text:
    In re Estate of Stanley K. Young, Deceased. Ruth Young, Appellant, v. Estate of Stanley Young, Deceased, Appearing by Francis H. McKeever, Appointed to Defend Said Claim, Appellee.
    Gen. No. 42,561.

      Opinion filed June 21, 1943.
    Levinson, Becker, Peebles & Swiren, of Chicago, for appellant; Don M. Peebles, of Chicago, of counsel.
    Francis H. McKeever, of Chicago, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

September 10, 1940, letters of administration were issued to Buth Young in the matter' of the estate of Stanley K. Young, her deceased husband. The assets of his estate were estimated at about $25,000. Afterward Buth Young filed her claim against the estate for $90,000, based on a decree entered by the circuit court of Cook county in a separate maintenance suit brought by her against her husband, Stánley K. Young. Francis H. McKeever was appointed by the probate court to defend the claim. The claim was disallowed, an appeal was taken to the circuit court of Cook county where the matter was heard on a stipulation of facts, a judgment entered disallowing the claim and the claimant, Buth Young, prosecutes this appeal.

From the agreed statement of facts it appears that Stanley K. Young was a grandson of Otto Young, deceased; that the last will and testament of Otto Young, duly admitted to probate in the probate court of Cook county, set up a trust for the benefit of his surviving widow, four daughters and their children. “The Trust, by its terms, was to be terminated upon the death of the last surviving daughter of Otto Young, and the corpus of the Trust Estate is then to be divided among the then surviving grandchildren of the testator, per capita. Pending the termination of the Trust, the grandchildren, per stirpes, have only a life estate. Two of the daughters of Otto Young were living at the time of this appeal. Stanley Young was one of the sons of a deceased daughter and thereby was entitled to a sizeable income, amounting to approximately $100,000 per annum. He had no right to receive any share of the corpus unless he survived the last child of Otto Young, which he failed to do. The First National Bank of Chicago is the Trustee under the will of Otto Young. The Estate of Stanley Young at the time of his death consisted principally of income accrued out of the Trust Estate and unpaid at the time of his death.” .

Stanley K. Young and Ruth were married in 1935. They did not get along well and he left her, and March 15, 1940, they entered into a contract with respect to her support. She brought a suit for separate maintenance in the circuit court of Cook county, making her husband and the First National Bank of Chicago, Trustee, defendants. April 17, 1940, the circuit court of Cook county entered a decree finding that Ruth Young was entitled to separate maintenance and directing the First National Bank of Chicago, as trustee under the will of Otto Young, to pay Ruth Young $20,000 per annum for 5 years. “The Decree provided that when this payment was made in full, all claims of Ruth Young against Stanley K. Young for support should cease. The Decree affirmed the terms of a contract entered into between the parties on March 15, 1940 with respect to support.” The decree further provided “that in the event of the death of Stanley Young prior to the making of the payment of $20,000 per year for five years in full, the balance remaining, to-wit, the sum of $20,000 per year for a full period of five years and unpaid, shall constitute and be a valid claim against whatever estate may be left by the defendant, Stanley Young, or whatever sum shall be due him on an accrual basis from The First National Bank of Chicago, as Trustee under the Last Will and Testament of Otto Young, deceased.” During the lifetime of Stanley Young, $10,000 was paid on account of the $100,000 leaving a balance of $90,000 for which amount the claim was filed in the probate court. Stanley K. Young died in September, 1940.

In support of their appeal, counsel for Ruth Young contend that the decree entered by the circuit court in the separate maintenance suit “fixed and determined the amount of the liability of the estate in this situation, and the decree was subject to attack only on direct appeal,” and cite Hunter v. Hunter, 121 Ill. App. 380; Stidum v. Stidum, 164 Ill. App. 261 and West v. Carter, 129 Ill. 249. In support of this counsel say that the separate maintenance decree may be erroneous if attacked on a direct appeal but that it was not void and cannot be collaterally attacked, as was adjudged by the circuit court in the instant case. Counsel then discuss the Hunter case, in which a decree was entered in a separate maintenance suit, $600 in gross awarded to the wife and an appeal taken to the Appellate Court. The court said it was error, in a separate maintenance suit, to award a sum in gross which might be done in cases of absolute divorce and that “Where the bonds of matrimony are perpetually severed and the parties are henceforth as utter strangers, or where other special reasons exist therefor, it may be desirable and proper that such order be made. The practice, however, should not pertain in suits for separate maintenance. The reasons are obvious. Notwithstanding the decree of separation, the marital, relations still exist and will continue, in the absence of a subsequent decree of absolute divorce, until the death of one of the parties. . ... If a wife, after receiving a gross sum for her future support, should through theft, sickness or other misfortune, lose, or be compelled to expend, or should even squander the same, the result would often be to impress the burden of her support upon the public. If, in that event her husband is no longer liable for her' support, the consideration of public policy alone, would render such a decree as that in question, improper.” The decree was affirmed in part and reversed and remanded as to the allowance of the gross sum.

In the Stidum case (164 Ill. App. 261) a separate maintenance suit was brought and a contract was entered into by the parties which provided that in consideration of defendant paying plaintiff $550, she released all her rights in and to his property. This contract was approved in the decree entered in the separate maintenance proceeding. The court said: “While the former decree properly determined that the contract was understandingly made, and that the provisions thereof fairly adjusted the property rights of the parties as they then existed, it was not effective finally and irrevocably to adjudicate the rights of the parties and their offspring, the chancellor in that proceeding being without jurisdiction to do so. . . . and the amount paid as consideration for the contract be treated as an allowance in gross, such gross allowance would have been erroneous for the reason stated in Hunter v. Hunter, 121 Ill. App. 380.”

