author: Mr. Justice, Niemeyer

text:
    Life Printing and Publishing Company, Inc., Appellant, v. Marshall Field III et al., Appellees.
    Gen. No. 43,482.

      Heard in the first division of this court for the first district at the October term, 1945.
    Opinion filed January 7, 1946.
    Released for publication January 21, 1946.
    Irving Breakstone, of Chicago, for appellant.
    Mayer, Meyer, Austrian & Platt, of Chicago, for appellees; Jacob X. Schwartz, of Chicago, of counsel.
   Mr. Justice, Niemeyer

delivered the opinion of the court.

This is the second appeal by plaintiff from judgments striking its complaint and dismissing its cause in actions brought, by it to recover damages alleged to have been suffered as the result of the publication by defendants of several articles relating to the Gentile Co-operative Association, an anti-Semitic organization.

The publications complained of and the complaint filed by plaintiff are substantially set forth in our former opinion. (324 Ill. App. 254.) .The complaint in the present action is essentially the same as in the first, except for additional allegations relating to special damages. The first action was based upon the theory that the publications complained of were libelous. In sustaining the judgment of the lower court in dismissing plaintiff’s action, we said (p. 260): “Plaintiff being a corporation, no question of personal reputation can be involved, and the defamation must assail its financial position, its business methods, or accuse it of fraud or mismanagement. 33 Am. Jur., Libel and Slander, sec. 193, pages 183, 184, citing National Refining Co. v. Benzo Gas Motor Fuel Co., 20 F.2d 763, and Axton-Fisher Tobacco Co. v. Evening Post Co., 169 Ky. 64. Words spoken or written of a stockholder or officer give no right of action to the corporation unless spoken or written in direct relation to the trade or business of the corporation. If they relate solely to the stockholder, officer or employee in his private or personal capacity, only the individual can complain. Brayton v. Cleveland Special Police Co., 63 Ohio St. 83; Adirondack Record, Inc. v. Lawrence, 202 App. Div. 251, 195 N. Y. S. 627; Midland Pub. Co. v. Implement Trade Journal Co., 108 Mo. App. 223; Memphis Tel. Co. v. Cumberland Tel. & Tel. Co., 145 Fed. 904; Willfred Coal Co. v. Sapp, 193 Ill. App. 400, 405, 414,” and (p. 263): “The articles complained of were published to expose and denounce the Gentile Co-operative Association and its founders and promoters. Plaintiff concurs in the denunciations. The statements as to the residence of Ferree and his occupation as publisher of Cicero Life were merely incidental and for the purpose of identifying him. On the motion to dismiss and on this appeal these statements must be regarded as untrue. However, there is not the slightest intimation of any wrongdoing or impropriety of conduct at the alleged residence or in connection with his alleged occupation as publisher of the Cicero Life. Whatever is said derogatory to Ferree is in connection with the Gentile Co-operative Association and his part as an incorporator of it. Nothing is said of Ferree or of Flitcraft in relation to the business of plaintiff corporation . . .”

In the present action plaintiff abandons the libel theory and contends, as stated in its reply brief, “that where as here, a defendant publishes matter, of whatever nature, maliciously intending to injure the plaintiff, and the words have the desired effect and do actually produce damage to the plaintiff, which is susceptible of proof, there is an actionable concurrence of loss and injury where an action will lie, even though an action for defamation might not.” (Italics ours.) Plaintiff relies upon American Ins. Co. v. France, 111 Ill. App. 382, 385-386, where it was held that an action by plaintiff would lie against the defendant, a former employee, who had falsely stated “that the plaintiff had gone out of or quit the farm insurance business,” for the fraudulent and malicious purpose of inducing policyholders of the plaintiff to surrender and cancel existing policies of insurance. This decision is based upon cases in which the plaintiffs lost business by reason of false statements directly relating to their businesses and cases where the defendants had maliciously and fraudulently, for the purpose of injuring plaintiffs, caused employees to break their contracts of employment with plaintiffs or quit their employment. We are in accord with the principles of law announced in the several cases as applied to the facts in the respective cases, but such principles are inapplicable to the question before us. Plaintiff’s second action is subject to the same insuperable defect which defeated its first action. The publications complained of relate solely to the alleged officer or employee of the plaintiff in his private or personal capacity and not in his capacity as officer or employee of plaintiff or in connection with the conduct or management of plaintiff’s business. Therefore the right of action, if any, as stated in our former opinion, is in the individual and not the corporation.

The complaint is also subject to the defense of res judicata, raised by defendants’ motion for judgment. As said in People v. Harrison, 253 Ill. 625, 629, where a judgment upon a demurrer in a chancery proceeding was held to be res judicata of a subsequent action for a writ of mandamus: “It is argued that the decree, having been rendered upon a general demurrer to the bill, is not a bar to a subsequent action between the same parties for the same cause of action. It is true that a judgment, to be a bar, must have been rendered upon the merits. A judgment that a decíaration is bad is not a bar to a declaration stating facts which do constitute a cause of action. It is, however, settled law that it makes no difference whether the facts upon which the court proceeded were proved by evidence upon issue joined or were admitted by way of demurrer to a pleading stating the facts. In either case the judgment rendered is equally available as an adjudication, and the facts so established cannot be' again drawn in question between the same parties. A judgment upon a demurrer for defect in the pleadings will not bar another action for the same cause, but a decision upon the merits of a cause of action or defense upon demurrer will be a bar in a subsequent proceeding upon the same facts.” (Cases cited.) The court further said (p. 628): “Nor is it material that other or additional reasons or arguments are now brought forward for granting the relief sought. The doctrine of former adjudication extends not only to the questions actually decided, but to all grounds of recovery or defense which might have been presented. Godschalk v. Weber, 247 Ill. 269.” The latter quotation is particularly applicable to the present case, where plaintiff, relying upon the same facts and seeking the same relief — compensation for damages alleged to have been sustained by reason of the publications complained of, as in the first case — merely changed its theory as to the grounds of recovery. Other cases are Marie M. E. Church of Chicago v. Trinity M. E. Church of Chicago, 253 Ill. 21, and Midlinsky v. Rubin, 341 Ill. 378, 385.

The trial court properly sustained defendants’ motions on the ground of res judicata, as well as failure to state a cause of action in the complaint, and the judgment is affirmed.

Affirmed.

Hatchett, P. J., and O’Connor, J., concur.


source: Caselaw Access Project

author: Mr. Justice Niemeyer

license: Public Domain

text:
    Alex F. Talbot, Appellee, v. Lyman A. Stanton, Appellant.
    Gen. No. 43,521.
    Heard in the first division of this court for the first district at the October term, 1945.
    Reversed and remanded with directions.
    Opinion filed January 7, 1946.
    Released for publication January 21, 1946.
    Winston, Strawn & Shaw, of Chicago, for appellant.
    England & O’Toole, of Chicago, for appellee.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Defendant appeals from a judgment entered against him on trial before the court without a jury after denial of defendant’s motion for a change of venue on the ground of prejudice of the presiding judge.

Action against the defendant was commenced March 30, 1944 by plaintiff as assignee of a judgment entered December 19,1931 in favor of the Citizens National Bank of Chicago Heights against defendant for the amount due on the judgment; on April 11, 1945 an amended complaint was filed, to which defendant filed a motion to dismiss alleging another action pending involving the same claim; on September 24, 1945, after the present appeal was perfected, an order was entered nunc pro tunc as of May 17, 1945 denying plaintiff’s motion for a judgment for failure of the defendant to plead or answer the complaint, and overruling defendant’s motion to dismiss the suit; on the same date a second order was entered nunc pro iunc as of June 5, 1945 continuing plaintiff’s motion for a judgment for failure of the defendant to answer the complaint to June 8, 1945 without further' notice. June 6, 1945 defendant served notice on plaintiff’s attorneys that on June 8, 1945 defendant would present his petition for change of venue; on the latter date the trial judge, whose alleged prejudice is the ground for the change of venue, entered an order denying the change of venue, calling the cause for trial as a non-jury matter and, upon hearing all of the evidence adduced, finding the issues in favor of the plaintiff, assessing the plaintiff’s damages at $19,502.95 and entering judgment for that amount. The only point urged for reversal of the judgment is the refusal of the trial judge to grant the change of venue.

The defendant’s petition was in proper form and duly verified as required by the statute. No discretion was given to the court, and defendant’s right to a change of venue was absolute (People v. Scott, 326 Ill. 327) unless, as contended by plaintiff, the motion came too late or defendant waived his right by being present and participating in the trial which followed refusal of his motion. Plaintiff relies upon the case of Commissioners of Drainage Dist. No. 1 v. Goembel, 383 Ill. 323, where the court said (328/329): “If the hearing on legal objections to the petition is to be deemed as a part of the hearing of legal objections to the assessment roll and the trial on benefits, then it must be said that the application for change of venue came after the hearing started and was too late. The similarity of questions raised as to each set of legal objections shows that appellants treated the two hearings as one. When the court ruled on the objections to the petition, appellants knew what the judge’s attitude would be when the same objections were filed to the assessment roll. Under the circumstances each hearing must be taken to be a part of the whole proceeding. Appellants undertake to base their belief of the- judge’s prejudice upon the statements Judge Ludens made a few days previous to the filing of the petition for change of venue. The time of becoming acquainted with that fact merely overcame the bar raised by section 6 of the Venue Act and did not meet the requirement that the application must be made before the hearing starts.” The present case is easily distinguished. The record does not show that plaintiff’s motion for judgment for failure of defendant to answer the complaint was presented to and was under consideration by the court when the motion for change of venue was presented; there is no suggestion that the court had given any intimation of his views respecting that motion; no order was entered on the motion; no answer of defendant was on file; defendant was not defaulted and the case was not at issue at the time of the trial, which the order of the court shows was had; it was not being called for trial. The motion was made in apt time. Yedor v. Chicago City Bank & Trust Co., 323 Ill. App. 42, 58, and cases cited.

