author: Mr. Justice Sullivan

text:
    South Parkway Building Corporation, Appellant, v. Theatre Amusement Company and Balaban and Katz Corporation, Appellees.
    Gen. No. 43,217.
    Opinion filed April 11, 1946.
    Rehearing denied May 15, 1946.
    Released for publication May 16, 1946.
    Rosenthal, Eldridge, King & Robin, of Chicago, for appellant; Willard L. King, Sidney L. Robin and Douglass Pillinger, all of Chicago, of counsel.
    Sonnenschein, Berkson, Lautmann, Levinson & Morse, of Chicago, for appellees; Issaac E. Ferguson and Morton Lane, both of Chicago, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

This action was brought by plaintiff, South Parkway Building Corporation as lessor, to recover from the defendant, Theatre Amusement Company as lessee, an alleged balance of rent amounting to $19,097.29 claimed to be due under a written lease. The defendant, Balaban & Katz Corporation, was sued as the guarantor of the payment of said rent to the extent .of $10,000. The case was tried without a jury. The trial court found the issues against plaintiff and entered judgment in favor of defendants. Plaintiff appeals. The principal defendant, Theatre Amusement Company, will sometimes hereinafter for convenience be referred to as the defendant.

The lease in question was made on March 1, 1933. It covered a motion picture and vaudeville theatre at 4719 South Parkway, Chicago, Illinois. The lease was for a five year term, from March 1, 1933 to and including February 28, 1938, with the right in the lessee on notice (which was later given) to extend the term for an additional five years or to February 28, 1943. The lease provided that the minimum rental for the original term was $20,000 a year and for the extended term $22,500 a year and in addition the lessee agreed to pay during the original and extended term a percentage rental of 20 per cent of the box office receipts in excess of $3,000 per week and 25 per cent of the box office receipts in excess of $4,000 per week.

For reasons which were deemed mutually advantageous at the time to the lessor and the lessee they modified the lease on September 1, 1934 by a supplemental indenture, which by its terms became section 6 of article II of said lease. This indenture provided inter alia that in computing the percentage or extra rental at the end of each lease year the lessee would be entitled to deduct “for the period from March 1, 1934 to and including February 28, 1938” one half of its “cost of talent” for stage productions from the amount of its gross box office receipts; that the lessee would not be entitled to this deduction for the lease year from March 1, 1934 to February 28, 1935 unless the cost of talent exceeded $15,000 for the period from September 1, 1934 to February 28, 1935; that “such deduction shall not be made from gross box office receipts for any lease year during the period from March 1, 1935, to and including February 28, 1938, unless during such lease year the lessee shall expend for such cost of talent an aggregate amount in excess of Thirty thousand dollars”; that “either of the parties hereto may at any time after June 1, 1935, upon giving the other party ninety (90) days notice of his or its (as the case may be) intention so to do, terminate the period within which the provisions of said section 6 of article II shall be in force and effect, and thereafter the lease and all of the terms, conditions, provisions, stipulations, agreements, requirements, covenants and obligations thereof shall continue in full force and effect as though the lease had not by this supplemental indenture been amended and modified and as though said section 6 of article II had never been added to and incorporated in said lease”; and that “this supplemental indenture shall in all respects be treated as part of the said lease as though the provisions hereof were fully incorporated therein and, excepting only as hereby, and to the extent only hereby, expressly modified, all the terms, conditions, provisions, stipulations, agreements, requirements, covenants and obligations of the said lease shall continue in full force and effect.”

As already stated, the lease gave the lessee the option of extending the term thereof and by notice in writing, dated July 29, 1937, said lessee elected to exercise its option to extend the lease for an additional five years. The extension notice is a lengthy document but the portions thereof pertinent to this controversy set forth the rental provisions of the lease applicable to the extended term (i.e., minimum annual rental of $22,500, plus 20 per cent of gross box office receipts in excess of $3,000 per week [up to $4,000] and 25 per cent of receipts in excess of $4,000 per week) and stated that “said indenture was amended by supplemental indenture entered into as of the first day of September, 1934, by and between lessor and lessee”; and that “the undersigned [lessee] hereby elects to exercise the said option to extend said lease for the period commencing the first day of March, 1938, at 12:01 A. M., and ending February 28, 1943, at midnight, upon the terms and conditions in said lease and supplemental indenture set forth.” (Italics ours.)

The lessor made no contemporaneous response to the lessee’s notice of extension of the term of the lease. The lessee was permitted to remain in possession from and after March 1, 1938 and continued to pay rent in compliance with the terms of the lease as modified by the supplemental indenture, in accordance with its understanding of such terms.

The following tabulation shows the fixed rent, the gross receipts, the cost of talent and the percentage or extra rent paid by defendant for each year of the original and extended terms of the lease:

“Lease year. Receipts. Cost of Talent. Fixed rent. Extra rent.
3/1/33-2/28/34 $154,082.00 $31,955.00 $20,000.00 None
3/1/34-2/28/35 190,569.50 51,668.02 20,000.00 $ 4,774.04
3/1/35-2/28/36 164,195.20 33,994.34 20,000.00 1,345.40
3/1/36-2/28/37 188,768.80 12,005.60 20,000.00 6,468.03
3/1/37-2/28/38 165,329.22 11,005.12 20,000.00 1,780.14
3/1/38-2/28/39 138,608.10 11,726.70 22,500.00 None
3/1/39-2/28/40 140,986.25 17,761.98 22,500.00 None
3/1/40-2/28/41 156,717.91 29,183.02 22,500.00 57.87
3/1/41-2/28/42 227,228.71 57,803.00 22,500.00 8,371.16
3/1/42-2/28/43 353,747.04 99,073.84 22,500.00 34,338.24“

After September 1, 1934, when the supplemental indenture was executed, and during the' balance of the original term of the lease, the lessee made detailed monthly reports to the lessor as to its stage shows, including the cost thereof. Subsequent to March 1,1938, the first day of the extended term of the lease, the lessee continued to' make similar monthly reports.

In the first three years of the extended term the cost of talent to the lessee was respectively: $11,726.70, $17,761.98 and $29,183.02. Since the cost of talent in each of these years did not exceed $30,000, the lessee would not in any event be entitled, in computing his percentage or extra rent, to deduct any amount for the cost of its stage shows from its gross-receipts from admission fees.

In the fourth year of the extended term, commencing March 1, 1941, there was an increase in the expenditures by the lessee for stage show talent. By October 1, 1941 these expenditures, as reported by the lessee to the lessor, amounted to $24,688.99. If the lessee’s expenditures for talent continued at the same rate for the rest of that lease year, the lessor realized that they would aggregate more than $30,000. In October 1941 the lessor notified the lessee by letter that in the opinion of lessor’s attorney the supplemental indenture had expired by its express terms on February 28, 1938, the last day of the original term of the lease. The lessee disregarded this notice and deducted one half of $57,803, the amount it paid for stage talent during the year in question, from its gross receipts in computing its percentage or extra rental for said year. The lessee’s check for extra rent in the amount as thus computed was returned by the lessor on the ground that the supplemental indenture had expired on February 28, 1938 and that it was not required after said date to share the cost of stage talent.

The lessee expended $99,073.84 for stage talent for the fifth or last year of the extended term of the lease and since this amount exceeded $30,000, the lessee computed its extra rental for that year in the same manner as it did for the previous year. Lessee’s check for extra rent for the year commencing March 1, 1942 was also ‘returned by the lessor. Thereafter under a stipulation both checks so returned by the lessor were later accepted by it without prejudice to the rights of the parties to this litigation.

Plaintiff contends that “the supplemental indenture terminated on February 28, 1938” and that “the supplemental indenture was'not extended.” In other words plaintiff claims that, notwithstanding the fact that defendant’s expenditures for talent for stage shows exceeded $30,000 for each of the last two years of the extended term of the lease, the lessee wrongfully deducted one half of its cost of talent from its gross receipts in computing its percentage or extra rent for said last two years, because the supplemental indenture expired by its express terms on February 28, 1938; and that the defendant is therefore indebted to plaintiff in the additional amount of $19,097.29 as percentage or extra rent for those two years.

Defendant’s answer to plaintiff’s contentions is that the supplemental indenture was intended by the lessor and the lessee to constitute a permanent change in the method of computing the extra rent, subject only to the right given to either party by said supplemental indenture to terminate the new arrangement by 90 days notice. It is conceded that, if the supplemental indenture was carried over into the extended term of the lease by defendant’s notice of extension, the lessee’s computation of extra rent for the two years in question was correct and that it owes nothing to the lessor.