The West case (129 Ill. 249) was a suit brought by West before a justice of the peace. It appeared that West had entered a horse in a race and competed for a prize. He won but never received the prize. He sued the racing association for the prize money and obtained a judgment. An appeal was taken to the circuit court. Carter signed the appeal bond. The appeal was dismissed for want of prosecution. West then sued Carter on the appeal bond. Carter defended on the ground that the original judgment was void because based on a gambling transaction but the Supreme Court affirmed the judgment holding that Carter was not a party to the original contract between West and the racing association.

Francis H. McKeever, who is defending the estate against the claim, in his brief says that that part of the decree awarding Mrs. Young the $100,000 was void as against 'public policy — that “An agreement between husband and wife whereby the husband is released from all liability and obligation to make any further contribution to the support and maintenance of his wife, is illegal and void as against public policy,” and in support cites Van Koten v. Van Koten, 323 Ill. 323; Vock v. Vock, 365 Ill. 432; and Berge v. Berge, 366 Ill. 228.

In the Van Koten case a written agreement was entered into between the husband and wife where they were living separate and apart, by which the wife relinquished any rights she might have to future support and maintenance from the husband, in consideration of $3,000 paid, etc. It was further agreed that the husband pay the wife $20 on the first of each month for the care and support of their child. Mrs. Van Koten filed her bill praying that certain deeds, signed by her, and the contract entered into with her husband, be cancelled and that he be required to make reasonable provision for the support of herself and the child. There was a hearing and the bill was dismissed for want of equity. The judgment was reversed by the Supreme Court and the cause remanded. The court there said, that where husband and wife were living apart they might lawfully make such a contract and “a provision in such contract under such circumstances that the husband will pay to the wife a certain sum each month for her support is not void as against public policy. French v. French, 302 Ill. 152.

“Marriage is a civil contract to which there are three parties, — the husband, the wife and the State,— and it is regarded as a status based upon public necessity and controlled by law for the benefit of society at large. (Leland v. Leland, 319 Ill. 426.) One of the contractual obligations of the marriage contract is the duty of the husband to support the wife, and this contractual obligation cannot be abrogated without the consent of the third party, — the State. Husband and wife may contract with each other as to their mutual property rights, but the husband cannot .by contract, either before or after marriage, relieve himself of the obligation imposed upon him by law to support his wife, and a contract between husband and wife one of the material provisions of which is that the husband shall be relieved of the obligation imposed upon him by law to support his wife is illegal and void as being contrary to public policy.” To the same effect are the other two cases above cited.

Under the law announced in these cases, we are of opinion that the court was without power to decree in the separate maintenance suit that the husband, upon the payment of the $100,000, should be released from further liability to support his wife, and that provision of the contract is void and can be collaterally attacked.

We are further of opinion that the public policy of the State has not so far changed as to warrant the provision of the decree complained of.

The judgment of the circuit court of Cook county, disallowing the claim, is affirmed.

Judgment affirmed.

Hatchett, J., concurs.


source: Caselaw Access Project

author: Justice Dady.

license: Public Domain

text:
    Ethel Trimmer, Administrator, etc., Appellant, v. Franklin Life Insurance Company et al., Appellees.
    Gen. No. 9,375.
    opinion filed May 27, 1943;
    rehearing denied July 8, 1943.
    James S. Baldwin, for appellant; James T. Whitley, for appellees.
   Opinion by

Justice Dady.

‘‘Not to be published in full.”


author: Presiding Justice Culbertson.

text:
    Fred McCuan and Eutha McCuan, His Wife, Appellants, v. Anthony Claro, Appellee.
    opinion filed June 1, 1943.
    D. L. Duty and Chas. D. Winters, for appellants; Lloyd Sloan and Trafton Dennis, for appellee.
   Opinion by

Presiding Justice Culbertson.

‘‘Not to be published in full.”


text:
    Roy Rievely, Appellee, v. Southern Illinois Scrap Iron and Metal Company, Appellant.
    opinion filed June 1, 1943.
    Jacob W. Myers and Scerial Thompson, for appellant; C. A. Whiteside, for appellee; Lloyd H. Melton, of counsel.
   Opinion by

Presiding Justice Culbertson.

“Not to be published in full.”


author: Justice Bristow.

text:
    W. G. Fortner, Plaintiff, v. W. Joe Hill, Circuit Judge, Defendant.
    opinion filed June 1, 1943.
    Julius Reznik and Pyle & McCallister, for plaintiff; Conger & Elliott, for defendant.
   Opinion by

Justice Bristow.

“Not to be published in full.”


author: Justice Stone.

text:
    Christine Williams, Appellee, v. Alton Water Company, Appellant.
    opinion filed June 1, 1943.
    Oehmke & Dunham, for appellant; no appearance for appellee.
   Opinion by

Justice Stone.

“Not to be published in full.”


text:
    Inez Guess, Administratrix of Estate of Charles Ural Guess, Deceased, Appellee, v. New York Central Railroad Company, Appellant.
    opinion filed June 1, 1943;
    rehearing denied July 8, 1943.
    Donald A. Miller, for appellant; D. L. Duty, Chas. D. Winters and Joe Crain, for appellee.
   Opinion by

Justice Stone.