Upon denial of the petition for change of venue the case was heard by the motion judge from whom the change was sought, the record reciting: “Thereupon this cause being called for trial as a non-jury matter come the parties to |his suit by their respective attorneys respectively.” Plaintiff contends that this shows participation in the trial by defendant’s attorneys, constituting a waiver of the right to change of venue. To so hold would make the right to a change of venue of little practical use. A litigant having a meritorious cause of action or defense, who was wrongfully denied a change of venue would suffer a judgment to be entered against him as in case of default if he elected to stand on his- petition. If he waived his right under his petition for change of venue he would submit his cause or defense to a prejudiced judge. In-either case the purpose of the statute would be defeated. As said in People v. Scott case 326 Ill. (p. 341): “The spirit of our laws demands that every case, whether a statutory proceeding or otherwise, shall be fairly and impartially tried, and no judge should think of presiding in a case in which his good faith in so doing is open to such serious question as that presented by this record. These provisions of the statute should receive a broad and liberal, rather than a technical and strict, construction, and should be construed so as not to defeat the right attempted to be attained therein.” In passing on a litigant’s right to participate in a trial following denial of his motion for a change of venue, the Supreme Court in Gillette v. Aurora Rys. Co., 228 Ill. 261, said (p. 268): “It is also urged that this error in denying a change of venue was waived by the defendants going to trial without protesting, and counsel cite the case of DuQuoin Water-Works Co. v. Parks, 207 Ill. 46, as supporting that claim. That case and other like cases have no relevancy to this question. There a change of venue had been granted and the venue changed to another judge. Two years afterward the judge who had been disqualified heard the cause and the defendants failed to call his attention to the disqualification. In such cases it has been considered that a judge might overlook or not recall the fact, and it is the duty of a party affected by the disqualification to call attention to it. In this case the court overruled the motions and ordered the parties to proceed at once with the trial, and they excepted. The court denied the motions under an erroneous view of the law, and as the denial was prejudicial error, it is ground for a reversal as to the appellants who applied for a change of venue.” That ease was decided at a time when exceptions to the ruling of the trial court were required. This is no longer the practice. (Sec. 80, Civil Practice Act, Ill. Rev. Stat. 1945, ch. 110, par.- 204 [Jones Ill. Stats. Ann. 104.080].) Directly opposite is the holding in Patek v. Baim, 299 111. App. 405, relied upon by plaintiff, where the court, we believe erroneously, followed Noyes v. Kern, 94 Ill. 521. The Noyes case is analogous to Du-Quoin Water-Works Co. v. Parks, 207 Ill. 46, distinguished in the Gillette case, supra, and held to have no relevancy to the question being considered. Plaintiff also relies upon City Nat. Bank & Trust Co. of Chicago v. Sewell, 300 Ill. App. 582, which cited Kerner v. Peterson, 368 Ill. 59, 81. Examination of the record in the Sewell case shows that appellants continued to participate in the proceedings before the trial court after denial of their petition for change of venue, but the effect of that participation as a waiver of the right to a change of venue was not considered. In that case and in the Kerner case the reviewing court refused to consider the alleged error of the trial court in refusing to grant a change of venue because the appellants were also asking the court to consider the cases on the merits, for the reason, as stated by the Supreme Court, that if the point as to refusal to grant a change of venue was well taken, consideration of the merits would be unnecessary. No authority is cited in support of this ruling which abrogates the uniform practice of the Supreme Court of considering on appeal questions relating to change of venue and to the merits of the case. McGoon v. Little, 7 Ill. (2 Gilm.) 42; Knickerbocker Ins. Co. v. Tolman, 80 Ill. 106; Carrow v. People, 113 Ill. 550; Cantwell v. People, 138 Ill. 602; Gillette v. Aurora Rys. Co., 228 Ill. 261; People v. Gerold, 265 Ill. 448; People v. Smith, 281 Ill. 538; People ex rel. Little v. St. Louis Merchants Bridge Co., 282 Ill. 408; Sproul v. Springman, 316 Ill. 271; People v. Scott, 326 Ill. 327. A change of venue is a substantial right of a litigant, not merely a matter of practice. Agar Packing & Provision Corp. v. United Packinghouse Workers of America, 311 Ill. App. 502; Krueger v. Cummings, 314 Ill. App. 492. “It is but the utterance of a legal platitude to say that it is of the utmost importance that every man should have a fair and impartial trial of his case, and that to secure this great boon two things are absolutely essential — an impartial jury, and an unbiased judge. But we go further and say that it is also important that every man should know that he has had a fair and impartial trial, or, at least, that he should have no just ground for the suspicion that he has not had such a trial.” Kentucky Journal Pub. Co. v. Gaines, 139 Ky. 747,110 S. W. 268. The right to a change of venue is not affected by the fact that there is no merit in the cause or defense in the party seeking the change (Knickerbocker Ins. Co. v. Tolman, 80 Ill. 106), or by the fact that there is no error in the subsequent proceeding. In Rugenstein v. Ottenheimer, 78 Ore. 371, 152 Pac. 215, where it was held that the trial court erroneously refused to grant a change of venue because of alleged prejudice of the trial judge, the court said: “It is true, as suggested by counsel for respondent, that a careful examination of the record fails to disclose any indication of bias or prejudice in the subsequent trial, but we approve what is said in the case of Massie v. Commonwealth, 93 Ky. 588, 20 S. W. 704; ‘But, it is said, the record, so far as the judge’s rulings are concerned, indicates no hostility or prejudice against th'e appellant. But that is not the question; for the accused has the right to be tried by a judge that is fair and impartial, and when he has good reason to believe, supported by facts, that he will not afford him such trial, he should not be compelled to take chances of a trial before that judge in order that the truth of the matter may be developed, . . . because there are many ways that a partial or prejudiced judge may knife a party that he is trying without it appearing from the record or without his being able to ascertain the fact. So, when the fact is made to appear by proper affidavits, the judge should then vacate, and it is a reversible error if he does not.’ ”

The motion having been made in apt time upon a petition in proper form, and the right not having been waived by defendant, it was error to deny the change of venue, and all subsequent orders except those entered nunc pro tune to correct the record should be rescinded. Yedor v. Chicago City Bank & Trust Co., 323 Ill. App. 42; Mockler v. David F. Thomas & Co., 273 Ill. App. 121, 125.

The judgment is reversed and the cause remanded with directions to grant the change of venue and to rescind the judgment.

Reversed and remanded with directions.

Hatchett, P. J., and O’Connor, J., concur.


text:
    L. H. Horn et al., Appellants, v. Illinois Central Railroad Company et al., Appellees.
    Gen. No. 43,593.

      Heard in the first division of this court for the first district at the October term, 1945.

      Opinion filed January 7, 1946.
    Beleased for publication January 21, 1946.
    Irvin C. Mollison, of Chicago, for appellants.
    David & Fainman, of Chicago, for appellees; Sigmund W. David, of Chicago, of counsel.
   Mr. Justice Niemeyer

delivered the opinion of the court.'

Plaintiffs appeal from a judgment dismissing their amended complaint in an action for damages resulting from denial to them, because of race and color, of the free and equal accommodations, advantages, facilities and privileges of a restaurant or eating house possessed, owned, conducted, operated and controlled by defendants in, at and upon the station and premises of the defendant railroad company in Centralia, Marion County, Illinois. The appeal, taken to the Supreme Court, was transferred to this court.

The original complaint, consisting of one count, was based on the Civil Bights Act (Ill. Rev. Stat. 1945, ch. 38, pars. 125 to 128 [Jones Ill. Stats. Ann. 22.01-22.04]), which provides that any person who shall violate the Act “by denying to any citizen, except for reasons applicable alike to all citizens of every race and color, and regardless of color or race, the full enjoyment of any of the accommodations, advantages, facilities or privileges” enumerated in the Act, including those of restaurants, eating houses and railroads, “shall for every such offense, forfeit and pay a sum not less than $25 nor more than $500 to the person aggrieved thereby, to be recovered in any court of competent jurisdiction, in the county where said offense was committed . . . .”

Defendants having questioned, by motions to dismiss, plaintiffs ’ right to institute their action in the superior court of Cook county, plaintiffs filed an amended complaint setting up the original complaint as count one, and adding three counts. The second count of the amended complaint alleged that the acts complained of in count one were violations of the Public Utilities Act. (Ill. Rev. Stat. 1945, ch. 111⅔, pars. 10, 38 and 77 [Jones Ill. Stats. Ann. 112.027, 112.057, 112.100].) Counts 3 and 4 were based upon an alleged common law liability of the defendants to furnish equal accommodations, etc., to all persons regardless of color or race in the restaurant of defendants, and are identical except for an addition of a paragraph in count 4 claiming exemplary damages. To this amended complaint defendants filed their several motions to dismiss the action, in which, as to count one, they again questioned plaintiffs’ right to recover under the Civil Bights Act in a proceeding brought in the superior court of Cook county; as to counts 2, 3 and 4 they alleged failure to state a cause of action and interposed the defense of the statute of limitations. These motions were allowed and plaintiffs’ cause dismissed. Thereafter plaintiffs moved to vacate the order of dismissal and for a rule on defendants to answer the amended complaint, and filed in support of the motion an affidavit of one of the plaintiffs setting out facts which would have been material on a motion for leave to file a second amended complaint, had such motion been made. The matters stated in the affidavit cannot be considered on the questions presented by this appeal. The sufficiency of the amended complaint must be determined by the allegations of the complaint, unaided by any affidavit of facts supporting and amplifying the allegations of the complaint. Hart v. Tolman, 1 Gilman 1; Fish v. Farwell, 160 Ill. 236, 253; Dunlap v. Brotherhood of Railroad Trainmen, 206 Ill. App. 209.