In our opinion plaintiff’s position is. untenable and purely an afterthought. In support of its contention that the supplemental indenture expired by its express terms on February 28, 1938, plaintiff relies solely on the italicized portion of the following provisions of said indenture:

'“In computing the additional rental, for the period from March 1, 1934, to and including Febnoary 28, 1938, to-be paid by the lessee to the lessor . . . there shall be deducted from the amount of gross box office receipts ... an amount equal to one-half of the aggregate sums expended by the Lessee for the cost ... of obtaining the services of stage performers personally employed in stage productions exhibited by the lessee in the leased premises during any lease year, between March 1, 1934 and February 28, 1938 . . . such deduction shall not be made from gross box office receipts for any lease year during the period from March 1, 1935, to and including February 28, 1938, unless during such lease year the lessee shall expend for such cost of talent an aggregate amount in excess of Thirty Thousand Dollars. . . . ” (Italics ours.)

Plaintiff insists that the italicized portion of the foregoing provisions is so clear, explicit and unambiguous that the parties could only have intended that the supplemental indenture would expire on February 28, 1938, even though the lessee exercised its option to extend the term of the lease, of which the supplemental indenture was an integral part. Of course, the dates themselves' are definite but it seems clear that the parties did not intend them to have the significance plaintiff attributes to them. When it is considered that the real purpose of the supplemental indenture Was to afford a new method of computing the extra rent by permitting the lessee to deduct one half of the cost of stage talent, when such cost exceeded $30,000 for any lease year, from its gross box office receipts before calculating the percentage rent specified in the lease, we are convinced that the parties clearly intended to effect a permanent change in such computation, subject only to the termination of the supplemental indenture by either party upon 90 days notice and that the use of the aforementioned dates was merely incidental. While the supplemental indenture was executed September 1, 1934 and plaintiff was not to commence to share the cost of talent until that date, said indenture was made retroactive to March 1, 1934. It does not appear why it was made retroactive but it will be noted that the period from September 1, 1934 to and including February 28, 1938 was coextensive with the then remainder of the original term of the lease and we think that the only purpose of the parties in using said dates was to indicate that fact. It is difficult to perceive how it makes a particle of difference whether the time during which plaintiff was to share the cost of talent was described in the supplemental indenture as the “remainder of the original term of the lease” or the period from September 1, 1934 to and including February 28, 1938. The duration o'f time under either description would have been identical. The supplemental indenture itself provided that it “shall in all respects be treated as part of the said lease as though the provisions hereof were fully incorporated therein.” We think that the requirement in the. supplemental indenture that the lessor share the cost of stage shows in accordance with the provisions thereof is susceptible of no other or different construction than if it had been incorporated as a provision of the original lease when it was executed.

We are impelled to conclude from the terms of the supplemental indenture itself that the parties thereto intended thereby to effect a permanent change in the method of computing the extra rent, subject only to the right of either of them to terminate said indenture upon 90 days notice, which right was not exercised by plaintiff, and that the provision of the supplemental indenture that plaintiff share in the cost of talent for stage shows was carried over into the extended term by defendant’s notice of extension with the same force and effect as were all the other provisions of the lease.

If it be assumed that the provisions of the supplemental indenture are in any wise ambiguous, it is proper to consider the circumstances under which it was executed and it is conceded that if there is any ambiguity in the lease as modified by said supplemental indenture it should be resolved in favor of the tenant.

The theatre in question had a seating capacity of approximately 2900. While it was equipped for the production of stage shows, the lessee was not required either under the lease or the supplemental indenture to present stage shows in addition to moving pictures. As already shown, the original term of the lease commenced March 1, 1933. The defendant spent $29,355 for talent to present stage shows during nine months of 1933, suffering a loss in its operation of the theatre during that period of more than $1,000. For the first six months of 1934 defendant paid $18,553 for stage productions and during that period realized a profit of only $423. According to plaintiff, sometime prior to September 1, 1934 defendant threatened to discontinue the stage shows if the lessor did not agree to share the cost thereof. It should be noted that the purpose of the stage shows was to stimulate attendance and receipts. Higher admission prices were charged when stage shows were presented than when the shows consisted solely of moving pictures. The theatre occupied a portion of a rather extensive building. The building contained a large dance hall, a department store and numerous -stores and offices which were rented for various uses. The lessor unquestionably recognized the value to it of attracting as large an attendance as possible to the theatre because of the favorable effect it would have on the business of the tenants in the building. The lessor also undoubtedly appreciated that a large attendance at the theatre would enhance the rental value of the building.

When the lessor agreed in the supplemental indenture to share the cost of the stage shows to the extent and under the conditions heretofore shown, it certainly was not actuated by any philanthropic motive. It is reasonable to conclude that plaintiff agreed to the terms of the supplemental indenture because it felt that it would be mutually advantageous to the parties to effect the change in the method of computing the extra rent. Exactly the same conditions that prompted the making of the supplemental indenture prevailed when the lessee by timely notice exercised its option to extend the lease for five additional years. In its notice of extension the lessee expressly stated that it was exercising its option “upon the terms and conditions in said lease and supplemental indenture set forth.” Plaintiff did not make the slightest objection to the notice of extension and permitted the defendant to remain in possession as its tenant for the extended term of the lease. All that plaintiff has to say in this connection is that defendant’s notice of extension could not possibly have served to project or carry over into the extended term of the lease the supplemental indenture which had -expired by its expressed terms on February 28, 1938. If plaintiff had taken that position when it received the notice of extension and had objected to said notice on that ground the defendant would have been afforded the opportunity of deciding whether or not it desired to avail itself of its option to extend the lease. Commencing September 1, 1934 defendant was required to and did make detailed monthly reports to plaintiff as to its cost of talent for stage shows. Subsequent to February 28, 1938 and during the entire additional term of the lease, with the exception of the months of March, April and May, 1938, when apparently no stage show talent was employed, defendant continued to make monthly reports of its cost of talent without any suggestion or intimation by plaintiff that such reports were no longer necessary or required.

The supplemental indenture viewed in the light of the foregoing facts and circumstances cannot be reasonably construed otherwise than that the requirement thereof that plaintiff share in the cost of stage show talent to the extent indicated therein was projected and carried over into the extended term of the lease.

Counsel state in plaintiff’s brief that “we have found no- case which is exactly in point on the construction of this lease.” They then go on to state: “We have found a number of cases on the question of whether an option to purchase given a lessee in a lease may be exercised'after the term of the lease has been renewed or extended. These cases turn on a variety of factors, not all of which are present in the case at bar. However, even in such a ease it is clear that if the option of purchase is expressly limited to a specific date, such option is not available to the tenant in the extended period. And this is true even though the specific date to which the option is limited is the last day of the first period of the lease.”

We have carefully examined the cases cited and considered counsel’s discussion concerning same. There is not the slightest analogy between any question determined in those cases and the question of construction presented in the case at bar.

We have considered the other points urged but in the view we take of this case we deem it unnecessary to discuss them.

For the reasons stated herein the judgment of the superior court of Cook county should be and it is affirmed.

Judgment affirmed.

Friend, P. J., and Scanlan, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Lyda O’Shea, Appellee, v. Chicago Motor Coach Company, Appellant.
    Gen. No. 43,226.

      Opinion filed April 11, 1946.
    Released for publication May 16, 1946.
    Barrett, Barrett, Costello & Barrett, of Chicago, for appellant.
    Joseph D. Ryan, Louis G. Davidson and Arthur Ryan, all of Chicago, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.

This action was brought by plaintiff, Lyda O’Shea, against defendant, Chicago Motor Coach Company, to recover damages for personal injuries alleged to have been sustained by her as the result of defendant’s negligence. The jury returned a verdict finding defendant guilty and assessing plaintiff’s damages at $2,500. Judgment was entered on the verdict and defendant appeals.

The substance of plaintiff’s complaint is that defendant did not furnish her, a passenger on one of its buses, a reasonably safe place to alight therefrom.