“Not to be published in full.”

e


text:
    John Skarha, Appellant, v. People of the State of Illinois for use of Randolph County et al., Appellees.
    opinion filed June 1, 1943.
    T. A. O’Connor, Philip G. Listeman and J. Fred Gilster, for appellant; David N. Conn, State’s Attorney, Louis Beasley and Edward C. Zulley, pro se.

   Opinion by

Justice Stone.

“Not to be published, in full.’’


text:
    Margaret Viedenschek, Appellant, v. Johnny Perkins Playdium, Inc., Appellee.
    opinion filed June 1, 1943.
    Robert Rutledge, for appellant; MeGlynn & MeGlynn, for appellee; James F. Wheatley, of counsel.
   Opinion by

Justice Stone.

“Not to be published in full.’’


author: Presiding Justice Matchett.

text:
    Joseph Palaggi, Appellant, v. Catherine Newman and R. B. Tanner, Appellees.
    Gen. No. 42,515.
    opinion filed June 21, 1943.
    Royal W. Irwin, for appellant; O’Brien & Hanrahan, for appellees; Matthew J. O’Brien and James R. Hanrahan, of counsel.
   Opinion by

Presiding Justice Matchett.

“Not to be published in full.”


text:
    Eva Bryant, Appellee, v. City of Chicago, Appellant.
    Gen. No. 42,534.
    opinion filed June 21, 1943;
    rehearing denied July 6, 1943.
    Barney Hodes, Corporation Counsel, for appellant; J. Herzl Segal and L. Louis Karton, Assistant Corporation Counsel, of counsel; Alan Gould and Samuel J. Baskin, for appellee.
   Opinion by

Presiding Justice Matchett.

“Not to be published in full.”


text:
    Rose Kuhn, Appellee, v. City of Chicago, Appellant.
    Gen. No. 42,554.
    opinion filed June 21, 1943.
    Barnet Hodes, Corporation Counsel, for appellant; J. Herzl and L. Louis Karton, Assistant Corporation Counsel, of counsel; Samuel J. Baskin and Sidney S. Altman, for appellee.
   Opinion by

Presiding Justice Matchett.

“Not to be published in full.”


text:
    Mattie Gorton, Appellee, v. Margot Lillian Norris, Executrix of Estate of La Verne Norris, Deceased, Appellant. George L. Hecker, Intervening Petitioner.
    Gen. No. 42,579.
    opinion filed June 21, 1943.
    Howard D. Moses, for appellant; Arthur A. Wolfinsohn and Jerome M.' Brooks, for appellee; Arthur A. Wolfinsohn, of counsel.
   Opinion by

Presiding Justice Matchett.

“Not to be published in fun.”


text:
    John Ghisolf, Appellee, v. Hotel and Apartment Hotel Service Workers and Miscellaneous Restaurant Employees Union No. 593, Appellant.
    Gen. No. 42,590.
    opinion filed June 21, 1943.
    Murphy & Pearson, for appellant; Lawrence L. O’Connor, of counsel; no appearance for appellee.
   Opinion by

Presiding Justice Matchett.

“Not to be published in full.”


author: Justice O’Connor.

text:
    Genevieve M. Racine, Executrix of Estate of George P. Racine, Deceased, and Elsie Sloan, Appellees, v. Lebia Blackborn et al. Appeal of George C. Adams et al., Appellants.
    Gen. No. 42,478.
    opinion filed June 21, 1943.
    George C. Adams, pro se, and for appellants; Kamfner & Halligan, of counsel; Balford Quintín Shields, for certain appellee; Evart O. Ostberg, for certain other appellee; Thomas G. McBride, of counsel.
   Opinion by

Justice O’Connor.

“Not to be published in full.”


text:
    John Karatkiewicz and Joanna Karatkiewicz, Appellants, v. Stanislawa Strzyzynski, Appellee.
    Gen. No. 42,530.
    opinion filed June 21, 1943.
    A. J. Pikiel, for appellants; Leon N. Miller, for appellee.
   Opinion by

Justice O’Connor.

“Not to be published in full.”


author: Presiding Justice O’Connor.

text:
    John J. Kelly, Appellee, v. Paul B. Brice and Durable Materials Patent Corporation. Appeal of Paul B. Brice, Appellant.
    Gen. No. 42,728.
    opinion filed June 24, 1943.
    William H. Sloan, for appellant; John J. Enright, Jr., for appellee.
   Opinion by

Presiding Justice O’Connor.

“Not to be published in full.”


author: Mr. Justice Bristow

text:
    Anna C. Ellet, Appellant, v. Homer Farmer and Judith Farmer Ralls, Appellees.
    Opinion filed June 1, 1943.
    A. D. Morgan, of Herrin, for appellant.
    D. L. Duty and Chas. D. Winters, both of Marion, for appellees.
   Mr. Justice Bristow

delivered the opinion of the court.