The Civil Bights Act, as applied to restaurants and eating houses, creates a cause .of action unknown to the common law. 10 Am. Jur., Civil Bights, sec. 17, page 910; Brown v. J. H. Bell Co., 146 Iowa 89, 95, 96; Grace v. Moseley, 112 Ill. App. 100, 102. As to common carriers and innkeepers, it gives to the person aggrieved, if his action is brought in the county where the discrimination occurred, a remedy differing from the common law remedy in that the minimum and maximum damages to be recovered are fixed by the statute. The action created by the Civil Rights Act is, as plaintiffs contend, a transitory action the venue of which may be fixed by the legislature. Mapes v. Hulcher, 363 Ill. 227, 230, 231. In the statute the legislature fixed the venue of the civil action thereby created “in the county where said offense was committed,” and although the Act was amended several times since its enactment in 1885, this provision has not been changed. The venue thus fixed is preserved by section 9, subparagraph 2 of the Civil Practice Act [Ill. Rev. Stat. 1945, ch., 110, par. 133, subpar. (2); Jones Ill. Stats. Ann. 104.009, subpar. (2)], which provides: “Any action which is made local by any statute shall be brought in the county designated in such statute.” Plaintiffs, however, contend that defendant The Interstate Co., being a foreign corporation licensed to do business in this State and having a registered agent located in Cook county, had no lawful right to object to the jurisdiction of the superior court of Cook county. In Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U. S. 165, cited by plaintiffs, the court quotes from the opinion of Judge Cardozo in the case of Bagdon v. Philadelphia & Reading Coal & Iron Co., 217 N. Y. 432, where he says that the designation of an agent by a foreign corporation for the service of process “deals with jurisdiction of the person. It does not enlarge or diminish jurisdiction of the subject-matter. It means that whenever jurisdiction of the subject-matter is present, service on the agent shall give jurisdiction of the person.” It necessarily follows that where the court is without jurisdiction of the subject-matter, service on the agent does not give jurisdiction of the person, and the defense that plaintiffs’ action under the Civil Eights Act was instituted in the wrong county was available to The Interstate Co., as fully as to any other defendant.

Count 2 seeks recovery under the Public Utilities Act, section 10 of which, in so far as the same is applicable to the present case, defines the term “public utility” as meaning and including every corporation which “May own, control, operate, or manage, within the State, directly or indirectly, for public use, any plant, equipment or property used or to be used for or in connection with the transportation of persons or property . . . .” Transportation of persons includes “any service in connection with the receipt, carriage and delivery of the person transported and his baggage, and all facilities, used or necessary to be used in connection- with the safety, comfort and convenience of the person transported.” The statute (section 8) recognizes that a- public utility may be engaged in carrying on a business other than that of a public utility, which other business is not subject to the jurisdiction of the commission created by the statute except in so far as inquiry, examination and inspection by the commission may be necessary to enforce the provisions of the Act." There is no allegation in the amended complaint that either of the defendants at the time and place in question was a common carrier engaged in the transportation of persons. As to the defendant railroad company such allegation was unnecessary because judicial notice of the fact will be taken by the courts. Lindelsee v. Chicago, O. & P. Ry. Co., 226 Ill. App. 20; 20 Am. Jur., Evidence, see. 93. In count 2 it was alleged as a conclusion that defendants “were at said place and time public utilities within the meaning of ‘An Act concerning public utilities . . . .’ ” It is nowhere alleged that the restaurant or eating house involved herein was “used or to be used for or in connection with the safety, comfort and convenience of the person transported” or to be transported. On the contrary it is specifically alleged “that said restaurant or eating house was managed, controlled, operated and conducted for the convenience, benefit and accommodation of the general public.”- There is no allegation that the plaintiffs were passengers or patrons of a railroad company engaged in the business of a common carrier or that they were on the premises of the defendant railroad company at the time with the intention of becoming such passengers or patrons, or that as such passengers .or patrons, actual or intended, they entered the restaurant for the purpose of being served and were then denied such service, equal accommodations, facilities, etc., as were furnished and offered to other persons. In Fred Harvey v. Corporation Commission of Oklahoma, 102 Okla. 266, 229 Pac. 428, the court passed upon an order of the Corporation Commission ordering the Fred Harvey company to cease and discontinue in Oklahoma its order or regulation under which it refused to admit a gentleman patron to its dining-rooms where meals table d’hote were served unless he wore a coat, thus requiring him, if he would dine coat-less, to eat at Fred Harvey’s lunch counter where only a la carte service was had and food was relatively higher priced than in the dining room; the Harvey company was operating a number of dining rooms and lunch counters in the stations of the'Santa Fe railroad in Oklahoma; interstate passengers of the railroad constituted the greater portion of the patrons affected by the regulation of the restaurant company, which also served the general public, who while dining with it were not passengers of the railroad company or connected with its commerce. The court said: “In so far. as the order may affect patrons not connected with either interstate or intrastate commerce, neither the Interstate Commerce Commission nor the Corporation Commission has jurisdiction to make it, unless it be made to affirmatively appear necessary for the benefit of such commerce.”

Our courts have recognized the difference in the liability and rights of a railroad company in the conduct of its business as a common carrier or public utility and when engaged in transactions outside the scope of such business. In Checkley v. Illinois Cent. R. Co., 257 Ill. 491, where the court was considering the provisions of a lease of a portion of the right of way of the railroad for a warehouse' exempting the railroad company from liability for damages caused by fire by reason of the proximity of the premises leased to the railroad operated by the lessor and the movement or use of locomotive engines and cars on its tracks, the court said (p. 495): “But the lease by appellee of a portion of its right of way for a warehouse does not relate to any of the duties imposed by the law upon appellee as a common carrier. The public is in no way concerned in this transaction, nor is it a matter of public interest whether the loss of the property destroyed by fire shall fall on one party rather than on the other. The situation is entirely different between the loss of this warehouse and its contents and the loss of goods entrusted to a carrier for transportation. In the latter case the public has an interest which is conserved by holding the carrier to a strict accountability for its negligence or that of its servants, and this for the plain reason that the public is compelled to employ the carrier to transport goods. Any member of the public is liable to require the services of a common carrier, and the carrier is under the legal duty of serving the public indiscriminately. Not so in regard to leasing a part of its fight of way for a warehouse or an elevator. While the .railroad company has the power to make such lease if it does not interfere with its duties to the public, it is in no sense required to do so. No one could compel a railroad company, by mandamus, to lease- its right of way for such purposes. It relates to a matter that is entirely within the discretion of the railroad company. In testing the validity of the lease under consideration, the circumstance that one party to it is a railroad corporation and engaged in the service of the public as common carrier is not of controlling importance. Indeed, it is difficult to see that it is of any importance whatever.” This case was followed in Bartee Tie Co. v. Jackson, 281 Ill. 452. State v. Baltimore & O. R. Co., 48 Md. 49, distinguished between hotels operated for the accommodation of passengers over its road and necessary to its business and other hotels used primarily as places of summer resort but not in any sense necessary to the operation of the road though they might attract travel over it. The former hotels were held to be exempt from taxation under the charter of the railroad company, but such exemption was denied as to the summer resort hotels.

In the absence of allegations showing the operation of the restaurant or eating house involved herein in connection with the transportation of persons •or property by the defendant railroad, the restaurant or eating house is not within the Public Utilities Act, and no rights thereunder can accrue to the plaintiffs. It is therefore unnecessary to discuss other points relating to the Public Utilities Act raised by the parties.

What we have said above disposes of counts 3 and 4, which are based upon an alleged common law liability. There is no common law duty of a railroad operating a restaurant or eating house to serve all patrons without discrimination, unless such restaurant or eating house is operated for and conducted in connection with the accommodation and convenience of its passengers and patrons, actual or intended, and the person alleging discrimination is such passenger or patron. Bach count of the amended complaint is based on the same transaction or occurrence alleged in the original complaint, and the defense of the statute of limitations cannot be sustained. Civil Practice Act, section 46; Metropolitan Trust Co. v. Bowman Dairy Co., 369 Ill. 222.

The trial court did not err in sustaining defendants ’ motions and dismissing plaintiffs’ action, or in refusing to vacate the order of dismissal. The judgment is affirmed.

Affirmed.

Matchett, P. J., and O’Connor, J., concur.


author: Mr. Justice O’Connor Per Curiam :

text:
    Herman S. Strauss, Trustee, Appellant, v. Philip A. Danielson, Appellee.
    Gen. No. 43,434.
    Heard in the first division of this court for the first district at the June term, 1945.
    Opinion filed January 7, 1946.
    Rehearing denied January 21, 1946.
    Released for publication January 21, 1946.
    Richard Weinberger, of Chicago, for appellant.
    Wilhartz & Hirsch, of Chicago, for appellee; Samuel E. Hirsch, Julian H. Levi and William Ruger, all of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Herman S. Strauss, as trustee, brought an action at law against defendant, Philip A. Danielson, on a written guaranty dated March 15,1927. The cause was afterward transferred to the chancery side of the court and after hearing, a decree was entered dismissing the suit for want of equity. An appeal was taken to this court where the decree was reversed in part, affirmed in part and remanded with directions. Strauss v. Danielson, 323 Ill. App. 254. After the mandate of this court was filed in the trial court, the chancellor who had heard the case, entered an order transferring the cause to the head of the chancery division for reassignment and accordingly the head of the chancery division reassigned it to another chancellor. The case was then heard and a decree entered in plaintiff’s favor for $4,726.16. Plaintiff, claiming that the decree should have been for a much larger srnxq appealed to this court. While the cause "was pending here Mr. Strauss, the trustee, died and upon a petition filed in the foreclosure suit in the Circuit court, The Trust Company of Chicago was appointed successor trustee and it was substituted as plaintiff by order of this court. The facts are stated in our former opinion and will not be repeated here. Suffice it to say that there was a decree of foreclosure and for a reorganization. The holders of 95 per cent of the amount due on the bonds joined in the reorganization proceeding and deposited their bonds, as required, while bondholders who held bonds of the face value of $12,800 refused to join in the reorganization and refused to deposit their bonds. As above stated, the court entered a decree dismissing the suit for want of equity. We affirmed the decree as to the depositing bondholders but reversed it as to the non-depositing bondholders and remanded the cause for the reason that the record failed to disclose how much was due on the non-depositing bonds.