Defendant offered no, evidence upon the trial of this case. It appears from the evidence introduced in plaintiff’s behalf that she and a friend, Miss Mary R. Fugate, lived in the same apartment at 4735 Drexel boulevard; that they were on their way home as passengers on a northbound Drexel boulevard bus about 9:45 p. m. on July 11, 1941; that when the bus was a short distance north of 49th street they gave the appropriate signal to the driver of their intention of alighting at 48th street; that the usual stopping place for northbound Drexel boulevard buses at 48th street was north of the north crosswalk of said street and near the east curb of Drexel boulevard; that such usual stopping place was well lighted by a street lamp; that after plaintiff and Miss Fugate had signaled the driver of the bus to stop at 48th street they proceeded toward the front of the bus; that the bus went past the usual stopping place and came to a stop with its front end approximately 90 feet north of the north curb line of 48th street and its east side 10 or 15 feet from the east curb of Drexel boulevard; that it was very dark on the east side of the bus where it stopped, since there were no street lights which provided illumination there; and that the interior lights were on in the bus hut they did not reflect onto the street.

It also appeared that after the driver stopped the bus he opened the front door thereof and Miss Fugate alighted first; that plaintiff then stepped down and, as she did, her right foot went into a crevice in the street and she was immediately thrown; that she was wearing a nurse’s oxford with a two inch heel which was about an inch and a half wide, with rubber on it; that she did not know that there was a crevice in the street before she stepped into it; that she had no knowledge of the condition of the street where she alighted from the bus, as she had no occasion to walk over that part of it before the accident; that the driver said nothing to plaintiff about the condition of the street before she stepped down from the bus; that plaintiff sustained a complete fracture of the right femur just above the knee; that after she was injured plaintiff was carried to the step of the bus where she sat for 45 minutes until she was taken to the hospital in an ambulance; that during that period she did not look around to see just what caused her to fall; that none of plaintiff’s witnesses made an inspection of the street on the night she was injured but Miss Fugate went back to the scene of the accident the next afternoon and observed that there were many cracks in the street where plaintiff fell, varying in length, width and depth; and that the cracks where plaintiff lay after she fell were one and a half or possibly two inches wide and at least an inch deep.

Defendant’s theory as stated in it's brief is that “at the time of the occurrence complained of, it was not negligent in any respect and that it has no control over the streets or boulevards of the Chicago Park District, a Municipal Corporation, and that it is not within its power to maintain or construct said streets or boulevards. It is further the theory of the defendant that it is not liable for ordinary defects or unevenness of the surface of the streets at the place where its buses do stop, and that a passenger who in alighting from a motor bus has as good an opportunity as the defendant or its servants to observe the conditions of a street and to know that such condition will, in case she alights, be dangerous, she is guilty of contributory negligence.”

Plaintiff’s theory is that “the defendant negligently ran its bus beyond the regular stopping place where the illumination was very bright, and discharged the plaintiff, a woman 67 years old, at a very dark place where there were many wide cracks in the street which she could not see on account of the darkness, and in consequence her heel caught in one of these cracks as she was stepping down from the bus and she fell and sustained a complete fracture of the right femur just above the knee with displacement and overriding of the ends of the bone.”

It is first contended that “the court erred in denying the defendant’s motion and in refusing the defendant’s instructions at the close of the plaintiff’s case.” In other words the. defendant asserts that plaintiff failed to make out a prima facie case as to her freedom from contributory negligence and as to defendant’s negligent failure to furnish her a reasonably safe place at which to alight from its bus. In determining the questions of law presented by this contention the evidence must be considered in its aspect most favorable to plaintiff and all reasonable inferences arising therefrom must likewise be considered most strongly in her favor.

Was plaintiff guilty of contributory negligence as a matter of law, as defendant contends? Whether plaintiff was in the exercise of ordinary care for her own safety at and immediately prior to the time she was injured could only become a question of law if it could be said that no rational person would have acted as she did. When the bus stopped the driver opened the front door and thereby invited her to alight. Before she stepped down from the platform she noticed that the street immediately to the east of the bus was “quite dark . . . very dark.” She placed her left hand on the handhold and when she stepped off the bus her foot went into a crevice in the street and she was thrown to the ground. She was given no warning by the driver as to the condition of the street. She was unaware of the presence of the cracks or of the condition of the street at that particular place, since she had no occasion previously to walk over that part thereof. She had a right to assume that the driver stopped the bus at a place where it was reasonably safe for her to alight, unless such place was obviously dangerous. While plaintiff was required to exercise ordinary care for her own safety as she was getting off the bus, it certainly was not her duty to scrutinize searchingly the ground on which she was about to step in alighting. As already stated, she had the right to assume that the driver of the bus was discharging her at a reasonably safe place and it was not negligence on her part to act upon that assumption unless the danger was so open and obvious as to challenge the attention of a reasonably prudent person similarly situated. (Jackson v. Seattle, 15 Wash. (2d) 505, 131 P. (2d) 172.) There can be no question but that the evidence showed that plaintiff made out a prima facie case that she was not guilty of contributory negligence.

We will now consider defendant’s contention that no evidence was adduced by plaintiff that proved or tended to prove that it was guilty of negligence as charged in the complaint.

Since it is often not only impracticable but impossible because of traffic conditions for a bus to stop at its usual stopping place to permit passengers to alight, ordinarily the mere failure of the bus to stop at its customary stopping place does not in itself constitute negligence. However, if for any reason a bus does not stop at its usual stopping place, it must stop at a place that is reasonably safe for the purpose of alighting.

No Illinois case has been cited and we have been unable to find one which considered the duty of a street car company or a bus company toward an alighting passenger who was injured by reason of a defective condition in the surface of a public street, such as was present here, at the point where the vehicle of the carrier stopped to permit such passenger to alight.

It is said by some authorities that inasmuch as street car companies and bus companies operate on the surface of public streets, which they do not control and which they are not obligated to maintain and keep in repair, the general rule that it is the duty of common carriers of passengers to provide a reasonably safe place for discharging their passengers has only a qualified application to such companies. (Thompson on Negligence, sec. 2712; Booth on Street Railways, 2nd ed., sec. 326.) The only possible qualification to the aforesaid general rule pertinent to the factual situation presented here is that found in 1 Nellis on Street Railways, 2d ed., sec. 308, where the author said: “In case of a passenger injured in alighting from a street car owing to the condition of the street, it is said that liability exists when the dangerous condition of the street is known, or could have been known to the street railway company, but is unknown to the alighting passenger, unless be is warned or assisted to a safe place.” The foregoing rule stated by Nellis is really neither an exception to nor a qualification of the general rule that street car companies and bus companies must furnish their passengers with a reasonably safe place to alight, since, as will be hereinafter shown, such companies are chargeable with knowledge of the condition of the streets over which their vehicles have been operated for any considerable length of time and since no liability would attach in any event for an injury to a passenger who alighted at a place which was obviously dangerous, even though a bus did stop there.

There was positive evidence that there was a dangerous condition in the street where the bus stopped and plaintiff was invited to alight; that plaintiff did not know of such condition and could not see it because of the darkness; and that she first became aware of it when her foot went into the crevice. While there was no positive evidence that the defendant knew of the existence of the dangerous condition of the street where its Bus stopped, in our opinion there is evidence in the record from which it could be reasonably inferred by the jury that by the exercise of a proper degree of care the defendant could have known of such condition.

Defendant asserts in its brief that “the plaintiff did not offer any evidence in an effort to prove that the alleged cracks existed prior to the occurrence or that they existed for a period of time sufficiently long for the driver of the bus to have known of the existence of the same” and that “the record is completely absent of any evidence tending to show that the condition of the street as observed by Miss Fugate on the day following the occurrence existed on the night of the event. It cannot be presumed that these alleged cracks existed on the night of the occurrence.”

It is a matter of common knowledge that cracks in the pavement of the nature described by plaintiff’s witness, Miss Fugate, do not appear over night in the middle of July in this part of the country. The accident happened about 9:45 p. m. and the following afternoon the cracks were in the street at the point where plaintiff alighted from the bus. It is idle to urge that the condition of the street was not the same the night before or that it had not been the same for a considerable period of time. Such a condition is one of gradual deterioration and could only have developed over a long period of time. We think that defendant’s suggestion that it had neither actual nor constructive knowledge of this condition is without force. It operated its buses up and down Drexel boulevard many times daily, during daylight hours, for months or years prior to this accident, and it is a reasonable inference that it knew or should have known of this condition. It was not necessary that the particular driver, who operated the bus in question, must have had knowledge of the dangerous condition of the street. It was sufficient to charge the defendant with knowledge, if said condition was of such a character and existed for such a length of time that any one of its drivers who travelled the route in question several times every day, could have known of it by the exercise of ordinary care. (Cincinnati St. Ry. Co. v. Mueller, 51 Ohio App. 314, 200 N. E. 770.)