Anna C. Ellet, plaintiff appellant, a widow, aged 61 years, married Phillip Ellet on May 22,1937. The latter was a widower about 60 years of age, a postmaster since 1912 in a small village in Williamson county, Illinois. He was also a farmer and coal miner. On May 6, 1936, Phillip Ellet deeded all his real estate consisting of a 40-acre farm, a post office building, and some town lots of small value to his nephew and niece, Homer Farmer and Judith Farmer Balls, defendants appellees herein. These conveyances were voluntary and without any consideration, but were made some five months before Anna lost her third husband, Harry Hart, with whom she was living until his .death on September 28,1936. The courtship of Anna and Phillip Ellet commenced sometime in November 1936. Phillip died on December 26, 1941. The conveyances aforementioned were not recorded until after his death. The appellant claims that she knew nothing about the deeds in question until after her husband had died; that throughout his courtship and their married life, Phillip had represented to her that he owned the 40-acre farm and post office building; that he continued, until the time of his death, to exercise dominion and control over all the property in question as if he owned the same. She claims, therefore, that she has been woefully defrauded; that the deed to his nephew and niece were voluntary, and being made prior to a contemplated marriage and without her knowledge is prima facie fraudulent, and consequently she was defrauded of her marital rights.

The plaintiff sought in her complaint to set aside all the deeds described hereinbefore, and to have the .real estate described therein declared intestate property, and to have her rights of dower and homestead,as the surviving spouse of Phillip Ellet established in said property.

The chancellor who heard this case did not subscribe to the factual claims of the plaintiff and denied the relief sought by her. This appeal challenges the correctness of his conclusions.

Manifestly, a freehold is involved in this controversy, and the court is without jurisdiction to entertain this appeal. Section 75, chapter 110, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 104.075], entitled “Practice Act,” provides as follows: “Appeals shall be taken directly to the Supreme Court in all cases in which a franchise or freehold or the validity of a statute or a construction of the constitution is involved, and in cases in which the validity of a municipal ordinance is involved and in which the trial judge shall certify that in his opinion the public interest so requires, and in all cases relating to revenue, or in which the State is interested as a party or otherwise.”

Although it has often been said by our courts that the determination of the question of whether a freehold is involved or not is not free from difficulty, all cases lay it down as the invariable test that if the effect of the decree is to take the freehold out of one person and to place it in another, the Appellate Court has no jurisdiction. Hutchinson v. Howe, 100 Ill. 11. The purpose of the proceeding in the instant case is to take the fee of the real estate in question from Homer Farmer and Judith Farmer Balls, and to declare it intestate property of Phillip Ellet, deceased, thereby developing a freehold interest in his surviving spouse, Anna Ellet. It seems very plain that this case comes within the above test, and consequently it is necessary for us to hold that a freehold is involved herein.

On the death of either spouse, an estate of dower becomes a freehold. Goodkind v. Bartlett, 136 Ill. 18, 26 N. E. 387; Taylor v. Taylor, 223 Ill. 423, 79 N. E. 139; Marsh v. Irwin, 168 Ill. 50, 47 N. E. 768; Walker v. Doane, 131 Ill. 27, 22 N. E. 1006. And, when a homestead in realty is involved, a freehold is involved, and the Appellate Court has no jurisdiction. . Jones v. Jones, 281 Ill. 595; Stodalka v. Novotny, 144 Ill. 125.

This court, therefore, having no appellate jurisdiction over cases when a freehold is involved, is obliged to transfer this cause to the Supreme Court of the State of Illinois.

Cause transferred.


author: Mr. Presiding Justice Sullivan

text:
    Elizabeth Hogan and Mary Burke, Appellees, v. City of Chicago, Appellant.
    Gen. No. 41,889.
    Opinion filed June 16, 1943.
    Barnet Hodes, Corporation Counsel, for appellant; James A. Velde, Adam E. Patterson and Lionel J. Berc, Assistant Corporation Counsel, of counsel.

      Augustine J. Bowe and William J. Bowe, both of Chicago, for appellees; John D. Casey, of Chicago, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

Plaintiffs, Elizabeth Hogan and Mary Burke, brought separate actions against defendant, City of Chicago, to recover damages for personal injuries. The injuries were alleged to have been sustained by plaintiffs when the automobile in which they were riding was struck by an automobile owned and operated by one Sam Jones, an employee of the City of Chicago. The actions were consolidated in the trial court. The cause was tried before the court and jury and a verdict was returned finding the defendant guilty and. assessing plaintiffs’ damages at $2,000. each. Defendant made no motion for a new trial. Its motion for a directed verdict made at the close of all the evidence, upon which the trial court reserved its ruling, and its motion for judgment notwithstanding the verdict were overruled. Judgment was entered upon the verdict. Defendant appeals from said judgment. Plaintiffs filed cross-appeals on the ground that the damages allowed were inadequate but same were waived on oral argument.

The only question presented for determination is whether the trial..court erred in denying defendant’s motions for a directed'verdict and for judgment notwithstanding the verdict. Plaintiffs insist that under the facts in this case the rule of respondeat superior applies, imposing liability upon defendant.' It must be assumed for the purposes of this appeal that plaintiffs were free from contributory negligence and that Jones was guilty of negligence in the operation of his automobile.

