plaintiff suggests on the points that are involved in this litigation, that if one method of entrance to and exit from the station is provided by the carrier, and there is also a second exit and entrance in use by custom and usage for a considerable period of time, and the carrier has knowledge of this and acquiesces in such use, the carrier must use ordinary care and caution to keep the second method of exit and entrance reasonably safe. The plaintiff, in support of the suggestion that was offered, cites the case of Wood v. Illinois Cent. R. Co., 167 Ill. App. 644. In that case the accident happened at 39th street.on a Michigan Central train. The tracks and station were in charge of the Illinois Central. The station was poorly lighted. The trains stopped to allow passengers of through trains to alight and pass over a long unlighted platform. There was a suburban train going south and the Michigan Central train was going north. The plaintiff, a passenger, stepped' off the Michigan Central train while still in motion before it arrived at the platform and was injured. It was dark, the plaintiff did not know the train was moving and the train proceeded 50 feet before it stopped. The court in that case held that the railroad company was under no obligation to light its entire right of way but if it habitually stopped its trains at some point where there was no station and there were no proper provisions for safety and injuries resulted from failure to light the place at which passengers were authorized by invitation, express or implied, to alight, this is a question for the jury. Upon that theory the plaintiff herein suggests that in passing upon like questions such questions are questions for the jury to pass upon in determining the issues as between the parties.

Then again plaintiff cites the case of Chicago Terminal Transfer R. Co. v. Schmelling, 197 Ill. 619. In that case the plaintiff stepped from the train on the tracks and was about to proceed across the tracks as he had been doing for a year and a half before.the accident. Another railroad crossed the tracks just south of where the plaintiff alighted, the tracks curved to the north and it was difficult to see trains coming from the north, and the plaintiff was struck by the southbound train. The plaintiff recovered from the injuries which were sustained. The court in that case stated that it was the duty of the defendant to provide a safe means of access to and from the defendant’s station, stating “The tracks around the platform or places for entering and leaving the cars .... should be made safe and kept so.”

Plaintiff further cites a number of cases upon like questions and it would appear from his suggestion that by the above cases, and textbooks, it is clearly established that when another method of entrance, on the carriers premises, is recognized and used as pleaded in the complaint, it is the duty of the carrier to keep such method of entrance in a reasonably safe condition, and that the complaint pleaded a good cause of action against the defendant.

The sole contention is that the carrier must use due care in the operation of its business, and that in a suit against a carrier the plaintiff may prove a custom of entrance or exit or some other custom which has to be considered in passing upon the issues. Upon a like question that was involved in the instant case the plaintiff cites the case of Ohio & Mississippi Ry. Co. v. Allender, 59 Ill. App. 620, and there the question was as to whether or not the defendant was negligent. It was held that if there was a custom to board a moving train from the wrong side by boarding the express car this was proper to be considered, but there is no proof of such custom. Plaintiff also cites the cases of Redin v. Alton G. & St. L. T. Co., 173 Ill. App. 491, and Chicago B. & Q. R. Co. v. Czaja, 59 Ill. App. 21, and there is good reason for the suggestion that these cases establish the fact that if by custom certain methods are adopted by common carriers they must operate and conduct their business with reasonable care and caution in view of the established and adopted custom, whether the custom is' a method of entrance to a station as in the instant case, or applies to something else in the operation of the carrier’s business.

It was suggested, however, by the defendant .that, unlike the circumstances in the case of Missouri K. & T. R. Co. of Texas v. Criswell, 101 Tex. 399, 108 S. W. 806, in the instant case the plaintiff was not a stranger, that he had used the station daily for two years; that there were not two platforms constructed by defendant for different uses which would tend to confuse, but only one walkway, and instead of waiting to use that walkway in safety the plaintiff chose to go around the safety gate and walk on an open unpaved railroad track with loose stone ballast between the rails; that plaintiff was not a confused stranger walking over one of two apparently similar platforms or ways, but was a highly trained office and sales manager.

The question here involved is whether the facts tend to justify recovery by the plaintiff, and that usually is for a jury to pass upon and to determine by a verdict which they feel is justified by the facts. There are a number of other similar questions, and we feel from the facts in this case, the authorities that have been submitted, and the rule upon such controverted questions, that the matter should be submitted to a jury for the purpose of passing upon them.

So when we consider all the facts as they appear, it is necessary to prove that there was a custom of entrance and exit or some other custom which has to be considered in passing on the issue of whether the carrier used due care in the operation of its business.

Of course one of the questions is: Was the plaintiff a trespasser? From the facts as they appear in this record, if the plaintiff used an established method of entrance to the station which was known to the plaintiff, then of course as a fact he was not a trespasser, and a good suggestion is offered here by the plaintiff in which attention is called to the fact that the complaint alleges that the plaintiff walked across the tracks at the most a few feet from the crosswalk, using the customary well established and general method of entrance, and that the complaint does not allege that the plaintiff walked along the tracks, and in walking across the tracks to enter the station the plaintiff was not a trespasser, when using the regular method of entrance to the. station.

The defendant in the instant ease seeks to raise an issue of facts in their motion to strike, by stating that this condition had existed for two years during which time the plaintiff had regularly used this method of entrance. There is no allegation in the complaint that this dangerous condition of the passageway had existed for any particular time othe^ than the day in question. If this dangerous condition of the passageway had existed for some time prior thereto, as a matter of law plaintiff would not be guilty of contributory negligence. When the authorities are applied to the facts pleaded in the complaint the question of contributory negligence is a question of fact and not a question of law.

The defendant, however, seeks to answer complainant’s point which refers to proof of a custom of entrance to or exit from the station and in which several cases are cited, none of which, as the defendant contends, have anything to do with either an entrance or an exit.

.Defendant also points to the fact that certain of the cases cited for the plaintiff referred to passengers on trains or street cars, who were injured because of ' failure to comply with an alleged known custom in the operation of the trains or cars, one case involving a custom of permitting employees to ride on a freight elevator, and another a custom of permitting stock shippers to ride on engine footboards in the stock yards. It. does not appear that what has been suggested would aid us in reaching the conclusion suggested by the defendant.

In answer to plaintiff’s argument as to proof of custom of entrance or exit to the station, the défendant has cited Cunningham v. Toledo, St. L. & W. R. Co., 260 Ill. 589, and comments that under the pleadings the plaintiff was not crossing tracks in a public street or on planked tracks adjacent thereto, but was east of the east crosswalk on Blackstone and was on the tracks at a point where they were ballasted with loose rocks and not prepared for nse as a walk. To this thé plaintiff has replied that this case has no bearing upon the case at bar; that plaintiff’s case as set forth in the complaint-is not for injuries caused by being struck by a moving train. Plaintiff was crossing the tracks adjoining the crosswalk and the portion of the tracks used by the plaintiff was a recognized method of entrance to the defendant’s station in constant use.

Of the questions that were involved, as suggested by the plaintiff, we have no question as to whether the plaintiff, having a valid, unused ticket, and using one of the established methods of entrance on the defendant’s premises to defendant’s station, was a passenger. In the case of Chicago Terminal Transfer R. Co. v. Schmelling, 197 Ill. 619, the plaintiff had alighted from the train and was crossing the track, leaving the railroad premises. The court, on page 627 of the opinion states:

“it was the duty of the defendant to provide a safe - means of access to and from its station at 26th street for the use of its passengers; and the plaintiff had a right to assume, that the place,, adopted for - discharging its passengers at that point, was safe.”