Defendant also contends that “a carrier of passengers is not in law required to protect such passengers in alighting from the ordinary unevenness of the surface of the streets at the place where the bus is stopped. ’ ’

It is sufficient answer to this contention to state that the evidence showed not mere or ordinary surface unevenness of the street where the bus shopped but many cracks in the street of sufficient width and depth as to constitute a dangerous condition.

Defendant finally contends that, if a passenger in alighting has as good an opportunity to see and observe the condition of the street as the carrier’s servants and knows that it would be dangerous for him to attempt to alight under such conditions, then he must be held to be guilty of contributory negligence if injured.

This is a correct statement of law (Thomason v. Chicago Motor Coach Co., 298 Ill. App. 626) but it has no application here. As has already been shown, this accident occurred at night and the bus was stopped for plaintiff to alight at a place that was so dark that she could not see the defective condition-of the street. This condition was not obviously dangerous and plaintiff had no knowledge of it.

In support of its several contentions defendant cites Feeney v. Chicago City R. Co., 220 Ill. App. 400, Thomason v. Chicago Motor Coach Co., 298 Ill. App. 626; and Winters v. Aurora, E. & C. R. Co., 198 Ill. App. 52. Since the facts in those cases are so essentially different from the facts here' it would serve no useful purpose to discuss them.

We are impelled to hold that the questions as to whether or not plaintiff was guilty of contributory negligence and as to whether or not defendant was guilty of negligence were properly submitted to the jury and that the jury’s verdict was amply justified by proven facts and reasonable and permissible inferences.

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

Judgment affirmed.

Friend, P. J., and Scanlan, J., concur.


text:
    Welsbach Traffic Signal Company, Appellant, v. City of Chicago, Appellee.
    Gen. No. 43,300.
    Opinion filed April 11, 1946.
    Rehearing denied May 15, 1946.
    Released for publication May 16, 1946.
    David Jetzinger, of Chicago, for appellant.

      Barnet Hodes, Corporation Counsel, for appellee; J. Herzl Segal and Sydney R. Drebin, Assistant Corporation Counsel, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

This action was brought by Welsbach Traffic Signal Company against the City of Chicago to recover $19,965.07, the alleged cost of material and labor furnished by plaintiff to defendant. The case was tried without a jury and at the conclusion of plaintiff’s evidence the court on defendant’s motion found the issues against plaintiff and entered judgment in favor of defendant for costs. Plaintiff appeals.

From 1928 to and including 1940 plaintiff had maintained and serviced curb flashing and loading zone signal lights for the city under written contracts executed each year. On many occasions during said period the yearly contract was extended into the succeeding year by authority of the city council of the city of Chicago.

On May 16, 1940 the plaintiff entered into such a contract with the defendant through its commissioner of public works for the period commencing on said date and ending December 31, 1940. This contract provided that the commissioner of public works reserved the right to extend the term of the contract beyond December 31, 1940 by authority of the city council of the city of Chicago for a total period of not to exceed six months. Pursuant to council order the contract was extended to April 30, 1941. Sometime prior to April 30, 1941 the city council directed that beginning May 1, 1941 the servicing, maintaining and repairing of street traffic signals and loading zone signals be performed by the city of Chicago.

The following letter was received by plaintiff on May 2, 1941:

“April 30, 1941
"Gentlemen:
“This is to notify you that Contract No. 12595 between the City of Chicago and the Welsbach Traffic Signal Company for installing, servicing, maintaining and relocating curb flashing signals and loading zone signals which has been extended by action of the City Council to April 30, 1941, has expired.
“All work in connection with the contract will be fulfilled by the City from the expiration date of the contract.
Very truly yours,
O. E. Hewitt,
Acting Commissioner of Streets & Electricity.
Joseph J. Butler, Superintendent of Streets.
P. J. Donovan,
Deputy Superintendent of Streets.
Leslie J. Sorenson,
City Traffic Engineer.”

On May 2, 1941 plaintiff wrote a letter to Oscar E. Hewitt, Acting Commissioner of Streets and Electricity of the city of Chicago, which, after quoting the foregoing letter, stated in part:

“In connection with the above quoted letter, we call your attention to several things, namely:
“In the matter of the performance of the work contemplated by the contract mentioned in the letter, the Department of Streets and Electricity, Bureau of Streets, has heretofore in 1941 called for bids for the performance for the current year 1941 of the work covered by said contract. Pursuant to such calling for bids, Welsbach Traffic Signal Company submitted to you a bid covering such work for the current year 1941; said bid was accompanied by certified check in accordance with the procedure prescribed by your Department. That bid has never been accepted or rejected, and our proposal and the check are still in your hands.
“Further, as above stated, the letter quoted was not received until 8: 50 this morning, May 2nd, and at the time of its receipt the maintenance crews of the Welsbach Traffic Signal Company involved in this work were necessarily on the street in the performance of their duties, and at this time these crews are so engaged and the members thereof are, of course, employees of our Company.
“From a practical standpoint it is obvious that Welsbach Traffic Signal Company cannot call in its crews and discontinue its maintenance work without seriously affecting the operation of the safety, service involved. If the City of Chicago, through your Department, still has under consideration the said bid of our Company for maintenance during the current year, it is again obvious that our Company must maintain its organization and be ready to perform if the said bid is accepted by the City of Chicago.
“Welsbach Traffic Signal Company asks immediate written instructions from your Department as to whether or not your Department orders it this day to discontinue all work and service in the matter of the maintenance involved in its work covered by the contract mentioned in your letter above quoted and to no longer hold itself in readiness, notwithstanding that no action has been taken on the pending bid of the Company for 1941.
“Further in this connection, we note that only this day is the City opening bids covering the furnishing of materials and supplies essential to the performance of the service heretofore and now being performed by our Company.
“In light of the nature of the service involved in its relation to public safety, our Company, regardless of its own interests and rights in the premises, is reluctant to abruptly discontinue its service when by so doing public safety may be jeopardized. Having these things in mind, our Company feels that its above request is not only justified, but demanded.
“Awaiting your reply,
Very truly yours,
Welsbach Traffic Signal Company,
By Morse Dell Plain,
President.”

The city did not reply to plaintiff’s letter and the latter'continued to service-defendant’s safety signal lights until June 10, 1941.

When the city council directed that the city itself service, maintain and repair its safety signal lights commencing on May 1, 1941, it made an appropriation to cover the cost of this work by the city but during the period from May 1,1941 to and including June 10, 1941 the commissioner of streets and electricity did not possess the materials and equipment necessary for the performance of such work.

Leslie J. Sorenson was the city traffic engineer and his office had supervision of the work performed by plaintiff and the approval of bills rendered by it for its services during the years it did this work under written contracts authorized by the city council. Mr. Shobe was an assistant traffic engineer employed under Sorenson and he was in immediate charge of plaintiff’s dealings with the city under its contract for 1940 as extended to 'April 30, 1941. During the period from May 1, 1941 until June 10, 1941 plaintiff continued to mail or deliver statements to Shobe showing the labor and materials furnished in servicing and maintaining the city’s safety signal lights and made daily reports to him of repairs- to signal lights which had been damaged by automobiles. Other employees in the office of the traffic engineer secured information from plaintiff as to the cost of said repairs and the city, whenever possible, collected same from the owners of the automobiles who had caused such damage and appropriated the money thereby collected to its own use.

Otis L. West, plaintiff’s assistant secretary and office manager, testified that sometime between June 20 and June 25, 1941 he asked Shobe if he had the bills rendered to the city for the services involved herein and that Shobe said that he had but that “He had no account to charge them to.' He asked me if I would take them back, they were in his way. So I did take them back to the office.”

Plaintiff spent $19,965.07 from May 1 to June 10, 1941 for labor and materials in servicing the city’s safety light signals, in repairing damaged signals and in relocating signals where street widenings had been completed. All of this work was reported to Shobe during said period. The city did not service, maintain or repair any of its safety signal lights prior to June 11, 1941.

Plaintiff contends that defendant is liable on an implied contract to pay for the labor and materials furnished on the theory that if one has knowledge that another is doing work for him, beneficial in nature, and does not interfere to forbid it, the work itself being necessary and useful, and appropriates the work to his own use, he is liable on an implied promise to pay the value of the work and that municipal corporations as well as private corporations and natural persons are bound by the principles of common honesty and fair dealing.