Sam Jones was a laborer- employed by the City of Chicago in connection with garbage removal. In beginning Ms work each morning it was his duty to report to the 19th ward office, 8559 Vincennes avenue, for his work assignment for the day. He was paid on a daily basis and “his day began at eight in the morning and ran for eight hours exclusive of lunch.” On the morning of the accident involved herein, November 23, 1938, Jones reported for work at said ward office about 7:45 a. m. Fifty or more other men also reported there at the same time for their work assignments. Three laborers and a foreman were assigned as a crew to each of a number of trucks used to haul garbage and each crew, which also included a truck driver with his truck, was ordered to go to a certain loading point, where it would proceed with its garbage removal work for the day. After receiving their assignments from the ward superintendent some of the men went to their places of work in the trucks designated for their particular crews and others in their own automobiles or in automobiles in which they were invited to ride by some of the other laborers or foremen. On the morning the accident occurred the starting point to load garbage for Jones’ crew was at 93rd and Loomis streets which was about two miles southwest of the ward office and he, his foreman and the two other laborers assigned to his crew left the ward office in Jones’ car at “approximately seven to ten minutes after eight.”. The city did not hire or rent Jones’ car and paid him nothing for the use of same.

Michael O’Malley, the ward superintendent of the 19th ward, who had general supervision in that ward over the men and trucks employed by the city to collect and remove garbage, testified that the foremen and laborers commenced their work each day by reporting to him at his office at the ward yard “at approximately a quarter of eight in the morning”; that from that time on “I give them orders”; that after assigning the laborers each day to the districts in which they were to work, he gave each foreman the names of the laborers who were to work under him; that “those who have automobiles, they 'may be foremen or may be laborers, usually conveyed [went] by automobile, and others who have no automobiles are taken to the loading point by truck”; that he had frequently seen the laborers and’ foremen going from the ward office to their various loading stations in private automobiles and that had been the habit and custom; that “the only thing I was concerned with was about the men getting to the loading point in order to make the required number of loads”; that prior to the date of the accident in question he “noticed Jones use his car . . . as a matter of fact, I noticed it on that particular morning”; and that he had never given any instructions to the foremen or laborers under his supervision with respect to the use of private automobiles and that he did not know of anyone in authority who had.

O’Malley further testified that the majority of the laborers and foremen went to their loading stations in private automobiles; that “the fact that our particular ward is so large an area, it is difficult for our laborers to get to their loading point unless they have an automobile . . . our ward is sixteen square' miles, and there is such a small amount of equipment, they find it very convenient, and of course, we do not object, because it was" convenient to us . . . they got to their loading point much quicker . . . they couldn’t start to work until the truck got there . . . there are times they get there ahead and remove the garbage from the concrete box so it was easier to shovel on . . . sometimes they go ahead to prepare the load”; and that from the time the men in Jones’ garbage collecting crew left the ward yard in his car to go to their assigned loading station their foreman was in an “immediate position of authority over them.”

O’Malley also testified that there was no departmental rule on November 23, 1938 that the laborers were to travel in the garbage trucks from the ward office to the points where they were to start loading said trucks and that it was customary for Jones to drive his own automobile from the ward yard to his loading station; and that he (O’Malley) did not have the authority to direct the garbage handlers as to what means of transportation to use in going to their loading stations.

Joseph Farrington testified that he was a section foreman for the City of Chicago and that Sam Jones, two other laborers and a truck driver were in his crew; that the men reported for work “every morning at the ward office” to get their assignments for the day from the ward superintendent or the clerk; that “he rode in Sam Jones’ car that morning along with the other two laborers”; and that he had theretofore ridden with Jones in his automobile about 12 or 15 times to their assigned garbage loading stations.

Defendant’s theory as stated in its brief is that “Sam Jones was the owner of and operating his automobile for his own personal convenience at the time and place of the plaintiffs’ injuries and was not then acting as the servant of the defendant; that the defendant had no control over the operation of Jones’ automobile at the time the injuries were sustained; ' and that therefore the defendant is not liable to the plaintiffs.”

Plaintiffs’ theory is that “the evidence does show that the plaintiffs’ injuries resulted from an act done by Jones in the course of his employment and under the control of the defendant”; that “the defendant was not entitled to a directed verdict”; and that “the evidence presented a question for the jury.”

The courts have applied the doctrine of respondeat superior to widely varying factual situations. Each case must depend upon its own peculiar facts and generally all features . of the relationship of the parties must be construed together. The general rule is that a party, injured by the negligence of another-must seek his remedy against the person who caused the injury, since such person is alone liable. To this general rule the cases of master and servant and principal and agent are exceptions and the negligence of; the servant ór agent is imputable to the master or principal, but to bring the case within the exception-it is necessary to show that the relation of master and servant or principal and agent exists between the person at fault and the one sought to be charged for the result of the wrong, and the relation must exist at the time and in respect to the particular transaction out of which the injury arose. (Mosby v. Kimball, 345 Ill. 420.)

Defendant asserts that the doctrine of respondeat superior does not apply to it because of the following-undisputed facts: J ones was employed as a laborer by the City of Chicago in connection with garbage removal and he was not employed to- drive a car. No part of the expense of operating Jones’ automobile was paid by the city. Jones’ car was not hired or rented by the city.

It is argued from these facts that neither J ones nor his. automobile was under defendant’s control or direction at the time and place of the accident, that he was not defendant’s servant when the collision occurred, that he used his car for his own personal convenience and that therefore no liability may be imposed upon the city by reason of Jones’ negligent conduct in the operation of his automobile.