In the instant case the plaintiff had been using this method of entrance for two years and was on the railroad property with a valid ticket with unused rides, and on the authority quoted contends he was a passenger when on the railroad’s property proceeding to make entrance to its train. The defendant, however, quotes from the Supreme Court of Illinois opinion in Chicago & E. I. R. Co. v. Jennings, 190 Ill. 478, as follows :

“It is uniformly held that the passenger must have placed himself under the care of the railroad company, so that the circumstances will warrant an understanding on the part of the company that he is a passenger and under its care as such. Although it is not necessary that fare should have been paid or an express contract made, it is necessary that a person should be under the control of a carrier in order to be entitled to its care as a passenger. (2 Wood on Railway Law, 1037.) He must be at some place under the control of the carrier and provided for passengers, so that it may exercise the high degree of care exacted from it; and the mere fact that an intending passenger has a ticket and intends to take a train does not create the relation of carrier and passenger.”

So when we come to pass upon the questions that are involved, we are of the opinion that the complaint, the subject of this discussion, states a cause of action and raises issues of fact that must be disposed of in a trial of the case and not on a motion to strike, and that for the foregoing reason there is reversible error in the judgment order of the trial court, and the judgment of the trial court is reversed and the cause remanded to the superior court for trial.

Reversed and remanded for trial.

Burke, P. J., and Eeley, J., concur.


source: Caselaw Access Project

author: Mr. Justice Hebel

license: Public Domain

text:
    Sam Ingalls, Appellant, v. John Raklios, Appellee.
    Gen. No. 42,243.

      Opinion filed March 10, 1943.
    Sidney J. & Arthur Wolf, of Chicago, for appellant.
    John H. Lyle, of Chicago, for appellee; Edward T. Havey, of Chicago, of counsel.
   Mr. Justice Hebel

delivered the opinion of the court.

This is an appeal by the plaintiff from an order entered by the trial court denying plaintiff’s motion to amend and correct the judgment entered by the court.

In the original judgment the court, without a jury, made a special finding of malice, entered judgment in tort against the defendant for the sum of $2,000 and ordered a malice body execution to issue. Thereafter, • in pursuance of a notice served upon the defendant, the plaintiff filed a verified petition to which the defendant filed a verified answer.

Upon hearing the trial court denied plaintiff’s motion to amend and correct the judgment, and, as we have indicated, the plaintiff appeals from the order entered by the trial court upon plaintiff’s motion.

The plaintiff’s theory is that the written records of the trial court, consisting of the clerk’s minutes and the findings and orders entered on the half sheets of the municipal court of Chicago show that the court found that malice was the gist of the action and that the clerk erred in transcribing the judgment; that the lower court erred in denying plaintiff’s motion to amend the judgment because the written records prove that the judgment order was not properly transcribed.

The defendant’s theory, however, is that the lower court has no jurisdiction to amend the judgment order after 30 days hau elapsed following the entry of the original judgment.

In plaintiff’s petition it is alleged that on June 22, 1938 he recovered a judgment against the defendant for $2,000 and costs based upon a tort committed by the defendant; that the trial court made a special finding that malice was the gist of the action and that a memorandum of that finding was recorded in the clerk’s minute book; that the judgment was erroneously transcribed by the clerk and should be corrected to reflect the finding.

Defendant’s answer denies that the trial court made a special finding that malice was the gist of the action and denies that a memorandum of such finding was recorded in the clerk’s minute book; denies that the judgment was erroneously transcribed or should be changed; avers that plaintiff’s action is for nonpayment of money evidenced by promissory note.

Defendant avers that said judgment should not thus be changed because, (1) There is no memorandum in the court’s records authorizing or supporting such charge; (2) this is not a tort action, and malice is not the gist of the action; and (3) plaintiff is guilty of laches.

The statement of claim that was filed by the plaintiff on June 2, 1938 alleges that plaintiff delivered $2,500 to defendant to be returned if not used as agreed, and that defendant returned $500 but refused to return the balance and “thereby wilfully, maliciously and unlawfully converted the said $2,000 to his own use.” The statement of claim did not allege that malice was the gist of the plaintiff’s action.

It appears from the record that defendant defaulted and that judgment was entered on June 22, 1938 finding the defendant guilty as charged and making a special finding of malice and reciting that a malice body execution was to issue, among other things. The judgment did not recite a finding that malice was the gist of the action. Only two notations or memoranda are found in the record of the clerk’s entries in the minute book and on the half sheet. The only reference to malice in the minute book entry is “& C Malice.’’ The relevant portion of the half sheet entry is “Ct. makes spec, fndg of malice . .. . fndg deft John Baldíos Gr as chg in S of C — Mai body X to issue.” The judgment conforms to these notations, except that it is not abbreviated.

It appears from the facts set forth in this record that almost three years afterwards, and almost two years after defendant was discharged from a body execution issued herein, and more than one year after the Supreme Court held that said judgment would not support a capias (373 111. 404), plaintiff filed his petition alleging that his action was based upon a tort, that the court made a special finding that malice was the gist of the action, that the clerk’s entries recited such a finding, and that the judgment should be corrected.

Defendant filed an answer denying the above allegations. He averred that the action was for defendant’s nonpayment of money which he had promised to repay and for which he had signed and delivered a promissory note. The answer sets up the clerk’s notation in the minute book and half sheet and avers that there was no memorandum or notation reciting that the trial court made a special finding that malice was the gist of the action, and therefore the court now had no power to change the judgment. The answer also alleged that plaintiff was guilty of laches. The plaintiff filed no reply to the defendant’s answer and it stands as admitted. This fact was called to the attention of court and counsel, and dispensed with the necessity of defendant offering proof.

After the trial and extended argument, Judge Pad-den held that he could not find that the trial court made a special finding that malice was the gist of the action, as he had no record to base such finding upon, without wrenching the words out of all meaning, since a finding of malice is not the equivalent of a finding that malice is the gist of the action (citing Ingalls v. Raklios, 373 Ill. 404). The court also said it was probably true that this is not a tort action at all but a contract case. However, the court made no finding upon this question and did not pass upon the question of plaintiff’s laches.

On October 6, 1941, plaintiff’s motion to change the judgment was denied.

From the facts offered by the plaintiff it appears that on June 22, 1938 judgment was entered against the defendant in tort. It further appears, as suggested by the plaintiff, that the judgment in said cause was as follows:

“Court makes special finding of malice.

“Now comes the plaintiff in this cause, the defendant being absent and not represented, and thereupon this cause comes on in regular course for trial before the court without a jury, and the court having heard the evidence and the arguments of counsel and being fully advised in the premises, enters the following finding, to-wit:

“ ‘The Court finds the defendant, John Raklios, guilty as charged in plaintiff’s statement of claim and assesses the plaintiff’s damages at the sum of Two Thousand and oo/100 Dollars ($2,000.00) in tort.’ ”

On August 11, 1938, the motion of defendant to quash the malice body execution was overruled. Thereupon, defendant appealed to the Appellate Court of Illinois, first district, which court affirmed the order entered by the trial court. It appears that the Supreme Court of Illinois granted the defendant leave to appeal, and reversed the judgment of the Appellate Court and of the trial court on the grounds that the judgment order failed to find that malice was the gist of the action. Thereupon, the plaintiff filed a verified petition in the trial court and alleged in said petition that the memoranda prepared by the clerk at the conclusion of the trial showed that the court found that malice was the gist of the action, and the petition prayed that the judgment be amended and corrected to reflect the true and correct judgment entered by the court. The defendant filed a verified answer to the petition, and upon hearing of the petition and answer, the plaintiff read into the record the minutes entered by the clerk at the conclusion of the trial on June 22, 1938, which read as follows:

“Case No. 2781844, Ingalls v. Raklios: ‘ J 2,000 and C, malice. ’ ”

The half sheet of the municipal court was received in evidence and shows that the following orders were entered:

“June 15,1938. Defendant, John Raklios, defaulted personal service.