Defendant’s theory as stated in its brief is that “the trial court properly entered judgment for the defendant on its motion for judgment at the close of the plaintiff’s evidence because: (1) the plaintiff failed to prove either an express or implied promise on the part of the city to pay for the labor and material furnished by the plaintiff and (2) under the law in the State of Illinois the plaintiff cannot recover because it failed to prove that there was a valid contract in full force and effect from May 1,1941 to June 10,1941, authorized by the city council of the City of Chicago. ’ ’

There are two questions presented for our determination. The first is whether under the facts and circumstances in evidence a promise will be implied on the part of the city to pay plaintiff for the labor and material furnished by it to the defendant from May 1, 1941 to June 10, 1941 and the second is whether plaintiff can in any event recover from the city on an implied contract.

In considering the first question it should be stated at the outset that we are mindful of the rule that one man cannot make another his debtor without his consent or render services without his request and thereafter compel payment for such services. However, we think that the circumstances under which the services were rendered in this case brings it within a well recognized exception to said rule.

Plaintiff’s contract relations with the city were abruptly terminated on April 30, 1941. It was notified by the appropriate city officials that thereafter the city would perform the .services theretofore rendered by plaintiff under its written contract. It is a matter of common knowledge that the 'city had expended millions of dollars to install safety signal lights throughout the city of Chicago to aid in the prevention of accidents. When the defendant notified plaintiff that the city itself was going to service, maintain and repair the safety signal lights commencing May 1, 1941, the responsible officials of the city knew, as did plaintiff, that the city did not have the materials or the equipment with which to perform this work. As soon as plaintiff received the aforesaid notice from the city it realized that an emergency existed because the defendant, which was charged with the duty of keeping its safety signal lights in working order, was not able to perform this duty at that time.

Immediately upon its receipt of the city’s notice on May 2, 1941, plaintiff wrote the letter, heretofore set forth, to the commissioner of streets and electricity advising him of the existence of the emergency, as the result of which the public safety would in all likelihood be jeopardized, and stated in said letter that: “Welsbach Traffic Signal Company asks immediate written instructions from your Department as to whether or not your Department orders it this day to discontinue all work and service in the matter of the maintenance involved in its work ordered by the contract mentioned in your letter above quoted and to no longer hold itself in readiness, notwithstanding that no action has been taken on the pending bid of the Company for 1941.” (Italics ours.)

As -already stated, the commissioner of streets and electricity did not reply to this letter. It is fair to assume that, knowing that the city did not have the materials or equipment necessary to do the work and that it was essential that the safety signal lights be kept in working order, the commissioner of streets and electricity simply elected not to answer the plaintiff’s letter but to let it continue to service and repair the safety signal lights until the city was prepared to do the work itself. It will be noted that the city’s notice to plaintiff did not order it to discontinue the work and plaintiff was not ordered to discontinue the work at any time prior to June 10, 1941. After the expiration of its contract on April 30, 1941 plaintiff had continued doing this work on May 1 and May 2, 1941, prior to its receipt of defendant’s notice, and the emergent situation pointed out in plaintiff’s letter of May 2, 1941 to the commissioner of streets and electricity justified plaintiff’s demand that it be given “immediate written instructions” by said commissioner, if he desired it to discontinue said work. In our opinion the failure of the commissioner of streets and electricity to give such instructions constituted an implied invitation to plaintiff to continue doing this necessary work until the city was equipped to perform it.

It is idle to urge that the defendant had no knowledge that the plaintiff was servicing the safety signal lights during the period from May 1, 1941 to June 10, 1941. Shobe, the assistant traffic engineer, had direct knowledge of the performance of this work by plaintiff and in the absence of evidence to the contrary, it may be reasonably inferred that he performed his duty and reported the fact that plaintiff was doing this work to his superior, Sorenson, the city traffic engineer. Furthermore, in view of the facts and circumstances in evidence it is absurd to claim that the commissioner of streets and electricity did not have knowledge that plaintiff was servicing the safety signal lights during the period involved herein.

The city did not perform or attempt to perform any work in connection with keeping its safety signal lights in working order until June 11, 1941. The city council made an appropriation for the performance of this work by the city but not one cent of this appropriation was expended by the city for servicing its safety signal lights from May 1,1941 to June 10, 1941. That the city notified plaintiff that its contract expired April 30, 1941 and that thereafter the defendant was going to service the safety signal lights itself is inconsequential, in view of the fact that the city did not perform this work from May 1, 1941 to June 10, 1941 and in view of the further facts that defendant knowingly permitted plaintiff to perform this necessary work during said period, made no objection to such performance, did not interfere to forbid it and accepted the benefits thereof. Under the facts and circumstances in evidence the law will imply "a promise on the part of the city to pay plaintiff for the labor and materials furnished by it in servicing defendant’s safety signal lights during the period in question.

This brings us to the consideration of the second question as to whether recovery may be had against a municipality on an implied contract."

Pursuant to the power vested in it by the Cities and Villages Act (pars. 44, 65 and 65.1, ch. 24, Ill. Rev. Stat. 1939), the city council of the city of Chicago enacted an ordinance (sec. 26-12 and 26-20 of the Municipal Code of Chicago), the pertinent portions of which are as follows:

“Section. 26-12. All purchase orders or contracts involving an expenditure of more than five hundred dollars in amount shall be let to the lowest responsible bidder, after advertising for bids as hereinafter provided, and shall be approved by the mayor and countersigned by the comptroller.
“No contract involving an expenditure of more than five hundred dollars shall be made unless the same shall have been authorized by the city council.”
“Section 26-20. All contracts exceeding five hundred dollars shall be executed in triplicate, by the commissioner of public works on the part of the city, and by the contractor.
“No contract shall be binding upon the city, nor shall any work contracted for be commenced, or any materials or supplies be delivered thereunder, until such contract has been duly executed.”

Defendant insists that plaintiff is precluded from recovery because it “failed to prove there was a valid and existing contract between the plaintiff and the defendant, authorized by the City Council of the City of Chicago, ’ ’ as required by the provisions of the foregoing city ordinance.

Plaintiff asserts that municipal corporations as well as private corporations and natural persons are bound by principles of common honesty and fair dealing and that if its implied contract with the city is not enforcible the defendant would thereby he permitted to obtain an unconscionable advantage over it.

In the early case of Maher v. City of Chicago, 38 Ill. 266, the plaintiff contractor brought an action in assumpsit against the city of Chicago to recover for labor performed in dredging a portion of .the Chicago river in connection with a project of the city to deepen and widen said river. The dredging was done by plaintiff at the instance of the then Mayor of Chicago and pursuant to an understanding between the mayor and the Committee on Harbors and Bridges of the City Council and plaintiff that the latter would be paid for his work when a special assessment should be made and collected for paying the expenses of the improvement. Thereafter the city council ordered that the project be completed and paid for by special assessment (including the work performed by plaintiff). However, the Supreme Court in Wright v. City of Chicago, 20 Ill. 252, held that said special assessment was invalid and that the city had no power under its charter to make a special assessment for the purpose of deepening the river. The city thus having failed to derive the means of payment from the source whence they were expected, refused to pay plaintiff for the work done by him. In that case, although no written contract was entered into between the city and plaintiff for the performance of the work which he had done and no such contract was authorized by the city council, the court held that “the record discloses a state of facts from which the law implies a contract on the part of the city to pay for the value of the work performed.” There the court also said: “‘If,’ said this Court, in De Wolf v. City of Chicago, 26 Ill. 446, ‘one sees another doing work for him beneficial in its nature, and, by his agent, overlooks the work as it progresses, and does not interfere to forbid it, the work itself being necessary and useful, and appropriates the work to his own use, he might he liable, on an implied promise, to pay the value of the work.’ Chancellor Kent says, in the second volume of his Commentaries, page 291, ‘that corporations can be bound on implied contracts, to be deduced by inference from corporate acts, without either a vote, deed or writing, is a doctrine generally established in the Courts of the several States with great clearness and solidity of argument.’ We do not understand the counsel for the City as denying these principles to be correct legal propositions.”