. Plaintiffs rely on the following- factors in support of their contention that Jones was acting as defendant’s servant and within the scope of his employment when the collision occurred and that he- was authorized by defendant to drive his car at that time and place: His work day began at 8 a. m. His first duty in connection with his employment was to report to the ward superintendent at the ward office to get his assignment for the day. Having received said assignment his next duty was to get to the point where he was to start to load garbage. The majority of the foremen and laborers, including Jones, customarily drove to their first loading station in their own cars or cars of fellow workmen. When the ward superintendent gave Jones his assignment he knew that Jones was going to drive to his designated loading point in his own car. Jones’ assignment by O’Malley, the ward superintendent, coupled with the latter’s knowledge that Jones was going to drive to his loading station in his own automobile on the day in question, as he had done on many previous occasions, was an implied assent by O’Malley to the use of said automobile for that purpose and equivalent to a direction to do so. The area of the 19th ward is so large, according to O’Malley, that “it is difficult for our laborers to get to their loading points unless they have an automobile ... it was convenient to us . . . they got to their loading points much quicker.” From the time Jones drove his car from the ward yard his foreman who was riding with him was in an “immediate position of authority” over him. Jones was driving his car over the most direct route from the ward yard to his loading station and was within a few blocks of same when the accident happened. Jones’ work day having commenced at 8 a. m. he was employed on the city’s time both before he left the ward yard and as he drove his car from the ward yard until the collision occurred.

While it is true that Jones was employed primarily to shovel garbage onto the city’s trucks and not to drive an automobile; it is also true that under defendant’s management of those employed in garbage removal he was not permitted to go directly from his home to his garbage loading station. If he had been so permitted and if in going directly from his home to Ms garbage loading station he was driving his automobile solely for his own convenience when the accident happened, no liability could be imposed upon the city. But under the city’s system then in effect Jones was required to report first to the ward office before 8 a. m. to get his assignment for the day. Defendant urges that from the time Jones and his fellow laborers received their assignments it was immaterial to the city how they reached their loading stations — they could walk, go by street car, ride on a garbage truck or ride with others or in their own automobiles if they saw fit to do so for their own convenience. The testimony of the ward superintendent sufficiently answers defendant’s contention in this regard. He excluded riding by the men to their loading stations on street cars as being too slow. That necessarily excluded walking which would be even slower. That left Jones two alternatives — to ride on a garbage truck or to drive Ms own automobile. As heretofore shown it was the custom and practice for Jones and the others who had automobiles to drive to their loading stations 'in same and the ward superintendent permitted and encouraged them to do so.

If Jones was authorized by the city through its ward superintendent, either directly or by implication, to drive his car to his loading station on the morning the collision occurred it necessarily follows that he was acting within the course or scope of his employment in so doing. Therefore the controlling element in this case is whether Jones had express or implied authority to use Ms own car on the morning in question to get to his loading station and that presented a question of fact for the jury.

No case has been cited and we have been unable to find one in which the Supreme Court of this State has considered or determiiled the precise question involved herein where the facts were at all similar to the facts here. While there is some confusion and conflict in the authorities of other jurisdictions on the question of the liability of an employer for the negligence of his employee in the operation of his own car in the business of the employer, in our opinion American Jurisprudence states the rule applicable to the facts herein, which rule, we think, correctly reflects the prevailing opinion of American courts on this subject. This rule is as follows:

‘ ‘ The mere fact that an employee uses his own automobile in the business of the employer does not make the latter liable under the doctrine of respondeat superior for injuries inflicted by such employee in the operation of the automobile. If, however, the other circumstances involved in the case are consistent with, or require, the inference that the activity in which the servant was engaged at the time of the tort complained of, and in which he was using his own car or one which he had hired, was within the scope of his employment, the person injured may recover from the employer, if the servant’s use of the automobile or other vehicle was authorised, either expressly or impliedly. Thus, if an employee, with the knowledge and assent of the employer, repeatedly uses an automobile, not owned by the employer, in the latter’s business, the employer will be held to have impliedly authorised its use and to be liable for negligence in connection therewith, but the mere fact that an automobile was used on one occasion, unaccompanied by any evidence of other similar acts, does not justify any inference that the employee was later authorised to use the machine upon the employer’s business.” (5 Am. Jur. 728, 729, par. 393.) (Italics ours.)

The majority view on this question is also stated under the heading “Employer’s liability for negligence of employee in driving his own car or other vehicle in employer’s business,” in the “Annotation” in 112 A. L. R., at page 921:

“If the other circumstances involved in the case are consistent with or require the inference that the activity in which the servant was engaged at the time of the tort complained of was within the scope of his employment, the mere fact that the automobile or other vehicle used by him, and which occasioned the injury, belonged to or was hired by him, will not preclude the person injured from recovering from the employer, if the servant’s use of the vehicle was authorized, either expressly or impliedly, by the employer.”

In Miller v. Metropolitan Life Ins. Co., 134 Ohio St. 289, it was held at pp. 293 and 294:

“With respect to the principal’s liability for the torts of his agent, the following test is generally applied: First, was the act, out of which the tort arose, one which has been authorized, expressly or by implication, by the employer; second, was the act, out of which the tort arose, one performed in the course and scope of employment? If these questions are answered in the affirmative, the doctrine of respondeat superior is applicable and liability attaches to the employer ; otherwise not.

“The question whether Evans had authority, express or implied, to use his own automobile in the discharge of his duties is one of fact for the jury. From the evidence introduced, it is possible for different minds reasonably to draw different conclusions. Consequently, submission of this question to the jury was proper. Durbin v. Humphrey Co., 133 Ohio St. 367. Though the record does not disclose an express authorization to Evans to use his automobile in his work, it does disclose facts and circumstances from which a jury may properly find implied authorization.