“June 22,1938. Court makes special finding of malice. Trial ex parte by court finding defendant, John Raklios, guilty as charged in statement of claim, damages Two Thousand Dollars in tort. Judgment on finding versus defendant, John Raklios, Two Thousand Dollars. Malice body execution to issue.”

It also appears from the stipulation of the attorneys for plaintiff and defendant that the entries in the minute book and on the half sheet were made by the clerk in the regular course of his duties.

At the conclusion of the hearing, the lower court denied plaintiff’s motion to amend and correct the original judgment. Plaintiff contends that the trial court has the power to amend.the judgment after 30 days had elapsed, where some minutes or records were preserved by "the court, and points to the fact that the clerk’s minutes and also the half sheet of the municipal court which was received in evidence clearly show that the trial court found that malice was the gist of the action, and cites in support of the suggestion the case of Krautseider v. Miley, 311 Ill. App. 242. We have quoted the syllabus, which is in words as follows:

“Where original judgment order noted ‘special finding of malice and malice body execution to issue,’ court had power after 30 days to correct judgment to read that court found malice to be the gist of-the tort action and ordering body execution to issue, as the mistake was due to the entry by the clerk, and memoranda identified by the clerk showed that such amendment was proper.”

Plaintiff also calls our attention to a case entitled Mazor v. Handler, 208 Ill. App. 312, which holds that the municipal court of Chicago has power to correct, on motion, an error of the clerk in entering a judgment on its records even though 30 days had elapsed between the date the judgment was entered and the date of the motion; and further calls attention to Gebhard v. Brewers Malting Co., 185 Ill. App. 254, syl. 6, which reads:'

“Where a judgment order on a default judgment recites the assessment of plaintiff’s damages at the sum of ‘ Seventeen Hundred and Thirty Dollars and Sixty Cents, ’ and in another portion of the order judgment is rendered for plaintiff for ‘Seventeen Hundred and Thirty and Sixty Cents in form as aforesaid by the court assessed’ while in the part of the order referring to a conditional judgment against the garnishees the word ‘ dollars ’ appeared" in the amount specified followed by: ‘being the amount of the judgment heretofore entered herein against the defendant,’ it was held that the order itself furnished a sufficient basis for an amendment inserting the word ‘ dollars ’ in the amount named in the clause reciting the rendition of judgment. ’ ’

The answer of the defendant to the contention that is offered by the plaintiff is that it is elementary that a trial court loses all power to change or amend its judgment after 30 days from the entry thereof, except as to form and except pursuant to some note, memorandum or memorial remaining in the files or upon the records of the court. The change cannot rest upon testimony, affidavits, or recollection of the judge. People v. City of Chicago, 363 Ill. 409; McCord v. Briggs & Turivas, 338 Ill. 158. The rule is stated in the People’s case above quoted, as follows:

“After the term at which a judgment has been rendered has passed, the court cannot at a subsequent term amend the judgment, except as to matters of form, and after notice to the opposite party. The amendment must be made from some note, memorandum or memorial paper remaining in the files or upon the records of the court. It cannot rest in the recollection either of the judge or of other persons; nor can it be based upon ex parte affidavits or testimony. (People v. Psi Upsilon Fraternity, 320 Ill. 326; People v. Weinstein, 298 id. 264; People v. Petit, 266 id. 628; Mack v. Polecat Drainage District, 216 id. 56.) ”

It is further suggested that there are two requisites • necessary to the changing of the judgment in this action, which was entered almost three years before plaintiff’s motion to correct was filed. There must be some memorandum or notation in the files or records reciting the making of a special finding by the trial court that malice is the gist of the action and, second, the amendment must be one of form only, and our attention is called by the defendant to the ruling of Judge Padden, in which he held that there was no note or memorandum in the record reciting that the trial judge made a special finding that malice was the gist of the action, from which he could find that such a finding had been made and upon which he could order the requested change in the judgment. Attention is also called to the two memorials that were introduced in evidence and relied upon by plaintiff. The first was the clerk’s entry in this minute book and the other was the entry upon the half sheet; and our attention is directed to the only relevant portion of the minute book entry as “& C malice,” saying “We are unable to decipher this entry, and the clerk was not called to explain it. Perhaps it means ‘see malice’, or ‘count malice’ or ‘charge malice’, or something else. But whatever its significance, it is not a recital that the "trial judge made a finding that malice is the gist of the action. It furnishes no basis for changing the judgment, and may be ignored.”

The relevant portions of the half sheet entry are “Ct. makes spec, fndg of malice — fndg deft John Baklios G- as chg in S of C — Mai body X to issue.” It is contended that this entry does not recite that the trial court made a finding that malice is the gist of the action and, secondly, that the judgment follows the form of this half sheet entry, is correct according to this entry, and needs no correction. The half sheet abbreviations are not equivalent to a finding that malice is the gist of the action. It was so held with respect to the even fuller provisions of the judgment. Ingalls v. Raklios, 373 Ill. 404. That decision should be considered by this court.

The half sheet entry reading “Ct. makes spec, fndg of malice” is disposed of by the holding of the court in the^Raklios case, as

“The statement in the judgment that the court makes a special finding of malice is not equivalent to a finding that malice was the gist of the action upon which the judgment was entered. •. . .”

The half sheet entry reading “fndg deft John Baklios Gr as chg in S of C” is not a special finding at all, and certainly is not a finding that malice is the gist of the action.

In the discussion of the facts as they appear in this record it is well to consider the opinion of the Supreme Court in Ingalls v. Raklios, supra. In the discussion of the case the court said:

“The remaining question leads to a consideration of statements contained in the judgment. In First Nat. Bank v. Burkett, 101 Ill. 391, where the court in considering a case of this character said that ‘the term “malice” in this form of action is not to be considered in the sense of spite or hatred against an individual but of malus animus and as denoting that the party is actuated by improper and indirect motives/ and in considering whether malice was the gist of the action it was stated: ‘The gist is defined to be the cause for which an action will lie — the ground or foundation of a suit, without which it will not be maintainable — the essential ground or object of a suit, and without which ■ there is not a cause of action. ’ From these definitions it is apparent that a defendant could be actuated by malice in committing a tort against the plaintiff and yet malice not be the gist of the action. The statement in the judgment that the court makes a special finding of malice is not the equivalent of a finding that malice was the gist of the action upon which judgment ( was entered.

‘ ‘ The statement in the judgment that the court found the defendant guilty as charged in plaintiff’s claim does not permit a reference to the complaint to determine whether the allegations of fact alleged therein made malice the gist of the action. As pointed out, if such reference was permitted it- would authorize j;he clerk issuing the writ to construe the pleadings in determining the legal effect to be given and thus exercise a judicial act.”

In applying the facts as they are stated by the court we are obliged to follow the opinion of the Supreme Court upon the questions that are in this case and as the court says that the defendant may be actuated by malice in committing a tort against the plaintiff and yet malice not be the gist of the action, and further goes on to point out that the statement in the judgment that the court makes a special finding of malice" is not the equivalent of a finding that malice was the gist of the action upon which the judgment was entered. .

So that when we come to apply the facts as they appear from the record that is filed in this instant case, it appears that three years had passed before the plaintiff’s motion to correct the judgment was filed in the instant case,' and the conclusion must 'follow that there must be some memorandum or notation in the files or records reciting the making of a special finding by the trial court that malice is the gist of the action. No such facts appear in this case, nor did the court make a finding that would meet the requirement expressed in the opinion of the Supreme Court in Ingalls v. Raklios, supra.