After the remandment, on the hearing before the chancellor, the court entered a decree for the amount due on the bonds which had been produced on the hearing, aggregating $4,726.16. He refused to allow any sum on the non-deposited bonds which plaintiff was unable to produce. The guaranty provided that:

‘ ‘All rights of action under this guaranty may be enforced by the Trustee above named as the Trustee of an expressed trust on behalf of any bondholders without the production of the bonds or coupons (or without said Trustee owning or holding any of said bonds or coupons) on any trial or other proceedings relative thereto, and any suits or proceedings instituted by the Trustée shall be brought in the name of the Trustee as such Trustee.” The chancellor, in deciding the case said in substance that he did not want to enter a decree against Mr. Danielson for a bond which was not produced for the reason that the money would ,be paid to the trustee but the bond might be lost and the trustee never called upon to disburse the money. The court there said: ‘ ‘ That is my best judgment. I am going to give you judgment on the bonds that are in here and prorate the funds that were paid to the Philip State Bank in the interest and amortization fund, enter judgment for that amount.

“I will heed the admonition of the Appellate Court in its opinion and I think what was intended was the production of the bonds here.”-

The written guaranty guaranteed the payment of the mortgage bonds aggregating $430,000. It further provided “Diligence, presentment and demand are hereby waived, it being the intent hereof that the undersigned shall remain, jointly and severally, liable as Principals,” and that all rights of action under the guaranty may be enforced by the trustee and were independent of and in addition to the rights and remedies of the trustee, etc.

We think the court erred in failing to enter judgment for the amount due on the non-deposited bonds the face value of which, as we said in our former opinion, was $12,800. The guaranty expressly provides that the bonds need not be produced. Since we were unable to ascertain from the record how much was due on these bonds we reversed that part of the decree and remanded the cause for that purpose.

Counsel for defendant in their brief say: “Defendant contended, however, and now contends, that it was necessary for plaintiff either to produce the bonds or to offer some other competent proof as to indebtedness,” and say there was no evidence offered by plaintiff as to the amount due on the bonds involved. And they point to paragraph 7 of the decree which states that the court further finds that “Except as to bonds so produced, plaintiff has made no other proof of the indebtedness owing to non-depositing bondholders and plaintiff is not entitled to recover as to any other bonds or claims; plaintiff has not shown that other non-deposited bonds are in existence and has not offered any competent proof as to said indebtedness and that defendant is indebted thereon. ” But in the next paragraph of the decree the court also found that: “On December 21, 1944 the court stated he would find for defendant as to all non-deposited bonds which plaintiff was unable to produce. The hearing was continued to January 11, 1945 at plaintiff’s request at which time plaintiff stated he could produce only above enumerated bonds; by reason .of lapse of time and failure to produce, it must be presumed that no other non-deposited bonds are now in existence.”

Upon consideration of what the court said in deciding the case, as above referred to, and the findings of the decree, we think it appears that the chancellor held that no allowance could be made unless the bonds were produced. We think this was error. The guaranty which is the basis of the suit expressly provided that the trustee could maintain a suit on behalf of any bondholders without,the production of the bonds and coupons.

. Counsel for plaintiff in Ms brief says that, applying the formula used by the trial court in determining the amount due on the produced bonds, to the bonds not produced, there remains due $11,493.01 and the detail of this is set forth in his briefs. Defendant’s brief was later filed by his counsel but they make no objection or reference to the items which go to make up the $11,493.01, except to say: “Now, as to the other alleged indebtedness, plaintiff presented to the trial Court and now to this Court a record in which plaintiff himself admits that he does not know whether there are any other bondholders or whether they exist and he doesn’t know whether the bonds exist. The blunt truth of the matter is that if this Court were to enter judgment for the sum of $11,493.01, as now requested by plaintiff (see plaintiff’s brief, p. 13), neither this Court nor defendant, nor plaintiff for that matter, would have any way of knowing whether or not the bonds upon which this judgment would be entered, were actually in existence, and whether or nqt any holder or owner was in existence. If defendant paid the judgment, he would haye no way of knowing what he paid and who he paid. If plaintiff got the money, plaintiff would have no way (according to Strauss’ own testimony) of knowing whether the bonds supposed to have been paid by the judgment were outstanding or even in existence, and whether or not there was even a holder.”

Counsel for defendant further contend that the appointment of The Trust Company of Chicago as successor trustee is void. The appointment of the successor trustee was made by the Circuit court in the foreclosure suit and afterward, September 4, 1945, we allowed plaintiff’s motion to substitute The Trust Company of Chicago successor trustee over the objections filed to the motions by the defendant. By allowing the substitution, that matter has been disposed of.

The decree of the Superior court of Cook county is reversed and the cause remanded with directions to enter a decree allowing the further sum of $11,493.01.

Reversed and remanded with directions.

Hatchett, P. J., and Niemeyer, J., concur.

Per Curiam :

Plaintiff’s motion to correct the foregoing opinion so as to allow interest on the amount found due at the rate of 5 per cent per annum from April 30, 1935, ,to the date of the decree has been allowed and the opinion is accordingly corrected by adding to the last sentence of the opinion the following: together with interest thereon at 5 per cent per annum from April 30, 1935, to the date of the decree.


author: Mr. Justice O’Connor

text:
    John Irwin, Successor Receiver et al., Appellants, v. Edward Schleichert and Hattie M. Schleichert, Appellees.
    Gen. No. 43,444.

      Heard in the first division of this court for the first district at the June term, 1945.
    Opinion filed January 7, 1946.
    Released for publication January 21, 1946.
    Aaron Soble and Martin S. Gerber, both of Chicago, for appellants.
    Clones & Cavender, of Chicago, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.

May 12, 1944, John Irwin, as receiver, and David Sterling, as a creditor of the Marshall Square State Bank, and Aaron Soble, as administrator of the estate of Emilia Sehleichert, deceased, filed a creditors’ bill against Edward Sehleichert and Hattie M. Schleichert, his wife, to set aside two conveyances to a two-apartment building in Chicago, on the ground that the conveyances were fraudulent. Defendants denied the charges, the cause was referred to a master in chancery to take the evidence and make up his report together with his recommendations, which the master did and, among other things, found there was no fraud and recommended that the complaint be dismissed for want of equity. Objections to his report were overruled, they were ordered to stand as exceptions, the chancellor overruled the exceptions, approved the report, entered a decree dismissing the complaint for want of equity and plaintiffs appeal.

The record discloses that Albert Sehleichert and Emilia, his wife, owned the two-apartment building as joint tenants. Albert owned 40 shares of the capital stock of the Marshall Square State Bank of the par value of $100, which was in no way involved here. His wife, Emilia, also owned 40 shares of the same stock and on April 1, 1931, they executed a warranty deed conveying the premises to their married daughter, Selma Kostulski, for and in consideration of $10 “and other good and valuable considerations and love and affection.” The deed was recorded.May 28, 1931, The Marshall Square State Bank was closed October 2, 1931, and never reopened. It was apparently liquidated in the usual way by the Auditor of Public Accounts. On the day the bank closed, viz., October 2, 1931, plaintiff, David Sterling, as a creditor of the bank, brought a representative suit against the stockholders to enforce the constitutional liability. Prior to the filing of this suit Albert Sehleiehert died June 3, 1932, and Emilia, his wife, died October 28, 1938. August 28,1937, Selma Kostulski, the daughter of Albert and Emilia Sehleiehert, and her husband Casimir Kostulski, by quit claim deed conveyed the property to the defendants, Edward Sehleiehert and Hattie M. Sehleiehert, his wife, in consideration of $1 and other good and valuable considerations.

August 23, 1934, judgment was entered in the creditors’ suit against Emilia Sehleiehert for $4,000 and some time afterwards an execution issued which was returned by the sheriff no part satisfied. Nothing further was done until May 4, 1942, when David Sterling as a creditor in the stockholders’ suit and the then receiver of the bank appointed in that suit, filed their complaint in equity against defendants, Edward and Hattie Sehleiehert, to set aside as fraudulent the conveyance of the property and to subject it to the payment of the judgment of $4,000. (On the oral argument counsel for plaintiffs said that plaintiffs sought only to subject Emilia’s interest to the payment of the judgment.) This suit was dismissed on motion of defendants September 24, 1942. And it appears nothing further was done until the filing of the present suit, May 12, 1944. The present suit is based on a claim allowed by the Probate court against the estate of Emilia Schleichert, deceased, for $5,964.88, being the amount of the $4,000 judgment with interest thereon. All proceedings in the Probate court were brought May 4, 1944, by Aaron Soble, counsel for plaintiffs in the instant case, he was appointed administrator of Emilia’s estate, and as administrator, is one of the plaintiffs here. All of the Probate proceedings were without notice or knowledge of defendants.

The evidence is further that defendant, Edward Schleichert, was born in 1890; he did not graduate from grammar school but, at an. early age, started to work for his parents who conducted a small milk business on the West Side of Chicago, and. he continued in this work until 1917 when he was 27 years of age, at which time he was drafted into the army in the first World War, went overseas and was gassed in France. During the time he worked for his parents he received no compensation other than a living. Upon his discharge from the army he again went to work for his parents but on account of the state of his health he was not able to do the hard work required in the milk business and he then sought other employment. • About 1920 he was married to Hattie Schleichert, the other defendant. About 1920 his parents sold the milk business and purchased the two-apartment building in question and about 1925, moved into one of the apartments. There is further evidence to the effect (and it is found by the master and sustained by the chancellor) that the parents desired to compensate their son, Edward, who was not very strong physically, for the service he had rendered, and to do so they wanted him to eventually own.the building. In addition to Edward,there was born to Albert and Emilia, two daughters, both of whom were married at the time in question, and apparently did not need any financial assistance from their parents. But the parents wanted to reserve their right to live in the apartment and to collect rent from the other apartment in case they needed financial help and they felt they could then look to Edward, and with this in view, they executed the warranty deed April 1, 1931, conveying the property to their daughter, Selma, for the benefit of Edward. After the execution of this deed, Albert and Emilia, his wife, continued to live in > the apartment until Albert died, June 3, 1932. Thereafter Emilia continued to occupy the apartment until the summer of 1937. From the time the deed was executed in 1931, Edward lived in one of the apartments and paid some rent to his father and mother until the father died and until the mother later vacated the premises.