“Risley, the district manager, testified that he gave Evans no authority to use his automobile; that consent was neither sought nor given; that he knew that Evans sometimes used an automobile in connection with his work, but that he expressed no objection thereto. Thus, use of an automobile, though not expressly required, was nevertheless allowed; though not expressly authorized, was not expressly forbidden. Its use continued and acquiescence continued with it. Continued acquiescence in the performance of a previously unauthorized act ripens into tacit approval and authorization.

“Where an insurance solicitor uses his automobile in his work, with the knowledge of his employer, repetitious use by the solicitor, without express disapproval by the employer, will be treated as a use with implied authority.”

Department of Public Works v. Industrial Accident Comm., 128 Caí. App. 128, 16 P. (2d) 777, while a workmen’s compensation case, involved facts practically identical with the facts in the instant case. There the employee, Dreyer, was a highway laborer. He was required to report each morning at a toll house where he received orders as to what point on the highway he was to work. The employer had trucks that left the toll house to go to the various working points and some of the laborers rode in said trucks. Other laborers customarily rode from the toll house to their working places in their own cars and there was no objection from the foreman to their doing so or instructions to the contrary. On the morning of the accident Dreyer reported to the toll house and received orders to go to a certain point on a highway. He got in his car and his foreman got in with him as a passenger and they started to drive on the road to the place where the work was to be done. On the way the automobile ran off the road and Dreyer was killed. His widow claimed compensation from the employer on the ground that the accident occurred in the course of his employment. The employer contended that the accident occurred while Dreyer was en route to work and not while he was actually engaged in the course of his employment, and that he was driving his own machine; the operation of which the employer had no right to control. In holding that the accident did occur in the course of the servant’s employment the court pointed out that from the time Dreyer reported at the toll house he was under the direction of his employer’s superintendent and foreman. In that case the court said (at 128 Cal. App. 131):

“While it is true that the employer made provision for workmen to ride to the point of actual service on trucks which were used in the highway work, this means of conveyance was not required of the workmen. Some of them drove to the place of employment in their own machines. The foreman was aware of this custom and acquiesced in the practice. On the morning of the accident the assistant foreman, who was in charge of the day’s work, consented to Dreyer’s offer to drive them on to the point where they were to commence clearing the highway. He actually rode with Dreyer. Since the day’s Work had begun, and Dreyer was then under the supervision of the foreman, he was actually subject to directions from Clark. It may not be said they were not engaged in the course of employment merely because the shoveling of snow had not actually commenced. It would be just as reasonable to assert they were not engaged in the course of employment during intervals while they were traveling, either by machine or on foot, from one point where snow or debris had accumulated to another. They were employed to clear the highway on the mountain grade above the toll-house. The section of the highway was their field of employment. The Department of Public Works may not deny liability merely because Dreyer was going in his own machine from one point of service to another in the field of his employment. Dreyer was encouraged to do this. The employer acquiesced in this particular use of the owner’s machine.

“This acquiescence in the means of transportation is equivalent to directing it to be done. By approval of the employer it became an authorized alternative means of- traveling from one point of service to another in the general field of employment. Under the circumstances-of this case it would be unreasonable to say that Dreyer was not actually engaged in the course of his employment at the time of the accident which caused his death.”

In Kohl v. Albert Lifson £ Sons, 128 N. J. L. 373, 25 A. (2d) 925, where the facts were somewhat similar to the facts here, it was said at pp. 926 and 927, of the last mentioned report:

‘ ‘ The test is whether the employee is on the employer’s business at the time. 5 Am. Jur. 709, sec. 373; 729 sec. 393. Whether the car is the property of the employer or not is immaterial if its use was authorized by the employer, as here it was. Wesolowski v. John Hancock Mutual Life Ins. Co., 308 Pa. 117, 162 Atl. 166, 87 A. L. R. 783, 787; 17 A. L. R. 621; 54 A. L. R. 627. See, also, Warne v. Moore, 86 N. J. L. 710, 94 Atl. 307; Auer v. Sinclair Refining Co., 103 N. J. L. 372, 376, 137 Atl. 555, 54 A. L. R. 623. Compare Giroud v. Stryker, etc., Co., 104 N. J. L. 424, 140 Alt. 305.

“It is conceded that Bertiger was an employee of appellant and.on appellant’s business at the time of the accident. The argument for nonliability of the employer must necessarily rest on the theory that while the employee was driving his own car the employer could not have control over the manner of the employee’s driving. If that were to be the test, an ’ employer could never be held except in cases of willful wrong in giving instructions to an employee who later executes such wrongful instructions faithfully.”

In Pinnix v. Griffin, 219 N. C. 35, 12 S. E. (2d) 667, this language was used at p. 669:

“May the negligence of a servant in the use of his own car in the master’s business render the latter liable for an injury when such use is habitual and known to the master, or could, by reasonable diligence, have been known to the master? From the wide field of encyclopaedic law many decisions may be cited pro and con on this subject, and some of the opinions cited in the briefs in the instant case maintain the positions taken by the respective courts with commendable vigor. But it is no longer an open question in this State. For well-considered reasons, no doubt, this court has adopted the view that the employer is liable where the employee causes an injury by the negligent operation of his own car, used in the prosecution of the employer’s business, when the latter knew, or should have known, that he was so using it.”