After careful consideration of the questions involved in this case, we are of the opinion that the court did not err in denying the motion that was made by the plaintiff to change the form of the judgment so that it would appear that it was based upon the fact that malice was the gist of the action, and, there being no justification for changing the judgment or to amend it to make the change as suggested by the plaintiff, we believe that the court did not err, and for that reason the order of the court is affirmed.

Affirmed.

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


author: Mr. Justice Kiley Mr. Presiding Justice Burke

text:
    Site of Fort Dearborn Building Corporation, Appellee, v. City of Chicago, Appellant.
    Gen. No. 41,369.

      (Burke, P. J., dissenting).
    Opinion filed March 10, 1943.
    Barnet Hodes, Corporation Counsel, for appellant ; Alexander J. Resa, Walter V. Schaefer, J. Herzl Segal, James A. Velde and Alfred Kamin, Assistant Corporation Counsel, of counsel.
    Taylor, Miller, Busch & Boyden, Jesmer & Jesmer and Morris M. Rudich, all of Chicago, for appellee Site of Fort Dearborn Bldg. Corp.; Francis X. Busch, John S. Miller, Cassius M. Doty, Morris M. Rudich and Julius Jesmer, all of Chicago, of counsel.
    Mason & Mason, of Chicago, for certain appellees intervenors; George A. Mason, of Chicago, of counsel.

      Alden, Latham & Young, of Chicago, for certain other appellees intervenors; Tracy Alden, of Chicago, of counsel.
   Mr. Justice Kiley

delivered. the opinion of the court.

The City of Chicago has appealed from a decree entered March 26, 1940 in an equity proceeding, brought as a representative suit, involving special assessment rebates. The cause was submitted to the trial court upon the pleadings of the parties and certain interveners, upon an agreed statement of the case, and argument.

Since May 1,1923, plaintiff has owned real estate on the west side of North Michigan avenue, between Randolph street and Chicago avenue in Chicago. March 23, 1914, an ordinance was duly enacted by the City by virtue of the Local Improvement Act for the improvement of Michigan avenue. Pursuant to the ordinance and judgment of the County Court condemning the necessary property, an assessment for $7,727,-131.00 was confirmed, of which $5,428,884.00 was for property and $2,298,247.00 for construction. Construction contracts were thereafter let amounting to $7,-922.583.00. and on May 19,1919, a supplemental assessment ordinance was enacted for' an estimated deficiency of $6,020,465.00, including an interest item of $396,-129.00. The supplemental assessment was confirmed by judgment.

The original assessment was against private property in the amount of $3,412,957.71, and against the public $4,314,173.29; and the supplemental against private property $2,499,370.70, and against the public $3,521,094.30. March 22, 1923, a final certificate of cost was filed, in the supplemental proceeding, showing total assessment $13,747,596.00, and total cost $13,747,-596.00. The cost included $90,585.63, estimate of accruing interest. April 9, 1923, an order was entered, approving and confirming the certificate; finding1 that nothing remained to be repaid or deducted on the assessment; reaffirming the original and supplemental assessments; and directing the Clerk to certify the certificate to the Board'of Local Improvements, and the order to the City Collector.

Bonds and vouchers were issued in anticipation of collection of the assessments. The City paid $8,087,-383.15 into the warrant as public benefits of which $931,338.33 came from the corporate fund and the balance from proceeds of general bonds. After all bonds, vouchers, interest-, and indebtedness for land acquisition and damage and construction were paid in full, $341,770.32 remained in the warrant. August 22, 1930, the City transferred $267,770.32 of the balance to its corporate fund and $70,000.00 to a “Rebate Trust Fund” established June 18, 1930, for holding special assessment rebates to the City. The $70,000 was thereafter re-transferred to the corporate fund.

The decree ordered the City enjoined from paying surplus special assessment funds for. any purpose other than a rebate; directed it to restore the moneys and interest thereon to the special assessment fund;' directed it to cause a rebate to be declared and paid out of the surplus funds upon each assessed lot pro rata, except for attorneys’ fees and costs; and directed it not to share in such distribution.

All assessments for the improvement in question arc fully paid, plaintiff having paid $30,758.35.

The City contends, (1) the action is barred by limitations; (2) plaintiff’s action at law is plain and adequate and equity has no jurisdiction here; (3) plaintiff has no right to prosecute a representative suit; (4) the City had no obligation under the facts here to declare or pay a rebate; (5) plaintiff is bound by the County Court’s adjudication of April 9, 1923; (6) and there is no basis for interest. "We are bound by the decision in Flanagan v. City, 311 Ill. App. 135 (Petition for leave to appeal denied by the Supreme Court September 12,1941) under which we must hold that plaintiff’s action here is a proper representative suit, of which equity has jurisdiction, since the special assessment fund involved was a trust fund. Thus, the City’s 2nd and 3rd contentions are disposed of. The statute of limitations does not bar plaintiff’s suit, because since the funds involved are trust funds, the statute did not commence to run until plaintiff had notice of the City’s alleged violation of trust on August 22, 1930. State Bank & Trust Co. v. Commercial Trust & Savings Bank, 300 Ill. App. 435. The proceeding here was instituted February 6, 1935, within the five year limit for accounting suits.

The principal question is whether the City rightfully transferred the moneys from the warrant. It claims the right to make the transfer under sections' 84 — 93 and 84 — 94 of the Act [Art. 84, ch. 24, 111. Rev. Stat. 1941 (Jones 111. Stats. Ann. 21.2319, 21.2320)], as amended in 1917.

Section 84 — 94, as amended in 1917 and prior to 1931, provided that in cities over 100,000 population, the ordinance for “the assessment prescribed” may provide not to exceed 5 per cent thereof for costs, fees, deficiency in interest, etc. To sustain the City’s point we must find that the amendment applied to the supplementary assessment because the original proceeding was prior to the amendment and the City does not contend for a retroactive application. We believe section 84 — 94, as amended in 1917, cannot be construed to permit the city to make the transfers, because the 1919 ordinance is only supplementary to the original. The 1914 ordinance “prescribed” and provided for “the assessment,” the 1919 ordinance prescribed and provided for a supplemental assessment. The supplemental ordinahce is made possible by section 84 — 59 which does not provide the 5 per cent privilege. The supplementary ordinance is an addition to the original with no greater extension.

The decree precludes the City from sharing in any rebate of the surplus. Plaintiff contends in support of the decree that in section 84 — -93 the legislature plainly intended that only private property should participate and that under the familiar rule of statutory construction by expressly designating “each lot, block, tract or parcel of land assessed,” the legislature excluded public benefits. Proper construction of this section requires that we consider the related sections 84 — 39, 84 — 59 and 84 — 84 [Jones 111. Stats. Ann. 21.2248, 21.2268 and 21.2305].

Section 84 — 39 provides for the apportionment of the cost between the public and private property, so that each shall bear its “relative, equitable proportion”; and “to apportion and assess” their share among the parcels of private property in “proportion” to their benefits, with none “assessed a greater amount” than benefited. Section 84 — 59 provides for supplemental assessments “in the same manner as ' nearly as may be as in the first assessment”; and that if too large a sum shall at any time be raised, the excess shall be refunded “ratably to those against whom the assessment was made.” The first assessment was made against the public and the private property. Section 84 — 84 provides that after the improvement is completed, if the total amount “assessed for said improvement on the public and private property” exceeds the cost, the excess, less needed interest, shall be credited by reducing “proportionately” to the public and private property, the confirmation judgment; and be credited “pro rata” upon the “respective assessments”; and where the assessment is in installments, ‘ shall be credited'so as to make all installments equal; and should any installment be due and payable before entry of the reduction order, credit shall be applied “pro rata” upon remaining installments. It then provides that the intent and meaning of the section is that “no property owner” shall be made to pay more than his “proportionate share” of the cost and interest. Section 84 — 93 provides that should any surplus remain after final settlement with the contractor and for bonds, vouchers and interest, the City shall have the duty at once to cause a rebate on each lot, block, tract or parcel of land assessed of its “pro rata proportion” of such surplus.