There is further evidence that Edward made considerable repairs on the building and that the daughter, Selma, paid taxes levied on the property from 1931 f until 1937. In 1937 the mother, Emilia, on account of her health, was about to go to a hospital and was in need of money and it was at that time that Selma and her husband conveyed the property by quit claim deed to the defendants, Edward and his wife, Hattie. After the mother vacated one of the apartments, Edward rented it, collected rent from the tenant and paid no further rent to his mother. At the time of the execution of the quit claim deed, Edward paid his mother $2,000 in cash and executed and delivered to her his "note for $2,000 and trust deed conveying the property to the Chicago Title & Trust Co., to secure payment of the note. The evidence as to the payment of the $2,000 in cash is that he cashed his soldier’s bonus check for $1,356.16, withdrew from his savings account two checks, one for $233 and one for $400 and delivered the checks to Selma’s husband who cashed the checks and paid the proceeds to Selma’s mother, Emilia, for the purpose of paying the hospital, doctor bills and other expenses of the mother who died October 28,1938, and the balance of the $2,000 was expended for her funeral expenses.

The mortgage given to secure the other $2,000 was to be used in the event the mother, during her lifetime, needed the money. If she did not require additional money, the mortgage was to be cancelled upon her death. She died shortly thereafter and the mortgage was then cancelled.

The evidence further shows that Edward paid taxes on the real estate from 1938 to and including 1942, and there is further evidence to the effect that neither Edward, his wife, nor his two sisters, Martha or Selma, knew that their mother owned stock in the State Bank or that judgment had been entered against her until the summons was served in the suit filed to set aside the deeds in May, 1942.

There is further evidence and the master found, that from January 28, 1930 to and including April 1, 1931, 12 banks in Chicago were closed and that from April 2, 1931, to and including October 2, 1931, approximately 41 other banks were closed in Cook county; and further that the two deeds and other papers were drawn by Martha’s husband — son-in-law of Emilia Schleiehert— Theodore Szmergalski, who was an attorney at law; that the fair, cash value of the property on August 28, 1937, was $7,000. That at the time of Emilia’s death on October 28, 1938 she left no property to which she held title except the balance of the $2,000 in possession of her daughter, Selma, above referred to.

The master also found there was no evidence offered by either of the parties to the suit showing what property, if any, was owned by Albert Schleiehert or his wife, Emilia, on April 1, 1931 or August 28, 1937 and that the payment of the $2,000 in cash and the execution of the trust deed securing the payment of the note for the other $2,000 were “proved beyond all doubt.” And that the defendant, “Edward Schleiehert and his brother-in-law, Theodore Szmergalski and the other witnesses for the defendants told the truth concerning the transactions complained of by plaintiffs,” and that the master was of opinion that plaintiffs were guilty of inexcusable laches.

As stated, the chancellor approved the master’s report in all things and it was decreed that the suit be dismissed for want of equity.

Counsel for defendants contend that plaintiffs failed to sustain the burden of proof that the transfers were fraudulent; that all the evidence, except some suspicions interposed by plaintiffs, showed the transfers were not fraudulent but were made in good faith. And furthermore, the ■ rule of law announced by the Supreme court in this state is that where the master saw the witnesses and heard them testify, while his conclusion will not be given the weight of the verdict of the jury, his finding, when approved by the chancellor, will not be disturbed unless manifestly against the weight of the evidence, citing McKey v. McKean, 384 Ill. 112; while on the other side, counsel for plaintiffs say that this is not a correct statement of the law, citing Jones v. Koepke, 387 Ill. 97, where it was said that: “It is only where the court has heard the evidence that we have refused to disturb the finding unless it was clearly and manifestly against the weight of the evidence,” and then analyzes the evidence, or lack of it, and says the evidence did not sustain the master. The court there, in speaking of the duty of a court of review when considering the finding of the master, said: “His finding, however, on such questions, and the weight to be given to such finding, depends upon the record in each particular case.”

In Stasch v. Romza, 387 Ill. 67, the rule is announced to be that contended for by defendants, and in Phillips v. W. G. N., Inc., 307 Ill. App. 1, we considered this question and cited authorities and said that whichever rule was followed in that case the result would be the same. So, too, in the case at bar we are of opinion that upon a consideration of all the evidence in the record the finding of the master and the chancellor ought not to be disturbed.

In support of plaintiffs’ contention that there was fraud in the execution of the two deeds, they discuss the evidence and say that it shows that the conveyance of the property on. April 1, 1931, by Albert and Emilia was wholly without consideration and was done merely to avoid Emilia’s liability as a stockholder of the bank, and in support of this cite Kennard v. Curran, 239 Ill. 122, and from that case quote the following: “Appellant contends that the decree cannot be sustained because there is no proof that Curran was insolvent at the time of the conveyances to his wife. Actual insolvency is not necessary in order to render a voluntary conveyance void. If a person largely 'iivdebted makes a voluntary conveyance and shortly after beco.mes insolvent such conveyance will be held fraudulent.” Counsel say the italics are theirs. We think the quotation from the Kennard case is not applicable to the facts in the case before us. Here Emilia, on April 1, 1931, when she and her husband made the conveyance, was not indebted, so far as the record shows, to anyone. She was not indebted on account of her ownership of the bank stock to anyone and could not be indebted or liable for such stock ownership unless and until a demand was made on the bank and payment refused. Sanders v. Merchants State Bank, 349 Ill. 547-564; Burnett v. West Madison State Bank, 375 Ill. 402 and Cohen v. North Ave. State Bank, 291 Ill. App. 558.

In the Sanders case the court said: “Until demand the depositor can maintain no action against the bank and .therefore has no cause of action. The stockholder is liable to the same extent as the bank — that is, to pay upon demand made of the bank in such sums, at such times and to such persons as the depositor may direct. He can be held on no other terms and no action can be maintained against him until demand made on the bank.”

We have considered the other contentions made by counsel for plaintiffs and also the point made by defendants that this court has no jurisdiction and that the appeal should be dismissed but find nothing that would warrant us in not considering the appeal on its merits and in affirming the decree.

The decree of the Superior court of Cook county is affirmed.

Decree affirmed.

Hatchett, P. J., and Niemeyer, J., concur.


text:
    Julia E. Dean et al., Appellants, v. John L. Kellogg and Kellogg Company, Appellees.
    Gen. No. 43,460.

      Heard in the first division of this court for the first district at the October term, 1945.
    Opinion filed January 7, 1946.
    Rehearing denied January 21, 1946.
    Released for publication January 21, 1946.
    Joseph B. Gilbert and Philip C. Sheehan, both of Chicago, for appellants.
    Kirkland, Fleming, Green, Martin & Ellis and Concannon, Dillon, Snook & Arthur, all of Chicago, for appellees; J. B. Martineau and Bruce S. Park-hill, both of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

October 2, 1944, plaintiffs, minority stockholders of Warren-Teed Seed Company, filed their complaint in chancery against defendants, John L. Kellogg, the majority stockholder of the corporation, for an accounting of the corporation’s assets, which it was alleged were fraudulently converted by him to his own use after the dissolution of the corporation; and against defendant Kellogg Company, a corporation, for assets it had received from defendant, Kellogg, with knowledge of the fraud. John L. Kellogg filed his motion to dismiss the suit on the ground that it was barred by the Statute of Limitations (Par. 16, eh. 83-, Ill. Rev. Stats. 1945 [Jones Ill. Stats. Ann. 107.275]); that plaintiffs were guilty of laches in that they were complaining of matters which occurred more than 12 years before the institution of the suit. Defendant, Kellogg Company, corporation, filed its motion to dismiss the suit, setting up the Statute of Limitations, laches, that the matters involved had been adjudged in a decree entered by the Circuit court of Calhoun county, Michigan, April 29, 1939, and other grounds not necessary to mention here. Both motions were sustained, the suit dismissed and plaintiffs appeal.

The material, allegations of the complaint as amended are that plaintiffs are minority stockholders of the Warren-Teed Seed Company, a Nevada corporation, owning131,000 shares of its capital stock consisting of 350,000 of Class A and 400,000 shares of Class B, all of which were without par value. That defendant, John L. Kellogg, since February 24, 1926, was at all times the majority stockholder and in control of the corporation which was engaged in the business of manufacturing and operating seed cleaning machinery and buying, cleaning and selling all kinds of seed with its principal place of business in Chicago. That on November 10, 1930, Seedtown Products, Inc., was organized' under the laws of Delaware, with an authorized capital stock of 350,000 shares of Class A, and 400,000 shares of common stock, all without par value; that John L. Kellogg was one of the directors and the president of the Seedtown Corporation; that the Seedtown Corporation was organized in pursuance of a plan of reorganization by the- terms of which Seedtown was to acquire in exchange for its stock, the business and assets of the Warren-Teed Company and all outstanding capital stock of the Kellogg Terminal Warehouses, Inc., an Illinois corporation.