The latest expression of the Supreme Court on the question as to whether a municipality may be bound on an implied contract is found in Great Lakes Dredge & Dock Co. v. City of Chicago, 353 Ill. 614. In that case the city council of the city of Chicago adopted an ordinance for straightening the south branch of the Chicago River. The ordinance provided for altering that stream between Polk street on the north and West Eighteenth street on the south by excavating a new channel 200 feet in width and about 26 feet in depth for a distance of about 5000 feet, the construction of dock walls along the banks and filling in the old channel of the river with earth. The ordinance authorized the commissioner of public works to make any and all contracts necessary for carrying out the improvement. On August 8, 1928, pursuant to the ordinance, the commissioner of public works entered into a written contract with plaintiff for cutting the channel and constructing the dock walls. The cost of the work to be done under this contract was approximately $2,700,000. Plaintiff proceeded promptly with the work and by May 28, 1929, had excavated the greater portion of the new channel and had driven substantially all of the piling for the dock walls but considerable work remained to be done by way of capping the pilings by a cap of concrete seven feet in thickness and seven and one half in width, the conCrete cap to extend about two and one half or three feet below the surface of the water in-the channel and to be anchored to the piling. In the spring of 1929 the water in the river had risen three and one half to four feet higher than its normal level due to an abnormal increase in the height of the water in Lake Michigan. Due to the unprecedented rise in the level of the river it became impossible for plaintiff to proceed with capping the dock walls. The plaintiff contractor reported the emergency to the commissioner of public works and advised him that it would have to discontinue the work under its contract until the water receded. The commissioner of public works directed plaintiff to build cofferdams and flumes so that it might finish the work under the contract and agreed that the city would pay the additional costs thereby incurred. Thereafter the city refused to pay plaintiff the cost of erecting the cofferdams" and flumes. Although the commissioner of public works promised to give plaintiff a written order for the emergency work, he did not do so upon the advice of an assistant corporation counsel. There was no city council authorization for the construction of the cofferdams and flumes in that case nor was there any written contract between the Great Lakes Dredge Co. and the city covering that work. There, in addition to holding that under its construction of the written contract between the parties the plaintiff contractor was entitled to recover $150,000 from the city for the work performed by it by reason of the emergency caused by the unprecedented rise in the level of the river, the Supreme Court said at pp. 626 and 627:

“Counsel for the city say that the city did not accept the cofferdams and flumes because they were not a part of the work but accepted only the dock walls and the excavation provided for by the terms of the contract. This argument approaches quibbling. Of course, the city did not accept the necessary labor and materials as such. The physical structure accepted was the finished product, but the use of the cofferdams and flumes, the material__and labor, and all-that went into them, was the means of bringing about the finished product. The city, by standing by and without objecting permitting this work to be done and accepting the benefits of that work, must be held to have ratified it. Ratification may be proved by circumstances or inferred from acquiescence after notice. (American Car Co. v. Industrial Com., 335 Ill. 322.) It was long ago said by this court: 'If one sees another doing work for him beneficial in its nature and by his agent overlooks the work as it progresses and does not interfere to forbid it, the work itself being necessary and useful, and appropriates the work to his own use, he might be liable on an implied promise to pay the value of the work.’ (De Wolf v. City of Chicago, 26 Ill. 443; Maher v. City of Chicago, 38 id. 267.) A municipality may be estopped to defend that its agents were without power to make a contract when the facts show that such municipality has accepted the benefits of that contract, where the contract is such as the municipality was empowered to make. (McGovern v. City of Chicago, 281 Ill. 264; People v. Spring Lake Drainage and Levee District, 253 id. 479.) We are convinced that either under the common counts, which have been fully proved and not disputed, or under the contract made by the commissioner of public works with plaintiff in error, the latter is entitled to judgment for the value of that work in the amount claimed. ’ ’

Of course, ordinarily city officials and persons dealing with them are bound by the restrictive provisions of the ordinance, heretofore set forth, but it seems clear from the foregoing cases that in furtherance of justice and where the exceptional facts and circumstances of a case demand it, the law will imply a contract on the part of a city to pay for services rendered to it.

We have examined and considered the numerous other authorities cited by the parties but in the view we take of this case we do not deem it would serve any useful purpose to discuss them.

We are impelled to hold that the trial court erred in sustaining defendant’s motion to find the issues in its favor at the conclusion of plaintiff’s evidence and in entering judgment against plaintiff for costs.

For the reasons stated herein the judgment order of the circuit court of Cook county is reversed, including its finding that plaintiff did not make out a prima facie case, and the cause is remanded with directions that defendant present a defense if it so desires and that such further proceedings be had as are not inconsistent with the views expressed herein.

Judgment order reversed and cause remanded with directions.

Friend, P. J., and Scanlan, J., concur.


author: Mr. Presiding Justice Kiley

text:
    First National Bank of Chicago, Trustee under the Will of Emaroy June Smith, Deceased, Appellee, v. American Board of Commissioners for Foreign Missions et al., Appellees, Chicago Congregational Union, Appellant et al.
    Gen. No. 43,420.

      Opinion filed April 24, 1946.
    Released for publication May 10, 1946.
    Rex Mackenzie, of Chicago, for appellant.
    Peters & Dixon, of Chicago, for certain appellee.
    Charles L. Cobb, of Chicago, for certain other appellees; George A. Chritton, of Chicago, of counsel.
   Mr. Presiding Justice Kiley

delivered the opinion of the court.

This is an action by the Trustee Bank for, among other things, instructions upon the disposition of a charitable legacy under a will to the New England Congregational Church. That Church was out of existence when the first annuity due it was to be paid. The defendant, Chicago Congregational Union, also a beneficiary under the will, seeks the legacy under the cy pres doctrine. Several other defendants, likewise beneficiaries, seek the disputed legacy for the benefit of themselves and the other charitable legatees under the will. The trial court found against the Congregational Union and it has appealed.

Emaroy June Smith died April 22, 1941. In her will she created among other trusts the Emaroy June Benevolent Fund containing the residuary estate. She named 19 charitable residuary legatees. The N. E. Congregational Church was one of these. To it she bequeathed an annuity of $1,000. The Church structure was destroyed by fire in 1936 and was never rebuilt. The Church Corporation was formally dissolved January 7, 1942. Since payment of annuities were not to commence until one year from the death of the testatrix, the Church was extinct when the first payment was due.

The decree found that the legacy to the Church had lapsed, to become part of the Benevolent Fund; that the cy pres doctrine did not apply; and that the intention of the testatrix was, that should any charitable residuary legatee cease to function, that legacy should inure to the benefit of the remaining charitable residuary legatees. The trustee was instructed to dispose of the annuity accordingly. The only defendants whose interests will be affected in this controversy are the remaining 18 charitable residuary legatees named in the will. Three of these do not oppose the claim of the Congregational Union. Six are joined as appellees. The Trustee Bank although indifferent in the controversy has filed a brief giving its views on the issue to this court as it gave them to the trial court.

The Congregational Union contends that the legacies to the Church vested upon the death of the testatrix before the dissolution of the Church Corporation, and could not lapse. The appellees say that whether the legacy did or did not lapse is not important, if the court correctly found on the question of the intention of the testatrix. They contend that if that finding is correct the annuity must inure to the benefit of the remaining charitable residuary legatees. The Bank’s suggestions are in support of the finding of the trial court on the question of the intention of the testatrix. It says that cy pres doctrine is designed to prevent the failure of a charitable bequest and that, since under the court’s construction of the will there is no question of a charitable bequest failing, the doctrine is inapplicable.

The will, in the first several Articles, disposes of personal and real property and makes educational gifts and bequests of money. In Article VII several trusts are created. From one income for life is given to a beneficiary, at whose death the corpus is to be paid into the Benevolent Fund. From another several annuities are to be paid and as each terminates the part of the corpus from which that annuity came is also to go to the Benevolent Fund. In Article VIII a trust of $250,000 is established, known as the June Family Fund. The income from this fund is payable in annuities to members of the family of testatrix. As each annuity terminates that part of the corpus ' which produced it is, likewise, to be paid into the Benevolent Fund.

In Article IX, Section 1, the Benevolent Fund is established, consisting of the residuary estate and lapsed legacies. Section 2 provides annuities in perpetuity, from the income of the Benevolent Fund, of $1,000 to the X. E. Congregational Church and $500 to each of two colleges in foreign States. If the income from the Benevolent Fund, aS originally constituted, be insufficient to pay these in full, it is to be prorated among the three.