A study of the language of these sections indicates that it would be unreasonable to conclude that the word “assessment” applies- only to private property and not to public benefits; or that the term “assessees” as used in Flanagan v. City of Chicago, 311 Ill. App. 135, is limited to private property owners ;• or that where section 84 — r39 provides for the public and the property owners to bear just shares of the cost of the improvement, and where section 84 — 59 provides for refunding the excess “ratably” to those against whom the assessment was made — that is the public and private property owners — , and that where section 84 — 84 provides for crediting excesses “proportionately” upon the “respective assessments,” the legislature intended in a related section 84 — 93 to rebate the entire surplus of assessments to the private property owners only. Such construction would attribute to the terms “proportionate,” “ratably*” “pro rata,” one meaning when the money is being collected, and another when it is being refunded; different meanings for the same terms in the several related sections of the same Act. The mention of one thing does not exclude others when the context shows a different intention. (Lewis’ Sutherland Statutory Construction, 2nd Ed. Vol. 2, Sec. 495.) It certainly cannot be said that where section 84 • — 84, in referring to the intent and meaning of that section, says that no property owner shall be required to pay a greater amount than his proportionate share, that the legislature thereby intended that the general public should be required to do so. To so hold we must approve what is plainly an unjust proportion. We should not apply that rule of construction in aid of an injustice.

To construe the provision as we are constrained to do, requires supplying the words, “to the public and” preceding the words, “upon each lot” and substituting the word 1 ‘ their ’ ’ in lieu of the word “ its ” preceding the words “pro rata.” Words may be supplied where necessary to give effect to the intent of the legislature and avoid repugnancies or inconsistencies with that intention. (Lewis’ Sutherland Statutory Construction, Vol. 2, Section 383; and Loverin v. McLaughlin, 161 Ill. 417, 430.) We believe the construction arrived at is proper and just and we are mindful that tax laws in case of doubt should be construed most strongly against the government (People v. Sears, 344 Ill. 189) and that the Local Improvement Act must be “faithfully followed and strictly construed.” Monahan v. City of Wilmington, 328 Ill. 242. The surplus is made up of balances of money contributed by the general public and private property owners in shares determined finally (sec. 84 — 47) by the County Court to be just according to the percentage of the total benefit, each class assessed, received. The difference in character of the benefits is immaterial. Unless the surplus is rebated in the same percentages, the relation of benefits and assessments of each class will be disturbed, and the final determination of the County Court made ineffective. We cannot say because there is a surplus, that the benefit to the public is thereby increased. It is true that in 1917 and in 1931, section 84 — 93 was amended and the legislature did not broaden the provision for rebate, but equally true that it did not either remove the plain inconsistencies in the several related provisions. The noun “rebate” as used in these sections means a remission or payment back. Webster’s New International Dictionary, 2nd Ed. To allow plaintiffs a greater percentage of the surplus than their percentage of the cost, would be paying them moneys out of the fund which they did not pay in and, therefore, not a payment back and not a rebate. Savage-Scofield Co. v. Tacoma, 56 Wash. 457, 105 Pac. 1032; Words and Phrases (2nd) Vol. 4, p. 196., In our opinion under a proper construction of sec. 84 — 93 the general public and the private property owners should share in the rebate according to the same ratio that controlled the apportionment of the cost of the improvement between them.

The City contends that the court order of April 9, 1923, approving the certificate of completion is binding on plaintiff and, having found no surplus existed, the only possible rebate is the “accruing interest” item of $90,585.63 set up in the certificate. All bonds, vouchers and interest were paid February 1, 1926. The parties stipulated that after such payments, the net remaining in the fund was $340,515.30. We hold that this net amount is the amount of the surplus to be rebated under section 84 — 93.

The City further says, in effect, that it is not liable for interest on moneys found to be wrongfully transferred because there is no showing that the plaintiff demanded a rebate and, therefore, "there can be no holding that the City was guilty of unreasonable and vexatious delay. Under section 84 — 93, the plaintiff was entitled to, but did not, demand its pro rata share of the surplus funds “at once” after February 1, 1926. It is apparent that the trial judge had this in mind when he ordered interest not from February 1, 1926, but from August 22, 1930, on which date the City transferred the funds. The City, to the extent of the funds transferred to which it was not entitled, diverted trust funds. It is obvious from the issues made in the case that any demand by plaintiff after that date would have been unavailing. We believe, under the rule in such cases in this State and upon which the parties here apparently agree, that plaintiff was entitled to interest at 5 per cent from August 22, 1930 upon the moneys wrongfully transferred. It was money held for plaintiffs, which the City in good conscience should not have diverted (Conway v. Chicago, 237 Ill. 128), •and we cannot say that the City should be absolved from blame because it misconstrued the 1917 amendment.

For the reasons herein given the decree of the Circuit Court is hereby reversed with directions to the trial court to modify the decree by finding that the general public and private property owners benefited are entitled to share in the rebate in the same ratio that they contributed to the fund, the private owners participating pro rata in their share; by reducing the restoration, rebate payment and interest orders consistent with that ratio; and in such other respects as shall be necessary to give effect to this decision.

Decree reversed and remanded with directions.

Hebel, J., concurs.

Mr. Presiding Justice Burke

dissenting in part: The City contends that if a rebate be payable, it is entitled to share therein, and argues that as a municipal corporation and not as the owner of any lot, block, tract or parcel of land specially benefited by or specially assessed for the cost of the North Michigan avenue improvement, it is entitled to participate in any rebate declared and paid under the provisions of section 93 of the Local Improvement Act (sec. 84 — 93, ch. 24, 111. Rev. Stat. 1941 [Jones 111. Stats. Ann. 21.2319]) out of the surplus special assessment funds which remained in the hands of the defendant after payment in full of all costs incurred for the making of the improvement. Defendant contends that its share should be in proportion to the amount paid by it out of its general bond funds and other general tax funds as “its public benefit assessment” for the cost of the improvement. I cannot agree with the position of the City on this point. Section 93 provides that if upon settlement with the contractor and full payment of all vouchers or bonds, there shall be any surplus remaining in such special assessment, it shall be the duty of the proper authorities of the City to at once cause a rebate to be declared upon each lot, block, tract or parcel of land assessed, of its pro rata proportion of such surplus. I agree with the plaintiff that section 93 is the controlling section of the statute in this ease. Nowhere is there a suggestion that any such rebate should be paid out of such surplus on account of, or by relation to the so-called ‘ ‘ public benefit assessment” which the law requires to be paid out of general tax funds because of the generál public benefits accruing from, the improvement. The legislative mandate contained in section 93 is clear and unambiguous. In my opinion the court was right in decreeing that no portion of the rebate be paid to the City of Chicago.

I agree with the contention of the City that there is no basis for the allowance of interest in this case. Here the money was rightfully obtained by the City but wrongfully withheld. The City, in opposing the claims of the property owners, did so in good faith. Under the circumstances, it cannot be said that there was an unreasonable or vexatious delay.


author: Mr. Justice Kiley

text:
    Hazel M. Griefen, Executrix of Estate of Harriet A. Mitchell, Deceased, Appellee, v. George A. Garin and Standard Surety and Casualty Company of New York. Appeal of Standard Surety and Casualty Company of New York, Appellant.
    Gen. No. 41,957.

      Opinion filed March 10, 1943.
    Wendell H. Shanner, of Chicago, for appellant; Willard Hummeland, of Chicago, of counsel.
    Chas. O. Bundall, of Chicago, for appellee.
   Mr. Justice Kiley

delivered the opinion of the court.