It is further alleged that the Kellogg Warehouses, Inc., owned 8.64 acres of land improved with several buildings used for warehouses and manufacturing purposes located in Chicago, which properties were valued at $3,000,000, subject to a mortgage of $925,000. That 4,160 shares of its capital stock were outstanding, practically all of which, with the exception of qualifying shares, were owned by defendant, John L. Kellogg. That pursuant to the plan of reorganization, the Seed-town Corporation, on November 14, 1930, acquired all of the outstanding stock of Kellogg Warehouses in exchange for 66,282 shares of its Class A stock and on December 24, 1930, acquired all of the assets of the Warren-Teed Corporation subject to all its liabilities in exchange for 11,094 shares of its Class A and 392.862.2 shares of its common stock. That the Seed-town Company assumed an alleged indebtedness of Warren-Teed Corporation to John L. Kellogg of $219,740.05, a bank loan of $25,000 and an alleged indebtedness of $283,534.18, to the John L. Kellogg Seed Co., a corporation wholly owned by defendant, John L. Kellogg. That as a part of the reorganization the liabilities were cancelled and the bank loan assumed by John L. Kellogg, personally, in exchange for shares of Seedtown on a basis of $15 a share of Class A stock, as a result of which 16,316 shares of Class A stock of the Seedtown Company were issued to John L. Kellogg, and 18,902 shares of Class A stock to the John L. Kellogg Seed Company. That as a result of the reorganization Seedtown acquired assets in excess of $3,750,000, of which $2,200,000 represented a net value of the Kellogg Warehouses; $1,000,000 represented by patents and $480,000 represented seed cleaning machinery, and Warren-Teed became a holding company, its sole asset being 11,094 shares of Class A and-392.862.2 shares of common stock of Seedtown which were never distributed to the stockholders' of Warren-Teed. That because of John L. Kellogg’s control of the several corporations involved in the reorganization he so manipulated the hooks and accounts of the several corporations by means of fictitious and arbitrary entries that Warren-Teed Company, and later Seed-town, were indebted to him and to the John L. Kellogg Seed Co.; that in 1931 the books of the Seedtown Company erroneously showed a fictitious indebtedness to John L. Kellogg in excess of $215,000 and a fictitious indebtedness to John L. Kellogg Seed Company of $65,000; that in June 1931, John L. Kellogg embarked upon a fraudulent scheme to convert the assets of Seed-town to his own use. And to carry out the scheme he filed suit in the Municipal court of Chicago against Seed-town to recover the $215,000 above mentioned, and the interest thereon and on August 4, 1931, judgment was entered by default for $220,006.90; that he caused the dissolution of the Kellogg Seed Company December ll, 1931 and the dissolution of Seedtown December 21, 1931, and permitted the charter of Warren-Teed to be revoked in March, 1932, for failure to file a list of its officers and pay a fee of $7.50; that upon the dissolution of the Seedtown Co., defendant, Kellogg, fraudulently converted to his own use and benefit all of the assets of the Seedtown Corporation without ever ac-' counting for them to the other stockholders. That among the assets fraudulently converted by John L. Kellogg to his own use were secret formulae and inventions for popping cereal grains, particularly rice and wheat formulae and inventions developed by Warren-Teed and its successor Seedtown, which were rightfully the property of those corporations. That afterward John L. Kellogg, unknown to plaintiffs, conveyed some of the assets, including the secret formulae, etc., to the defendant, Kellogg Company, a Delaware corporation, which took such assets with knowledge of the fraud. That afterward defendant, Kellogg Company, proceeded to, use the commercial formulae, etc., and made large profits which, in equity and justice, should belong to the stockholders of Warren-Teed and Seedtown corporations. ‘ ‘ That by reason of the dissolution of Seedtown Products, Inc. title to all of its assets passed by operation of law to its stockholders, of whom the largest was Warren-Teed Seed Company which owned a. majority of the outstanding stock of Seedtown Products, Inc. ’ ’ That by reason of the subsequent dissolution of Warren-Teed “the equitable and legal ownership of its assets passed by operation of law to its stockholders of whom plaintiffs are a number.”

It is further alleged that John L. Kellogg sent a letter dated December 7, 1931, to the stockholders of Warren-Teed Company which owned a big majority of the outstanding shares of Seedtown, urging the immediate dissolution of Seedtown, in which letter statements appeared which were false, which Kellogg knew or by the exercise of due diligence should have known were false; in which letter it was said that Seedtown was indebted to him for some $220,000, and it is alleged in the complaint that, as a matter of fact, upon proper statement of the account, he Kellogg, was indebted to Seedtown in an amount exceeding $190,000 ; that at the meeting of the stockholders of Seedtown, at which its dissolution was voted, Kellogg was the owner or in control of over 500,000 shares of the capital stock, holding it in his various capacities, which number of shares he cast for the dissolution of Seed-town.

It is further alleged that upon receipt of Mr. Kellogg’s circular letter above mentioned, Julia E. Dean, one of the plaintiffs, filed a stockholders’ suit in the Superior court of Cook county to restrain the dissolution of Seedtown, the transfer of any of the corporate property and for an accounting. That the suit was dismissed on April 13, 1933, without an adjudication on the merits and on April 21, 1933, Julia Dean filed a stockholders’ representative suit in the United States District Court in Chicago against John L. Kellogg, W. K. Kellogg and Kellogg Company, for an accounting and for all property and assets appropriated by them for their own use in fraud of the stockholders of Seedtown and Warren-Teed Companies; that that suit was dismissed October 13, 1936, for want of valid service on defendants without an adjudication of the merits. That in May, 1938, plaintiffs in<the case before us, filed another stockholders ’ suit in the Circuit court of Calhoun county, Michigan, against John L. Kellogg, W. K. Kellogg, Kellogg Company, Warren-Teed and Seedtown companies, for an accounting for assets wrongfully misappropriated, etc.; that that suit was dismissed for lack of jurisdiction over the necessary parties, also without passing on the merit; that on March 24, 1942, the defendant, Kellogg Company, a Delaware corporation, was admitted to transact its business in the State of Illinois, and that plaintiffs learned that the Kellogg Company was authorized to do business in Illinois but a few months prior to the filing of the instant suit.

Plaintiffs contend that “A majority stockholder who after the dissolution of a corporation converts the corporation’s property and assets to his own use becomes in equity a trustee for the minority stockholders, and is under a duty to account.” We think this is substantially a correct statement of the law. In Dixmoor Golf Club v. Evans, 325 Ill. 612, which was a suit brought to compel defendants to account for secret profits made by them as organizers of a club while they were also its directors and in the management and absolute control of it the court said the decision of the case depends “upon the fiduciary relation which the directors of a corporation hold to the corporation and to the stockholders. The law is well settled that a trustee cannot without a breach of the trust deal with its subject matter in such a manner as to make a profit for his own benefit. It requires no very keen moral perception to recognize the obvious justice of this universal rule of law, of justice and of morality. The directors of a corporation are trustees of its business and property for the collective body of stockholders in respect to such business. They are subject to the general rule in regard to trusts and trustees, that they cannot, in their dealings with the business or property of the trust, use their relation to it for their own personal gain. It is their duty to administer the corporate affairs for the common benefit of all the stockholders and exercise their best care, skill and judgment in the management of the corporate business solely in the interest of the corporation.”

In Becker v. Billings, 304 Ill. 190, the court, in passing on the relation of the directors of an insolvent corporation said quoting from Gottlieb v. Miller, 154 Ill. 44, (p. 198) that: “ ... ‘At most, the assets of a corporation are, under some circumstances, a quasi trust fund, and the directors or officers of the corporation, under some circumstances, quasi trustees. ’ ” Plaintiffs further contend that a “Mere lapse of time will not constitute laches where, ever since the wrongs complained of were committed, plaintiffs diligently, though unsuccessfully, pursued their remedy and sought to bring defendants to account, and defendants, confessed wrongdoers, were not misled or prejudiced by the delay,” citing a number of Illinois cases and Southern Pacific v. Bogert, 250 U. S. 483. In that case it was held that to constitute laches it was essential that there be acquiescence in the alleged wrong or lack of diligence in seeking a remedy in addition to the lapse of time, and where there was a delay of over 22 years on the part of the minority stockholders in seeking to impress a trust on shares of stock in the new corporation held by a minority, plaintiffs were not guilty of laches where it was shown they had been diligent in attacking foreclosure and reorganization proceedings. And it was further held that long failure to discover the proper remedy, though well known, did not establish laches if there had been due diligence and the delay had not prejudiced the defendants. In that casé there was a reorganization agreement in December 1887, a decree of foreclosure and sale May 4, 1888. The sale was held September 8, 1888, and the stock in the new company was delivered February 10, 1891. The suit was not begun until July 26,1913. In delivering the opinion of the court, Mr. Justice Brandéis said (p. 488): “This suit was not begun until July 26, 1913; and not until that time was there a proper attempt to assert the specific equity here enforced; namely, that the Southern Pacific received the stock in the new Houston Company as trustee for the stockholders of the old. More than twenty-two years had thus elapsed since .the wrong complained of was committed. But the essence of laches is not merely lapse of time. It is essential that there be also acquiescence in the alleged wrong or lack of diligence in seeking a remedy. Here plaintiffs, or others representing them, protested as soon as the terms of the reorganization agreement were announced; and ever since, they have with rare pertinacity and undaunted by failure persisted in the diligent pursuit of a remedy as the schedule of the earlier litigation referred to in the margin demonstrates. Where the cause of action is of such a nature that a suit to enforce it would be brought on behalf not only of the plaintiff but of all persons similarly situated, it is not essential that each such person should intervene in the suit brought in order that he be deemed thereafter free from the laches which bars those who sleep on their rights. Cox v. Stokes, 156 N. Y. 491, 511. Nor does failure, long continued, to discover the appropriate remedy, though well known, establish laches where there has been due diligence and, as the lower courts have here found, the defendant was not prejudiced by the delay.”

Counsel for defendants in their brief say that plaintiffs relied principally on the decision in the Bogert case, but they say that case was decided under the New York law which is not the law in Illinois. And that the mere fact that plaintiffs have been engaged in unsuccessful litigation does not excuse their delay for the reason that it was held in Becker v. Billings, 304 Ill. 190, that the Statute of Limitations would commence to run in favor of directors of a corporation charged with fraudulently appropriating the corporation’s assets either at the time of the doing of the act complained of, or at the time of their discovery.

In the Becker case, a national bank and a state savings bank, which was being operated in the same building and substantially by the same officers and directors, failed December 18, 1905. In 1910 two bills were filed in the Circuit court of Cook county, the first by certain stockholders of the national bank in behalf of themselves and of all other stockholders who might choose to join, and the other by Becker as a stockholder of the state bank, in behalf of himself and all other stockholders who might choose to join him. The bills charged misappropriation and loss of funds of the respectivé banks in consequence of the negligence of Billings in violation of his duties as director. The suit involving the national bank was decided against plaintiffs and an appeal taken to the Appellate and the Supreme courts of this state. “In the meantime the State bank case was continued in the circuit court, the time for filing the amended and supplemental bill being extended from time to time until after the final decision in the National bank case in the Supreme court, in February 1917.” On August 21, 1918, an amended original and supplemental bill was filed in the state bank case. In the original complaint in that case Billings was charged with negligence in failing to attend to his duties as a director. In the amended and supplemental bill filed in 1918, he and the others were charged with fraudulent conduct. The court said (p. 203): “The latter bill, instead of being founded on non-feasance, mere neglect and omission to do anything, charges a fraudulent breach of trust, actual, intentional wrongdoing,” etc. The court held that the amended and supplemental bill stated a new cause of action which was barred by the Statute of Limitations.