Article X provides for 16 additional annuities “in perpetuity” in amounts ranging from $200 to $5,000 to charitable institutions. These annuities are to be paid out of the Benevolent Fund as and when “augmented” from the various trusts theretofore established in the will. These 16 beneficiaries are to receive payment “in full out of the first available income”, in the order in which they are named. The Congregational Union is named third to receive an annuity of $5,000. In Section 2 of this Article the testatrix expressed her intention to dispose of the entire income of the Benevolent Fund. Under this section, after all “augmentations” are made, payments to the 19 charitable institutions are to be increased or decreased proportionately as the income is greater or less than the annuities specified. Payments under Articles IX and X were to commence one year from the death of the testatrix.

Assuming, without deciding, that the bequest did not lapse because the Church was in existence at the time of the death of the testatrix, nevertheless, when the payments were to begin, the Church was not in existence. If the bequest vested, to whom should the annuity be paid? The Congregational Union answers that it should have the annuity under the cy pres doctrine.

In Board of Education v. City of Rockford, 372 Ill. 442, the Supreme Court approved the following definition of the cy pres doctrine as of “admirable clarity”: “If property is given in trust to be applied to a particular charitable purpose and it is or becomes impossible or impracticable or illegal to carry out the particular purpose, and if the settlor manifested a more general intention to devote the property to charitable purposes, the trust will not fail but the court will direct the application of the property to some charitable purpose which falls within the general charitable intention of the settlor.” The doctrine, however, does not apply if the settlor provides for the application of the fund in the event of the failure of the purpose first intended. 14 C. J. S. p. 516. If the annuity, therefore, can be disposed of according to the intention of the testatrix, there is no need for the court to apply the doctrine. Her intention, if not in contravention of some established rule of law or public policy, must be given effect. 40 Gyc. 1386.

The will makes provision to cover lapsed legacies, but no express provision to cover the event which has occurred. If there is an intention reasonably implied, however, that will suffice. If we can see in the terms of the will the implied intention that where one of the charitable residuary legatees should cease to exist, the remaining charitable residuary legatees should be beneficiaries of that annuity, there is no fear that the general charitable purpose of the testatrix' will suffer through failure of the particular bequest.

The Congregational Union points out that the will provided the annuity “to the following- charitable enterprises”, then naming the Church. It says that this indicates the intention of the testatrix was that the charitable enterprise of the Church, and not the Church, was the beneficiary. If this were so it would add weight to the main contention of the Congregational Union. Appellees say that if the purpose of the testatrix had. been to benefit Congregationalism and not the Church, the gift would have been to the Congregational Union. In view of the fact that both the Congregational Union and the Church were made beneficiaries, both serving generally the same charitable enterprises, and in view of the many like bequests in Articles IX and X of the will to specific institutions, we believe that there is no merit to this contention. We find that the bequest was to the Church.

The general charitable intention of the testatrix is evident from her creation of the Benevolent Fund for the residuary and the provision for the eventual payments into it of the corpora of other trust funds in the will. The only residuary legatees to share in the income from this Fund are charitable institutions. The testatrix expressly provided that the entire income from this Fund was to be disposed of. Specific amounts were bequeathed. These amounts, however, were standards, rather than limits. She provided that when the Fund was finally “augmented” the residuary legacies would be increased or decreased according to whether the income exceeded ¡or fell below the amount necessary to meet all the residuary bequests. It seems clear that benefits from this Fund were to be limited to the charitable institutions named.

Beyond the fact that the Congregational Union was given the largest bequest, there is no distinction made between it and the other 18 beneficiaries under Articles IX and X. There is no express intention to prefer it over any of the others except that it is to be paid in full before those numbered below it while the fund is being “augmented”. When “augumentations” are complete, however, it is to receive a proportionate share of the income' in excess of that required for the payment of all specific residuary bequests, or suffer a proportionate loss in the event of a deficiency.

We believe that in view of the foregoing considerations, this is not a case for application of the cy pres doctrine. The court was right in ordering that the annuity to the Church should be made available to the remaining 18 charitable institutions. The case of Volunteers of America v. Pierce, 267 Ill. 406, cited by Congregational Union, does not preclude this conclusion. In the will in that case where five legatees were seeking distributive shares of the bequest to the sixth, there was a provision “that in no event could either of the legatees take more than one-sixth.”

It is true that the particular charitable purpose that testatrix had in mind when she made the disputed legacy, has become impossible. There is no question here, however, of a loss to charity. The heirs at law and next of kin are not contending in this case for the annuity, as was the situation in most of the cases cited. The general intention of the testatrix in this will, moreover, is expressed in the provision for paying all of the income of the Benevolent Fund to 18 other charitable institutions named who were to benefit proportionately, more or less, dependent upon the size of the residuary estate. That general purpose included the particular purpose which failed. There is no need for the court to substitute a charitable purpose for the one which has become impossible. The testatrix has provided the substitute. There is no need, therefore, to comment on the many cases cited upon the cy pres rule.

We need not consider whether the court correctly found that the legacy had lapsed. It correctly found that the testatrix intended that in the event which happened, the annuity should go to the benefit of the remaining charitable legatees.

For the reasons given the decree of the Circuit Court is affirmed.

Decree affirmed.

Lewe and Burke, JJ., concur.


text:
    Margaret Heh, Administratrix of Estate of John Heh, Deceased, Appellee, v. City of Chicago, Appellant.
    Gen. No. 43,494.

      Opinion filed April 24, 1946.
    Released for publication May 10, 1946.
    Barnet Hodes, Corporation Counsel, for appellant; J. Herzl Segal, Head of Appeals and Review Division, Georgia Jones Ellis, Harry Markin and Adam E. Patterson, Assistant Corporation Counsel, of counsel.
    Joseph D. Ryan, Louis P. Miller, and Arthur Ryan, all of Chicago, for appellee.
   Mr. Presiding Justice Kiley

delivered the opinion of the court.

This is an action to recover for the death of plaintiff’s intestate who was injured in a collision between his automobile and one owned by the City and driven by Sandmeyer. Verdict and judgment were for plaintiff and against the City for $10,000. The City has appealed.

The collision occurred at Grace Street and Claremont Avenue in Chicago, December 24, 1943. Sandmeyer, a City employee,, was driving west on Grace Street in a Ford coupe on his way to a police station to repair a patrol wagon. Heh, the decedent, was driving south on Claremont Avenue in a Plymouth automobile. The automobiles collided in the intersections. The Plymouth was badly damaged and was overturned. Plaintiff’s intestate died the day after the accident.

The complaint is in four counts. The first and second counts charge negligence and wilful and wanton conduct against the City. The third and fourth counts make the same charges against Sandmeyer. Counts 1 and 2 are based on section 1 — 15, Revised Cities and Villages Act, (Chap. 24, Ill. Rev. Stats. [Jones Ill. Stats. Ann. 21.1123 (1)]) as it read before the 1945 amendment. At the time of the accident this section made municipalities of over 500,000 population liable for injuries caused by negligence of members of the Police Department engaged in performing duties as policemen. Paragraph 3 of Count 1 is expressly adopted as Paragraph 3 of Count 2. It charges that at the time of the accident Sandmeyer was a member of the Chicago Police Department engaged in the performance of his duties.

The City concedes that, under the Municipal Code, Sandmeyer at the time of the accident was a member of the Police Department. It contends that his duties, however, were those of a mechanic and not a policeman. It claims that plaintiff failed to prove that Sandmeyer was engaged in performing duties of a policeman at the time of the accident, and failed to prove the City guilty of the negligence and misconduct charged.

The City agrees that it, as well as a private person, may be bound by the acts of its attorneys except where public policy would require otherwise. Its answer expressly admitted the allegation that Sandmeyer at the time of the accident was engaged in performance of his duties as a policeman. This admission was not withdrawn.

At the close of the evidence plaintiff made a motion to dismiss Sandmeyer. An affidavit, in support of the motion stated that plaintiff was doubtful of Sandmeyer’s liability under section 1 — 15. This section provides that where the injury is caused by the negligence of a member of the Police Department, while engaged in his duties as policeman, the municipality only shall be liable. The motion was discussed between court and counsel at the time plaintiff’s counsel pressed his motion to dismiss Sandmeyer “if the record is clear that this man was engaged in performance of police duties.” The court observed that, “I wondered all during the case about that. As I read the answer there was no denial . . . as to his employment.” We think the colloquy part of which is quoted, leaves little doubt that plaintiff in dismissing Sandmeyer, relied on the City’s admission. The City’s attorney acquiesced in what transpired during the colloquy. The City made no attempt in any motion after verdict to disavow the admission.