This is an action for breach of a bond given to an administrator in the Probate Court of Cook County and by him assigned to plaintiff as executrix under a subsequent will. The trial was by the court without a jury with judgment for plaintiff for $1,870.85. The surety company has appealed. The. facts were stip- • ulated subject to certain objections of plaintiff.

Harriet A. Mitchell died May 11, 1936, leaving twenty-two heirs at law and next of kin. A nephew, Kailer, appointed administrator May 18, 1936, searched with others, without success, for a will. November 2, 1936, claims of less than $1,200.00 were allowed and paid in due course. An inventory filed October 17, 1936, showed assets of approximately $67,000.00.

November 3, 1936, Kailer by virtue of a court order authorizing partial distribution, upon receiving from Garin a bond, distributed $1,500.00 to Garin, an heir, entitled to one-fifth of the estate.

December 1,1936, plaintiff appeared in the estate by virtue of a contract wherein she claimed decedent was obliged to adopt plaintiff and under which contract decedent had reared her from childhood.

May 20, 1937, Kailer filed a current account with credit for payment to Garin. Plaintiff made no objection to that item. January 22, 1938, plaintiff presented for probate an unsigned copy of decedent’s will dated January 21, 1909, which decedent had unsuccessfully tried to revoke in 1914 and which had later been destroyed. None of the parties here knew of its existence until the latter part of 1937. The Probate Court admitted the will March 25, 1938. This court approved that order (In re Estate of Mitchell, 305 Ill. App. 289) and Kailer on November 6, 1940 was removed as administrator and plaintiff qualified as executrix. Thereafter, Kailer presented his final account. Plaintiff objected to the credit of $1,500.00 paid to Garin.

The bond, subject of this proceeding, was assigned to plaintiff January 20, 1941. She as sole beneficiary in the will made demand upon Garin- and defendant to pay her the sum distributed and her demand not complied with, the Probate Court directed defendant to pay. There was no money judgment against defendant but the court did, by order, cancel defendant’s authority to write bonds in the Probate Court. Defendant appealed to the Circuit Court from the directive order, which appeal, numbered .41-C-2249, was consolidated with the instant proceeding as 41-C-1665.

The issue is upon the character of the bond and presents a question of law. Defendant contends it is a statutory obligation indemnifying Kailer and his assignee against loss through claims of creditors unpaid because of the disbursement. Plaintiff contends that it is a common law obligation indemnifying the estate. The bond was ordered under provisions of Rule 17 of the Probate Court in effect at the time which required, among other things, that in all cases of partial distribution to heirs, “before the expiration of one year from date of letters, a refunding bond shall be required from the distributees to indemnify the estate against loss by reason of such distribution.” The order required “an indemnifying bond.” The bond provided for indemnity to Kailer, administrator,1 ‘ against any and all loss, cost, damages or expense” accruing by reason of the payment to Garin. Chapter 3, par. 119, sec. 117, Ill. Rev. Stat. 1937, then in force, required a bond, payable to executors or administrators for their indemnity, from legatees or distributees to insure “payment of debts” appearing against the estate after distribution. It is apparent that Rule 17 provides for indemnity to the estate. The order is not clear in its requirements of the bond. The bond, it-self, runs to Kailer indemnifying him against loss and the statute requires the bond for his" indemnity.

Plaintiff contends Rule 17 is broader than the statute and that the bond was entered into voluntarily, is valid at common law, not in contravention of nor repugnant to Illinois law or policy. There is no charge or proof of bad faith on Kailer’s part and, consequently, no tortious aspect. Kailer’s conduct, in searching for the will, and having authority for distribution to Garin, meets the standard of reasonable conduct established in Illinois for personal representatives. Christy v. Christy, 225 Ill. 547. Under the circumstances Kailer is entitled to the court’s protection. In re Estate of Togneri, 296 Ill. App. 33, 24 C. J. 498. He is not liable personally to reimburse the estate and under the general rule, since there is no proof of any loss by him, then by the terms of its obligation, the defendant is not liable. City of Chicago v. Siebert, 244 Ill. App. 83; Corn Belt Bank v. Maryland Casualty Co., 281 Ill. App. 387. Plaintiff does not dispute these principles, and we believe they are sound for otherwise administration of estates of decedent would suffer for lack of confident, conscientious representatives. Plaintiff relies upon the provisions of Rule 17. It is important to note that the rule requires a refunding bond in all cases for partial distributions made within a year after the date of letters. That provision supports- defendant’s view of the bond, because clearly, the provision is intended to protect creditors.

We believe that whether the obligation in question was a statutory refunding bond or a common law bond, plaintiff has no right of action because in either event loss by Kailer was an essential element, for the bond, because of the statute and by its terms, ran to Kailer. It is our opinion that the bond is clearly a statutory refunding bond, required under the terms of sec. 117, ch. 3, Ill. Rev. Stat. 1937 and, accordingly, that section prevails regardless of the language of "Rule 17 of the Probate Court. Section 117 provides for indemnity to the administrator as well as protection for creditors of the estate. There is no claim or proof of loss by Kailer and plaintiff is a legatee, not a creditor, (Wolf v. Griffin, 13 Ill. App. 559), and does not come within the protection offered by section 117. People v. Admire, 39 Ill. 251; Klicka v. Klicka, 105 Ill. App. 369. The provisions of section 118, in referring to “payments of debts” confirms our view.

We have considered Barnes v. Brookman, 107 Ill. 317; Garst v. Jackson, 211 Ill. App. 360 and Richardson v. People for use of Dugger, 85 Ill. 495, cited by plaintiff. They' are not helpful to the decision and the • rule of ambiguity in the Richardson case is not ápplicable because there is no ambiguity in the bond in the instant case.

For the reasons herein given the judgment of the trial court is reversed and the cause remanded with directions to the Circuit Court to enter judgment for the defendant.

Judgment reversed and cause remanded with directions.

Bubke, P. J., and Hebel, J., concur.


text:
    George Lutsch, Appellant, v. City of Chicago, Appellee.
    Gen. No. 41,968.

      Opinion filed March 10, 1943.
    Blowitz, Baskin & Kallick, of Chicago, for appellant.
    Barnet Hodes, Corporation Counsel, for appellee; James A. Velde and Alphonse Cerza, Assistant Corporation Counsel, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

This is a personal injury action in which the trial court directed a verdict for the City because of insufficiency of statutory notice of the injury. The notice is “a statement in writing” of the circumstances of the injury signed by any claimant, agent or attorney, which statement must be filed in the offices of the City Attorney and City Clerk. Section 7, eh. 70, 111. Bev. Stat. The defendants’ answer admits “what purports to be a statutory notice referred to in paragraph six was served, that as to alleged facts stated in said notice defendant denies.” Under section 164, chapter 110 (HI. Bev. Stat. [Jones 111. Stats. Ann. 104.040]) it would appear that no issue as to the sufficiency of the notice was raised, though the point is not made here.

Plaintiff’s counsel offered in evidence 4 exhibits, #1, an original notice signed by him and receipted by the City Clerk and Corporation Counsel; 1 (a), unsigned copy receipted by the Corporation Counsel; 1 (b) , unsigned copy receipted by the City Attorney; 1 (c) , signed copy left with the City Clerk. Exhibit 1 had been retained for counsel’s file for it had been receipted in each office. The court rejected plaintiff’s offer of these exhibits,- except 1 (c), on the ground that exhibits 1 (a) and 1 (b) were insufficient under the statute and that exhibit 1 had no place in evidence.