Counsel for defendants further contend that the Circuit court of Calhoun county, Michigan, decreed that plaintiffs were “guilty of inexcusable laches” in bringing the suit in Michigan and that decree having been affirmed by the Supreme court of Michigan, Dean v. Kellogg, 294 Mich. 200, it is res judicata and therefore plaintiffs “are foreclosed as to every ground of recovery they might have asserted in the Michigan suit, whether they did so or not.”

That case was brought by plaintiffs against John L. Kellogg, W. K. Kellogg, Kellogg Company, a Delaware corporation, Warren-Teed Seed Company, a Nevada corporation and Seedtown Products, Inc., a Delaware corporation. The Circuit court sustained the motion of defendants, Kellogg Company and W. K. Kellogg, to dismiss on the ground (1) of want of jurisdiction, (2) laches and (3) multifariousness. In that case the court found that the suit, having been brought on behalf of the stockholders of Warren-Teed and Seedtown Products Corporations, the corporations were necessary and indispensable parties and that the burden was upon plaintiffs to bring them before the court and that they had not been brought before the court in that case because one was a Nevada and the other a Delaware corporation and were not “domesticated in Michigan,” etc. The court said: “and it further appearing that they cannot be brought in, that the Court is without jurisdiction to pass upon the matters sought to be litigated.” That the frauds charged in the bill are alleged acts of the defendant, John L. Kellogg alone; that he was a' resident in Chicago, Illinois, and was not before the court. The Supreme court of Michigan in passing on the case said.": “Only W. K. Kellogg and Kellogg Company were personally served with process in the State of Michigan; an order of publication was made as to defendants John L. Kellogg, Warren-Teed Seed Company and Seedtown Products, Inc. They have not appeared.

“The question of jurisdiction over necessary parties to the suit or of the subject of action is controlling. Defendant John L. Kellogg, a resident of Illinois, is asked to account for alleged wrongs to Warren-Teed and Seedtown; he has not been personally served within the State, nor has he submitted to the jurisdiction of this court. We are powerless to render any personal decree against him; our process, personal or constructive, is confined to the limits of this State so far as acquiring personal jurisdiction over nonresidents. . . . The dismissal of the bill was correct as to him.” And continuing the court said: “A more difficult problem is presented as to our jurisdiction to adjudicate rights belonging to Warren-Teed and Seed-town.” That the two corporations were necessary parties and since they were not before the court, it was without jurisdiction and the dismissal of the cause was therefore proper. And after further discussion the court continuing said:

“In view of our holding on the jurisdictional question, we need not discuss the other questions raised in regard to the right of the court to interfere with the internal conduct of the affairs of a foreign corporation, the attack on the Illinois judgment for fraud in its procurement, the inquiry into the validity of the dissolution of the Delaware corporation, plaintiffs’ laches, and the issue of multifariousness.” And the decree of dismissal was affirmed. We hold that the decision of the Supreme court, in affirming the decree of dismissal entered by the Circuit court of Calhoun county, was not res judicata of the matters involved in that case, for the reason that the decision was expressly placed on the ground that the court was without jurisdiction for want of necessary parties.

Holding as we do, that under the law announced in the Becker case, 304 Ill. 190, the suit is harred by the Statute of Limitations, the decree of the Superior court of Cook county is affirmed.

Decree affirmed.

Hatchett, P. J., and Niemeyer, J., concur.


text:
    Guy Read, Appellee, v. Thomas J. Friel and Charles C. Renshaw, Trustees et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 43,506.

      Heard in the first division of this court for the first district at the October term, 1945.
    Opinion filed January 7, 1946.
    Beleased for publication January 21, 1946.
    Frank L. Kriete, W. F. McLaughlin and Arthub J. Donovan, all of Chicago, for appellants; William J. Flaherty and James C. Dwight, both of Chicago, of counsel.
    Edward L. Richter and Clarence M. Dunagan, both of Chicago, for appellee; John B. King, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendants to recover damages for personal injuries claimed to have been sustained by him as a result of the negligence of defendants in starting a street car as he was in the act of boarding it. There was a verdict and judgment in plaintiff’s favor for $1250. On appeal to this court the judgment was reversed and the cause remanded for the reason that the trial judge refused to consider the weight of the evidence in passing on defendants’ motion for a new trial, and the cause was remanded with specific directions to the trial court to consider the weight of the evidence in passing on defendants’ motion for a new trial. Read v. Cummings, 324 Ill. App. 607. Upon the remandment of the cause, defendants’ motion for a new trial was again presented to the trial judge who, when considering our opinion seemed to confuse the duty of the trial judge to direct a verdict, with his duty when the verdict is returned in passing on the motion for a new trial. Our opinion is clear and explicit and the law as there announced is in accordance with all the decisions of our Supreme and Appellate courts, there is none to the contrary. We there cited the case of Libby, McNeill & Libby v. Cook, 222 Ill. 206, where the court considered the authorities on this question and said (pp. 212-213): “In passing upon a motion for a peremptory instruction the question of the preponderance of the evidence does riot arise at all. . Evidence fairly tending to prove the cause of action set out in the declaration may be the testimony of one witness only, and he may be directly contradicted by twenty witnesses of equal or greater credibility; still the motion must be-denied, and if a verdict for the plaintiff follows, the question whether it is manifestly against the weight of the evidence is for the trial court upon motion for a new trial, and, in the event of that motion being overruled and a judgment entered, for the Appellate court upon error properly assigned.”

So far as we are advised, the right and the duty of a trial judge to consider the weight of the evidence on a motion for a new trial has never been questioned in any case except the one before us. The law as stated in our former opinion in this case has been announced in many cases, a few of which, in addition to the Libby case above mentioned, are Belden v. Innis, 84 Ill. 78; Westville Coal Co. v. Schwartz, 177 Ill. 272-277; Donelson v. East St. Louis Ry. Co, 235 Ill. 625-628; Liska v. Chicago Rys. Co., 318 Ill. 570-583; White v. City of Bellville, 364 Ill. 577-580; Hunt v. Vermilion Co. Child Home, 381 Ill. 29-34; Millikin Nat. Bank v. Grain Co., 389 Ill. 196-200.

In the Belden case [84 Ill. 78] the court said (p. 78): “It is the duty of every judge of the circuit court to give careful attention to every part of the testimony in each case, and to consider it with as much care as if the case were tried by the court without a jury. And in all cases where the verdict is manifestly and palpably against the weight of the evidence, the judge of the circuit- court should promptly take the responsibility of setting aside the verdict, without subjecting the parties to the delay and expense-of an unnecessary hearing of such questions in this court.”

In the Westville Coal case, [177 Ill. 272] the court said (p. 277): “The argument that the jury were not justified in crediting his statement because he was not corroborated but was contradicted by three witnesses, two of whom were examined on the subject in his own behalf, does not present the question of a want of evidence on the part of plaintiff, but rather that there was a clear preponderance on the other side. That question does not arise upon a. motion for a peremptory instruction, but is a question submitted to the court upon the motion for a new trial, and to the Appellate Court.”

In the Donelson case [235 Ill. 625] the court said (p. 628): “The constitution, which provides that the right of trial by jury as previously enjoyed shall remain inviolate, does not make the jury the final judges of the weight of the evidence, and if a verdict is manifestly against the weight of the evidence it is the duty of the trial judge to set it aside and grant a new trial, and a failure to do so is error, for which a judgment must be reversed, ’ ’ citing a number of early Supreme court cases.

In the Liska case [318 Ill. 570] the court said (p. 583): “The right of trial by jury constitutionally guaranteed is the right as it existed at common law and as it was enjoyed at the time of the adoption of. the present constitution. It is the right to have the facts in controversy determined, under the direction and superintendence of a judge, by twelve impartial jurors who possess the qualifications and are selected in the manner prescribed by law. The jury’s verdict must be unanimous, and it is conclusive, subject to the right of the judge to set it aside if in his opinion it is against the law or the evidence, and for that reason to grant a new trial. ’ ’

In the White case [364 Ill. 577] it was said (p. 580): “When all the necessary elements of a cause of action are charged in a declaration or complaint and there is evidence in support of the plaintiff’s case which, if .taken as true, with all reasonable intendments therefrom most favorable to the plaintiff, tends to establish the negligence charged, the case shóuld be submitted to a jury for its consideration. On the coming in of a verdict in such case in favor of the plaintiff the question as to the wuight of the evidence is for the trial court upon a motion for a new trial (Libby, McNeill & Libby v. Cook, 222 Ill. 206; Pollard v. Broadway Central Hotel Corp., 353 id. 312.) ”

In the Hunt case [381 Ill. 29] which was a direct appeal from the Circuit court of Vermilion county, the court said (p. 34): “On a motion for a new trial the court may weigh the evidence for the purpose of determining whether the verdict is contrary to the weight of the evidence, and, if the court so finds, a new trial should be granted. [Citing cases.] The court cannot properly consider the weight of the evidence on a motion for judgment notwithstanding the verdict.”

And in the Millikin case [389 Ill. 196] it is said: “A motion for a new trial, however, raises other questions than those which can be determined upon a motion for judgment notwithstanding the verdict. The action of the court in giving or refusing instructions, in the admission or rejection of evidence, or other matters involving the conduct of the trial can be considered on this motion, and not on a motion for a judgment notwithstanding the verdict. And, in addition, and perhaps the most important of all, the court has a right to determine whether the evidence is sufficient to justify the verdict.”