The Statute of Limitations precludes plaintiff from suing Sandmeyer now. The City admits that the doctrine of estoppel applies to municipalities as well as private persons. We believe that justice requires that the City be estopped from changing its position now to plaintiff’s disadvantage after having led her through the admission to dismiss Sandmeyer. Mueller v. Hayes, 321 Ill. 275.

The City says that the evidence does not tend to prove negligence or wilful and wanton conduct. The same alleged acts and omissions are the basis for charging careless operation, excessive speed, failure to lookout properly, failure to yield the right-of-way and failure to sound warning. We shall not consider on this point inferences argued by the City unfavorable to plaintiff. We shall consider the evidence and inferences most strongly in plaintiff’s favor.

There was evidence that the Plymouth was proceeding south about 15 miles an hour on the west side of the street; that as it entered the intersection, the City Ford was proceeding west about 40 feet from the intersection going 35 miles per hour; that when the Ford hit the Plymouth, the latter was past the center of Grace Street and almost up to the south curb; that the Ford swerved southwest and struck the center of the Plymouth; that there was a “very loud crash”; that the Plymouth was tipped over on its side; that skid marks commenced about 15 feet east of the east crosswalk of Grace Street and extended 45 to 50 feet; that the skid marks ended about 7 to 10 feet from the southwest corner of the intersection and south of the center line about 2 or 3 feet; that Sandmeyer looked to the north before entering the intersection, but saw no car approaching; that when he first saw the Plymouth it was at the north crosswalk; and that he did not blow his horn.

In addition to the foregoing there were photographs in evidence of the extensive damage to the Plymouth and showing the closely built-up nature of the intersection. We believe that this evidence tended to prove the allegations and that the questions were for the jury.

This conclusion disposes of the objection to plaintiff’s given instruction No. 19.

The City seeks to avoid liability on the ground that Sandmeyer was engaged in performing a governmental function with immunity to the City for his Torts. It does not raise the question of the constitutionality of the Statute. We think the provisions of the Section in question are sufficient answer to this point.

Because of our conclusion upon the City’s admission that Sandmeyer was “engaged in the performance of his duties as a policeman,” we see no merit in the complaint about plaintiff’s instruction No. 1.

For the reasons given the judgment is affirmed.

Judgment affirmed.

Lewe and Burke, JJ., concur.


text:
    Eugene Thomas Calhoun, Appellee, v. Grace Hill Corning, Appellant.
    Gen. No. 43,507.
    Opinion filed April 24, 1946.
    Rehearing denied May 10, 1946.
    Released for publication May 10, 1946.
    Hubbard, Baker & Rice, of Chicago, for appellant; Alvin Glen Hubbard, of Chicago, of counsel.
    R. N. Wyckoff and Leo M. Tarpey, both of Chicago, for appellee; John B. King, of Chicago, of counsel.
   Mr. Presiding Justice Kiley

delivered the opinion of the court.

This is a personal injury action arising out of plaintiff’s fall upon an icy sidewalk in front of 301-305 West Lake Street in Oak Park, Illinois. The jury found the Village of Oak Park not guilty and gave verdict against Grace Hill Corning owner of those premises for $10,000. Judgment was entered on the verdict and Grace Hill Corning has appealed.

Plaintiff was walking west on the south sidewalk of Lake Street on February 12, 1943, about 7 p. m. The sidewalk was covered with ice and snow to a depth of three inches or so. This condition had existed for about 3 weeks. The night of the accident was dark and foggy. Plaintiff passed the east driveway leading from Lake Street into the premises. He slipped, but did not fall. When he was crossing the west driveway, he slipped, fell and was badly injured. There is .no contention made that the injury was not serious or that the verdict is excessive.

There is no question before us on the case against the Village. There is no cross-appeal.

Plaintiff alleged his due care as a pedestrian; Grace Hill Coming’s ownership, possession and control of the premises abutting the sidewalk where he was injured; the existence of an ordinance at the time Which required her “at all times” to keep the driveway “free and clear” of ice and snow and remove accumulated snow therefrom; her duty to him by virtue of the ordinance and her violation of the duty; that she had notice of the condition of the sidewalk and driveway; and that as a direct consequence “of the foregoing acts and omissions” and as a direct result of the condition of the walk and driveway, plaintiff, was injured. He described the driveway in the complaint as having a dangerous pitch and slope and that part of it was elevated several inches above the regular sidewalk level.

Grace Hill Corning, whom we shall hereinafter refer to as the defendant, contends the ice and snow were the result of natural causes and that plaintiff cannot recover; that the Village Ordinance is unconstitutional and void; that if valid, it conferred no cause of action upon plaintiff; and that, in any event, any action against her would be derivative and, since the Village has been found not guilty, she cannot be found guilty.

The driveway had been constructed before defendant purchased the property in 1940. It had not been altered since she became owner. The sidewalk, across which the driveway was built, was 6 feet wide. The length of the driveway from the building line to the curb was 14 feet, 3 inches. The driveway was 10 feet wide. It sloped upward from the curb to the building and, across the sidewalk, was higher than the sidewalk level. The highest point of elevation was 8 inches at the building line. The sidewalk sloped to and from the driveway oh either side. These slopes measured five feet to sidewalk level. All of these sloped surfaces are corrugated.

The parties agree that the property owner is not liable where the snow and icy condition has been general in the neighborhood and was not aggravated or caused in some way by the owner, but is the result of natural causes. Kelly v. Huyvaert, 323 Ill. App. 643. Plaintiff says, however, that his case comes within the exception, that is, that the condition here was caused by defendant inasmuch as the driveway was of dangerous construction and, when covered with ice and snow, was a trap. He does not contend that defendant had the duty generally to clean snow and ice from the driveway, but that here because of the dangerous driveway she maintained she had the duty. In Graham v. City of Chicago, 346 Ill. 638, the City was held liable where it neglected to remove ice which resulted from its flooding of a skating pond. In King v. Swanson, 216 Ill. App. 294, the owner was held liable where his conduct made the adjoining sidewalk more slippery than the general condition in the neighborhood.

The parties agree that a driveway is not a defect per se. Storen v. City of Chicago, 373 Ill. 530; Plaintiff says defendant was negligent in constructing and maintaining the driveway 8 inches above the sidewalk level with its dangerous slopes. Defendant admits that an abutting owner is liable where responsible for a dangerous condition or where he creates a nuisance.

It is plain that plaintiff seeks to avoid the rule which would exempt the City as well as defendant here from responsibility for accidents resulting from a general, natural condition of ice and snow. He contends the construction and maintenance of a dangerous driveway and the snow and ice conjoin to remove this case from the rule. The" general condition of ice and snow covered perfect and faulty construction alike. If the driveway was faultily constructed or maintained so as to create a dangerous condition, it is for that reason that defendant would be liable, not because of the snowy and icy condition. If plaintiff is to recover here, it must be on the ground that defendant maintained, since she did not construct, a .driveway which created a dangerous condition. There is no contention that any wrongful conduct of hers caused the ice and snow to accumulate on the driveway.

We believe the question of ice and snow is out of the case. Assuming, but not deciding, the Village Ordinance was valid, it conferred no cause of action upon plaintiff nor did it add to any he had. We think a liberal construction of plaintiff’s complaint shows the statement of a cause of action aside from the ordinance. It is possible that defendant could be guilty under such a statement and the Village not guilty. McDaneld v. Logi, 143 Ill. 487.

When the accident occurred plaintiff had already traversed the. incline to the driveway. He slipped and fell on the driveway proper. The question is whether it was of such faulty construction as to render defendant liable for injuries suffered by plaintiff as a result of falling thereon.

We have said that the driveway at the building line was 8 inches above the sidewalk level. It sloped north 14 feet 8 inches to the curb. Plaintiff was walking about 2 feet north of the building. At the point where he slipped, therefore, he was somewhat less than 8 inches above the sidewalk level. There was no further evidence of faulty construction. Under the circumstances we believe that all reasonable men could come to but one conclusion and that is that defendant should not be liable. We think the following cases support this conclusion. Burns v. City of Pittsburg, 320 Pa. 92; Heaney v. Colonial Filling Stations, Inc., 262 Mass. 338, 159 N. E. Rep. 916 ; Karolinsky v. City of Chicago, 163 Ill. App. 33.

The judgment of the Superior Court is accordingly reversed and the cause is remanded with directions to the trial court to enter judgment for defendant’s costs.

Judgment reversed and cause remanded with directions.

Lewe and Burke, JJ., concur.