The evidence surrounding the service of notice was undisputed and, therefore, a question of law arose for the trial court to decide, that is, whether the notice served was sufficient under the Act. By excluding the exhibits offered, the trial court must have concluded that they had no tendency to show compliance with section 7 and were, therefore, immaterial to his decision.

Unquestionably, plaintiff served proper notice as that term is commonly understood among lawyers. The original was signed by her counsel and presumably exhibited to, since it was receipted by the City Clerk and Corporation Counsel. Copies were left with them, one of which left with the Clerk, was signed by plaintiff’s counsel. The statute, however, requires more than the customary legal notices, but, although the section requires in words, the “filing of a statement in writing,” the Supreme Court (Donaldson v. Village of Dieterich, 247 Ill. 522; Minnis v. Friend, 360 Ill. 328) has referred to the “statement” as a “notice” and to the “filing” as “service.” Both Webster’s Now International Dictionary (2nd Ed.) and “Words & Phrases,” vol. 3, pages 2764 and 2765 give two meanings, for the verb “file,” and we believe the meaning here is synonymous with, and used in the identical sense as the verb “serve.” For a contrary view see Richmond v. City of Marseilles, 190 Ill. App. 227.

The section is in derogation of the common law rights of injured persons and should be construed strictly against the City, although an early Illinois case held that strict compliance with the statute was necessary, but later cases, (Schmidt v. City of Chicago, 284 Ill. App. 570; McComb v. City of Chicago, 263 Ill. 510) inferentially approve a decision of a foreign jurisdiction holding that such statutes should be liberally construed.

We are disposed to give the section a liberal meaning within the limits established in the Minnis case, the most recent on the subject. There no notice was signed, though the notices were regular in all other respects. The court considered McComb v. City, where a notice which did not specify on which corner of an intersection the accident occurred, was held valid. The court said that the McComb case relied on by Minnis, and by plaintiff here, would have applied in favor of the notice if there had been some attempt to comply with the requirement that the notice be signed, and if the question were as to the sufficiency of the signature. It was held that the notice did not contain one of the essentials prescribed by the Act— the signature; that there was no attempt to comply Avith that requirement; and that the notice Avas not admissible. The Minnis case is not decisive here because an attempt Avas made to comply with the element missing there.

The object of section 7 is to provide timely notice to the City that a party claims to have sustained an injury and proposes to enforce his claim against the City by suit, so that the municipality may investigate “Avhile surrounding conditions are fresh” to determine the justice of the claim, (Donaldson v. Village of Dieterich, 247 Ill. 522; Welch v. City of Chicago, 323 Ill. 498) and not to furnish a pitfall for meritorious claimants (McComb v. City of Chicago, 263 Ill. 510). Lack of signature on a copy of the notice does not defeat that object.

What purpose has the signature on such a statement of notice f It cannot be for later identification, for the section permits claimant, agent or attorney to sign. It must be to authenticate and formalize the claim. Is not the purpose accomplished when a complete, signed notice is filed with the Clerk and the City’s counsel sees and receipts a complete, signed notice and is given an unsigned copy?

If there is any further need of the signed copy, has not the City in the person of the Clerk, a signed copy? The plaintiff complied Avith the section in all respects, except for the signature and in that element made an attempt, and under the McComb case that is sufficient. The Minnis case does not limit attempts to comply with the signature requirement, to those where signature is insufficient.

For the reasons given the judgment of the Superior Court is reversed and the cause is remanded for a new trial consistent with the views expressed herein.

Judgment reversed and cause remanded.

Burke, P. J., and Hebel, J., concur.


text:
    People of the State of Illinois, Defendant in Error, v. A. A. A. Dental Laboratories, Inc., Plaintiff in Error.
    Gen. No. 42,257.

      Opinion filed March 10, 1943.
    Behearing denied March 29, 1943.
    James W. Breen, of Chicago, for plaintiff in error ; Voyle Clark Johhsoh, of Chicago, of counsel.
    Thomas J. Courthey, State’s Attorney, for defendant in error; Edward E. Wilsoh, Johh T. Gallagher, Melvih S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Mr. Justice Kiley

delivered the opinion of the court.

The Corporation appeals from a judgment on a verdict finding it guilty of the criminal offense of practicing dentistry unlawfully in violation of section 72 (a) of the Medicine and Surgery Act, (ch. 91, 111. Rev. Stat. [Jones 111. Stats. Ann. 39.19]).

The Corporation owns and operates several laboratories and offices located in Chicago, Illinois. The information charged that the offense was committed ' September 3,1941, by offering to furnish, supply, construct and repair dental plates for users and prospective users, and offering dental plates for sale, use and delivery to the public by advertising the sale, use and delivery thereof to the public through the Chicago Daily Times, a newspaper of general circulation. The State produced the only evidence at the trial since the offer of proof made by the Corporation was rejected. A policeman testified to buying “The Times” September 3, 1941 and seeing the advertisement which was introduced in evidence; also to visiting several of the laboratories during their business hours and finding dental plates on display therein with the prices advertised. An employee of “The Times” testified to soliciting the advertisement and of the publishing in-the paper of advertisements of various dental laboratories and dentists.

The court at the close of the evidence said that, as a matter of law, proof alone of the advertisement by the Corporation offering to furnish dental plates to users, or prospective users, was practicing dentistry unlawfully in violation of paragraph 72 (a) of the Act. This was the State’s theory and the jury was instructed in accordance therewith.

The Corporation complains that the information was insufficient to charge the crime or support the verdict; that the instructions were erroneous; and that no. evidence was introduced tending to prove a crime. Its motions to strike, for directed verdict and for a new trial were denied.

Prohibition against the practice of dentistry by a corporation is but one member of the disjunctive provisions of paragraph 72 (a). The others are holding oneself out as entitled to practice dentistry; furnishing dental service or dentists, advertising under or assuming the title of dentists, etc.; furnishing dental advice for compensation; advertising or holding oneself out as owner of a dental office, or that it can furnish dental' services; and soliciting patronage for any dentist employed by such corporation.

In effect the information charges the defendant as a corporation with unlawfully practicing dentistry, in violation of paragraph 72 (a), as described in para1, graph 60 (9), (as amended in 1939) that is, by offering to furnish, supply, etc. dental plates, etc. to users, or prospective users. Paragraph 60 in addition to describing the various practices amounting to the practice of dentistry, sets forth certain exemptions from the Act, (f) being the making or repairing of dental plates, etc. upon order or prescription of a licensed or registered dentist and constructed from impressions taken by such a dentist. Provisos in (f) contain prohibitions; such plates shall not be offered for sale, etc. to the public, and they shall be placed or adjusted in the mouth only by licensed registered dentists. The Corporation argues that the information should have negatived this exemption. It will be noted that the State charged a violation of the prohibition in the proviso against offering dental plates to the public for sale. That charge negatived the exemption because proof of the charge would lift exemption (f) and bring the Corporation within the scope of the Act, so that paragraph 72 (a) would apply. The allegations of advertising simply described the means whereby the prohibition limiting (f) was allegedly violated and was not, itself, charge of an offense nor was the allegation of the offer of sale, charge of an offense. The information was sufficient for it alleged the crime under paragraph 72 (a), as described in paragraph 60 (9) and negatived the exemption (f) by charging the offer to sell.

The advertisement is the only evidence relied on by the State. The State contended, and the trial court upheld the contention, that the advertisement was sufficient to prove the crime. The State says that having proved by the advertisement that the Corporation offered to sell and deliver dental plates to the public, and using the advertisement to solicit patrons, that, under Lasdon v. Hallihan, 377 Ill. 187, the crime was proved. The requirement of this case is proof beyond a rea- . sonable doubt, and there is no charge made of unlawful solicitation of business. The Corporation offered to prove that it does not make dental plates except upon orders of, and impressions taken by, licensed dentists. The offer was rejected.