We refer to these eases not because they were necessary to a decision of the matter before us, because the question involved was decided by us on a former appeal where we announced the law in this case to be followed by the trial court, but we mention them here only to emphasize that the law in this state has always required the trial judge to consider the weight of the evidence when that point is made in passing on a motion for a new trial. In fact in the briefs filed in the two appeals from the judgment in this case, not a word has been said by counsel to sustain the statement of the trial judge that he had no power to weigh the evidence in passing on a motion for a new trial and of course no authority was cited because none could be found.

Counsel for defendants say that the court did not pass on the weight of the evidence in overruling its motion for a new trial and there is much to be said in favor of this argument. The court said: “I am just not the judge of the weight. That is what the Supreme Court said over and over again. . . . The Supreme Court, over and over, have said the judge is not the judge of the weight. ... I don’t believe I am the judge of the weight;” and in referring to the opinion of this court continuing said: “I don’t believe that is the law as laid down by the Supreme Court decisions and by fundamental jury thought in text books or anything regarding a jury’s right.” The court referred to no case of the Supreme court or any other court or any authority, but of course there was none. Moreover we had settled the law applicable to this case on the former appeal. But further on, after considerable argument and statements by court and counsel, the court finally said: “I can’t see that it is the right thing to have a new trial here at all.. I don’t think that is good law. But I am following the opinion now, finally, and saying — I think they will be satisfied —that I have carefully considered the weight of the evidence, the credibility of the witnesses, and I still refuse to grant a new trial.” We think this indicates that the trial judge followed the opinion of this court and therefore the case is properly before us, although the court repeatedly said that he thought the preponderance of the evidence was in defendants ’ favor. Obviously the trial judge, under the law, is not warranted in granting a new trial merely because he thinks the verdict should have been for the other party. He must also take into consideration the fact that the jury saw and heard the witnesses, and found contrary to his impression, but it is his duty, as we pointed out in the former opinion, to consider the verdict of the jury in passing on the motion for a new trial.

Defendants contend that the verdict is against the manifest weight of the evidence. They say that the testimony of plaintiff, who was his only witness, was given in “a wavering, hesitating and doubtful manner and without support of facts or circumstances.” And that he was contradicted by three witnesses, two disinterested, and the street car conductor.

Plaintiff testified that he lived at 7604 Yates avenue, which is on the south side of Chicago; that he came down town on May 21,1941,' to attend to some business and that about 10:30 or 11 o’clock in the morning, he was in the act of boarding a southbound street car in Clark street, just north of Adams street, an east and west street; that he was out in the safety zone, the. proper place in the roadway of Clark street, waiting for a southbound Clark street car which was within the block; that there was another southbound car in Clark street standing at the north crosswalk of Adams street. This car was not routed where he wanted to go; that about a car’s length back of it the car which he wanted to board stopped. That this was too far north for him to board it; that the car started up and stopped for a second or two, or virtually stopped, and that as he took hold of the bar, it speeded up and crossed Adams street; that he was thrown to the pavement and injured. While he testified somewhat hesitatingly, we think this is a fair statement of the evidence and the jury was in a position to observe his -demeanor and to value his testimony.

Nick Manos, called by defendants, testified that he was a worker .in a defense plant; that he was on the rear platform of the street car in question when it came south in Clark street north of Adams; that after the car stopped and started up, plaintiff “made a run for the car and flipped the car and fell and the conductor gave the bell and the car stopped” in about six feet; that plaintiff tried to get on the back end of the street car but missed the last bar on the rear of the street car because it started up; that about four people got on the car at that place; that ‘ This man who fell was not there at the time the car was standing still at any time. [That the light changed and the car started]. I first saw him I would say 2 seconds after the car started to gothat after the car again stopped in Adams street, plaintiff boarded it and started arguing with the conductor and that he wanted the conductor’s and motorman’s number. On cross-examination he testified: “The man made a run for the car and missed it. He started to run from the west curb of Clark Street,” 10 or 12 feet from the street car track. “The man came from the sidewalk. He started to run from the sidewalk.” .

Robert Youngren, called by defendants, testified that he was a machine salesman; that he boarded the southbound Clark street car in question on Clark street just north of Adams; that his office was located in the building at the southwest corner of those streets. That there was a loading zone marked off by a white mark in Clark street where people boarded the street car; that when he got on the car it came to a dead stop; that he boarded the car from the rear platform and paid his fare; that the car started going south and that the plaintiff came and tried to board the car. That “he tried to catch that middle bar of the rear platform, and he missed that and he was bumped with the rear handle on the rear of the platform” and thrown to the pavement. That the conductor signalled and the car was stopped; that when he was standing in the loading zone before boarding the car, plaintiff was not standing in the loading zone; that he did not know where he came from. “As I was facing the conductor., just about ready to step back and this man attempted to grab the center bar of the rear platform and he missed catching it, and he was hit with the rear handle, and he was thrown to the pavement — . ... I did not see him just before he attempted to grab the middle bar there. I was facing the conductor, so I didn’t see him. At the time I saw this man attempt to board the street car, the rear platform, was about parallel with the walk that goes from the west side of the street to the east side ... on the north side of Adams Street.” That after the accident the car came to a stop with its rear platform about on the westbound street car track in Adams street; that plaintiff picked himself up, boarded the street car and when he got on he “cussed the conductor” and told him that he should have stopped the car and he didn’t, and the conductor said he didn’t see him. On cross-examination he testified that he did not notice anybody boarding the car at the time and place he did. That after he boarded the car he was facing south and paid his fare when the car started up. That all the time he was pay<ing he was facing south; that he saw plaintiff attempt to grab the bar but did not see him when he left the west curb of Clark street; that when plaintiff got on the car he did not “cuss” the conductor but yelled loud at him and spoke in an excited voice.

Kieran Fogarty, conductor of the street car, called by defendants, testified that he had been a conductor for more than 14 years; that his car stopped on the north side of Adams street at the safety island and that 2 or 3 passengers got off, “Then I looked out and the green light was with us. I gave the hell,” and just as the rear end of the car was crossing the north crosswalk of Adams street he saw plaintiff grab the rear grab handle. The car stopped in Adams street and then moved ahead so as not to block the traffic and stopped at the south side of that street.

We think we would not be warranted in saying that the verdict is against the manifest weight of the evidence. The jurors saw and heard the witnesses testify. They undoubtedly were familiar with the way street cars are operated, sometimes slowing up at the proper stopping place where persons are waiting to hoard the car and often starting ahead when they get the green light without waiting for the persons to board the car. The testimony of the witness, Manos, was much more favorable to defendants on cross-examination than in his direct examination. On cross-examination he said he saw plaintiff start to'run from the west curb on Clark street, etc. The jury probably did not give much credence to what he said. At any rate the question was for the jury, and the judge sustained the verdict saying (as above referred to): “I have carefully considered the weight of the evidence, the credibility of the witnesses and I still refuse to grant a new trial.” In these circumstances we are not warranted in disturbing the verdict unless we are of opinion that it is against the manifest weight of the evidence. In our former opinion, after stating the law on the question of directing a verdict, we said: “But after the verdict is returned a different question arises. It is then the duty of the trial judge to consider the weight of the evidence and if he is of opinion that plaintiff has not proven his case by a preponderance of the evidence, taking into consideration the fact that the jury has found otherwise, it is his duty to set aside the verdict and grant a new trial. And if the court does not do so but overrules the motion and enters judgment and the case is then brought to this court, we are not authorized to disturb the verdict on this ground unless the verdict and judgment are against the manifest weight of the evidence. This court in passing on the question must take into consideration not only the verdict of the jury but the fact that the trial judge saw and heard the witnesses, overruled the motion for a new trial and entered judgment. It requires much more for this court to set aside a verdict and judgment than is required of the trial judge.”

Defendants further contend that the court erred in giving instruction 7 at plaintiff’s request which was a stock instruction which told the jury what they should consider in case they found for plaintiff. The objection is that it told the jury among other things, they might take into consideration plaintiff’s suffering from such physical injuries if any “and such future suffering and loss of health and disability, if any, as you may believe from the evidence before you in this case he has sustained or will sustain by reason of such injuries.” And the argument is that there was no medical testimony introduced to sustain this or any other element of damages; that plaintiff had not seen a doctor about his foot which was injured, for about two years, and that the stinging pain that plaintiff testified he sometimes suffered in his foot was due to the injury or to neuritis or arthritis which the evidence showed plaintiff had prior to the accident.

Plaintiff testified that when he boarded the street car after the accident he had to take off his shoe and kept rubbing his foot which began to swell; that when the car arrived at 75th street-where he changed cars to get to his home, he had difficulty getting his shoe back on his foot; that he could hardly walk across the street; that he went home and called Dr. Salmon and shortly thereafter his daughter took him to see the doctor who advised him to go to the hospital and get an X-ray which was done at the Englewood Hospital. That a plaster cast was there put on'his foot. It went from just below the knee to near the instep; that he was hurt in the instep on his right foot and that it still hurt at the time of the trial, which was more than 2 years and 9 months after the accident. That he remained at the hospital just one day until the cast was placed on his leg; he then went home and had a pair of crutches which he used 2 or 3 weeks, then the doctor took the cast off, after which "he got about on crutches which he used for a week or so; that the injury ached a little in his instep where he got the bruise; that it was “still swollen and hurts me.” That the pain was not constant “unless I step on the ball of my foot it hurts me. If I walk any way fast it stings me. Weather changes do not affect me much. . . . My foot is still swollen but it is a hard swelling. ’ ’ That he hadn’t put anything on his foot for about 2 years when he last saw Dr. Salmon; that he called on that doctor 2 or 3 times until the cast was removed.

When plaintiff had finished his testimony his counsel stated to the court that he had requested Dr. Salmon to come to court, which he agreed to do as soon as he finished an operation, but after waiting awhile he did not appear and plaintiff closed his case.

Upon a careful consideration of the evidence we are unable to say. that the amount of the damages was so. excessive as to warrant interference on our part. The judgment of the Superior court of Cook county is affirmed.

Judgment affirmed.

Hatchett, P. J., and Niemeyer, J., concur.