The Corporation says that the Lasdon case is not applicable, but that the case of Winner v. Kadow, 373 Ill. 192 is decisive here. Its principal contention is that making dental plgtes only in accordance with exemption (f), it cannot be guilty of a violation of the Act. It misses the point that if it did comply with exemption (f) and yet violated either prohibition provided therein, the exemption would be lifted and the Act apply. It seeks to distinguish the Lasdon case, on account of the mode of practice, which the evidence there showed was the custom of the laboratory. It again- misses the point that, complying only with exemption (f) is not controlling. The provisos thereto are' conditions which must be fulfilled in order to gam the exemption.

Neither the Winner case nor the Lasdon case alone is decisive of the instant case. The Winner case was a suit by a laboratory on a note and the Lasdon case an injunction suit by a laboratory, to restrain prosecution of alleged violation of the Act. In the Winner' case no advertisement was in evidence. In the Lasdon case there was an advertisement, and findings that the laboratory referred patrons to a particular dentist; and that the patient though examined and fitted by a licensed dentist and delivered by the laboratory to the dentist, paid the dentist for his services and the laboratory for its services. The advertisement in the latter case went much further than the one in the instant case. The Winner case, decided February 21, 1940, construed the word, “public” in the proviso to exemption (f) as meaning persons other than those examined and fitted by a licensed dentist, and it decided that a sale to a person so examined and fitted, was legal as a dental practice exempted from the Act. The Lasdon case, decided June 13, 1941, decided that a laboratory may carry on its business of making and selling dental plates, on condition that the impression is made by licensed dentists, the fitting done by a licensed dentist, and the dental plates or services making them not offered for sale to the public. Applying the construction of the word “public,” in proviso to (f), in the Winner case to the elements of compliance in the Lasdon case, it appears that the Corporation here complied so as to be without the scope of paragraph 72 (a), if it required impressions and fittings to be made by licensed dentists and sold the dental plates only to those persons so examined and fitted. Carrying on a business in that way, being a lawful enterprise, advertising the business as carried on would be the defendant’s right.

If the advertisement offered services which did not comply as aforesaid, then there would be an unlawful offer of services and the elements of the crime present. The advertisement carried the picture of a toothsome young lady, defendant’s name, locations of the various branches, the hours of business and the following-statements, “Try Natural Looking False Teeth $9.50 Up — 60 Days Trial, Free Estimates, Money Back Guarantee of Satisfaction — World’s Largest Dental Plate Makers — Credit if you Need! Dentures made upon receipt of order & impression from Licensed Dentists only. Repairs — One Day Service.” The restrictive statement is not as large as some of the print, but cannot be construed as unreadable or hidden, or as designed for any ulterior purpose other than perhaps to have it read after the more attractive statements in larger print.

The State asks can it be contended that the advertisement does not offer dentures ‘for sale, use or delivery to the public, published as it was in The Chicago Times'? This is a criminal proceeding and the State was required to prove the crime beyond a reasonable doubt. It relies on the advertisement alone. Obviiously, the advertisement did not offer to sell dental plates to persons other than those prescribed for and fitted by licensed dentists. On the contrary, the advertisement limited any offer to those persons only so examined and prescribed for. Without evidence that the practice of the defendant was not in compliance with the elements necessary for exemption, no crime was proved, the instructions given were erroneous and the judgment must be reversed.

For the reasons given the judgment of the Municipal Court is reversed.

Judgment reversed.

Burke, P. J., and Hebel, J., concur.


author: Mr. Presiding Justice Matchett

text:
    Catherine Murphy, Appellee, v. City of Chicago, Appellant.
    Gen. No. 42,284.

      Opinion filed March 22, 1943.
    Barnet Hodes, Corporation Counsel, for appellant; James A. Velde, L. Louis Karton and John F. O’Malley, Assistant Corporation Counsel, of counsel.
    Royal W. Irwin, of Chicago, for appellee.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

In an action in tort for alleged negligence of defendant City in the construction and maintenance of its streets, whereby plaintiff was injured, and on trial by jury there was a verdict for plaintiff in the sum of $5,500, on which the court entered judgment. For reversal defendant argues a single point; namely, that there is no evidence in the record to show that the plaintiff complied with the statute which requires the filing by claimant with the City of a statement in writing as a condition precedent to instituting suit against it.

The injury was sustained by plaintiff on March 17, 1937. At that time the law requiring notice was as set forth in 111. Bev. Stat. 1941, ch. 70, pars. 7 and 8 and now in the same statutes, ch. 24, §§ 1 — 11 and 1 — 12 [Jones 111. Stats. Ann. 21.1121, 21.1122].

At the close of plaintiff’s evidence the defendant made a motion for an instructed verdict in its favor. The motion. was in writing. It did not mention lack of proof of notice as a reason therefor. The defendant offered no evidence. The court announced the ruling on the motion would be reserved. The verdict was in favor of plaintiff. Defendant also made a motion for judgment in its favor notwithstanding the verdict, and also for a new trial. Each and all of these motions were denied and judgment entered as already-stated.

However, it does not appear that lack of notice was specifically pointed out as the basis of any one of these motions. An alleged notice was set up verbatim in the complaint. It is dated at Chicago, June 5, 1937, is addressed to the attorney for and the clerk of the City and the Corporation Counsel, naming each of them. It is signed by the plaintiff and her attorney, and the sufficiency of its subject matter is not questioned. The City attorney, the City clerk and the Corporation Counsel acknowledge thereon the receipt of the notice on the 7th day of June, 1937, which is within the time prescribed by the statute.

Paragraph 5 of defendant’s answer states: “The defendant admits that what purports to be a statutory notice, referred to in paragraph five, was served on the City of Chicago; that as to the alleged facts stated in said notice the defendant denies.”

This notice was not offered in evidence by plaintiff. The. defendant did not offer any evidence on this or any other issue. No motion was made by defendant to dismiss the suit on this or any other ground.

Section 40 of the Civil Practice Act (Smith-Hurd’s Ann. Stats., ch. 110, p. 252 [Jones 111. Stats. Ann. 104.040]) provides in substance that the general issue shall not be employed; that every allegation, except allegations of damages not explicitly denied, shall be deemed to be admitted and the denials must not be evasive.

In McComb v. City of Chicago, 263 Ill. 510, 513, the Supreme Court said:

“It was not intended that the terms of the notice should be used as a stumbling block or pitfall to prevent recovery by meritorious claimants.”

Chapter 110, § 68, par. 192, Smith-Hurd’s Ann. Stats., pp. 681, 682 [Jones 111. Stats. Ann. 104.068], of the Practice Act provides that a party moving for a new trial in arrest of verdict and for judgment notwithstanding shall file the points in writing, “particularly specifying the grounds for such motion.”

The purpose of the statute is apparent. It is to protect a municipality against unfounded and unjust claims. We do not deem it necessary to discuss the many cases cited in the briefs, most of which arose long prior to the enactment of the present Civil Practice Act. That act provides (see Smith-Hurd’s Ann. Stats., ch. 110, § 4, par. 128, p. 20 [Jones 111. Stats. Ann. 104.004]) that the act shall be liberally construed to the end that controversies may be speedily and finally determined according to the substantive rights of the parties, and that the rule that statutes in derogation of the common law must be strictly construed shall not apply either to the act or rules made pursuant thereto.

The defendant has raised the question of the insufficiency of the proof in this regard for the first time in this court. It may not be permitted to do so. Graham v. City of Chicago, 346 Ill. 638, 644.

For the reasons indicated the judgment will be affirmed.

Affirmed.

O’Cohhor and McSurely, JJ., concur.