(Other cases which either expressly or impliedly support the majority view as heretofore set forth on the question under consideration may be found under *‘Annotation” in 60 A. L. R. 1163, 87 A. L. R. 787, 112 A. L. R. 920 and 140 A. L. R. 1150.)

Defendant relies upon and cites the following cases in support of its position: Reardon v. Coleman Bros., 277 Mass. 319, 178 N. E. 638; Holdsworth v. Pennsylvania Power & Light Co., 337 Pa. 235,10 A. (2d) 412; Gittelman v. Hoover Co., 337 Pa. 242, 10 A. (2d) 411; Burster v. National Refining Co., 274 Ill. App. 104; American Savings Life Ins. Co. v. Riplinger, 249 Ky. 8, 60 S. W. (2d) 115; McCarthy v. Souther, 83 N. H. 29, 137 Atl. 445; Wesolowski v. John Hancock Mut. Life Ins. Co., 308 Pa. 117, 162 Atl. 166.

All these authorities in which the facts are at all similar to the facts here hold directly or in effect that regardless of whether the servant, while driving his own automobile, was acting in furtherance of his master’s business and within the scope or course of his employment and with the authority of his master, express or implied, and even though the employer pays all or part of the expenses of the operation of his employee’s car, still no liability may be imposed upon the master for the servant’s negligent operation of his automobile unless it further appears that the master had control of or the right to control his employee in the actual management of his car. We are not in accord with the minority view as expressed in the cases cited by defendant that the essential test as to the master’s liability for his servant’s negligence in driving his own ear within the course of his employment and even with the authority of his master, is the right of such employer to control the actual management and operation of the servant’s car. We agree with the statement in Kohl v. Albert Lifson & Sons, supra, that “if that were to be the test, an employer could never be held except in cases of willful wrong in giving instructions to an employee who later executes such wrongful instructions faithfully.”

We fail to see what difference it makes in so far as the employer’s liability for the negligent act of his employee is concerned, whether the servant was driving his employer’s car with his express authority or whether he was driving his own car with the implied authority of his employer, so long as in either case such driving was done in connection with his master’s business and within the course of his employment or incidental thereto. • It is difficult to perceive how defendant’s liability for its servant’s negligence would be affected by the fact that the car was owned by the servant and that he was paying the expenses of its operation.

In our opinion the controlling element in this case is whether Jones, acting within the course of his employment, was authorized to use his own automobile to get to his loading station and that presented a question of fact for the jury. The evidence discloses beyond a doubt not only that Jones was driving his car when the accident occurred with the acquiescence, knowledge, consent and permission of defendant but that the city through O’Malley, its ward superintendent, actually encouraged him to do so. This being so the only permissible conclusion for the jury to have reached under the circumstances in evidence was that Jones had implied authority to drive his automobile to his loading station and that, since he had implied authority to so drive his car, his driving of same was within the course of his employment.

We are impelled to hold that the trial court did not err in denying defendant’s motions for a directed verdict and for judgment notwithstanding the verdict.

The judgment of the circuit court of Cook county, is affirmed.

Judgment affirmed.

Friend and Scanlan, JJ., concur.


text:
    National Builders Bank of Chicago, Administrator of Estate of Ralph Biggs, Deceased, Appellant, v. Herbert Schuham, Appellee.
    Gen. No. 42,020.

      Opinion filed June 16, 1943.
    Harry George, of Chicago, for appellant.
    George C. Bliss and Abraham Lefine, both of Chicago, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

This action was brought by National Builders Bank of Chicago, administrator of the estate of Ralph Biggs, deceased, against defendant, Herbert Schuham, to recover damages for the death of Biggs which was alleged to have been caused by the negligence of defendant. The trial court reserved its ruling on defendant’s motion for a directed verdict at the close of plaintiff’s case. No. evidence was presented by defendant and the trial court also reserved its ruling on defendant’s motion for a directed verdict at the close of all the evidence. The cause was submitted to the jury which returned a verdict finding defendant guilty and assessing plaintiff’s damages at $1,000. After denying defendant’s motion for a new trial the court allowed his motion for judgment notwithstanding the verdict. Plaintiff appeals from such judgment.

Plaintiff’s amended complaint alleged substantially that on and for sometime prior to December 2, 1938 defendant owned the building at 1008 West Madison street, Chicago, Illinois) in which he operated the Adams Hotel; that decedent Biggs and defendant entered into a written contract under the terms of which the former agreed to' paint certain window frames and sashes and other portions of said building; that under said contract decedent was invited upon defendant’s premises to perform the work specified therein; that on December 2, 1938, while Biggs was in the exercise of due care and caution for his own safety “in painting a window frame on the third floor of said building . . . and without any knowledge of the dangerous and unsafe condition of said window, the said window or window frame collapsed”; that Biggs was thereby thrown to the ground' and suffered injuries which resulted in his- death six days later; that it was the duty of defendant to maintain the window frames in his building “in a reasonably safe and proper condition so as not to injure and cause injury to persons lawfully on said premises”; and that “unmindful of his duty the said defendant negligently suffered and permitted said window frame to be and become in a dangerous and unsafe condition in this that the said window frame became rotted and broken, and loosened from the wall in which said window frame was fastened, and that said defendant had full and complete knowledge of said dangerous and unsafe condition, or in the exercise of ordinary care and caution could or should have had knowledge thereof.”'

Defendant admitted his ownership and operation of the building in question but denied all other material allegations of the amended complaint.

It appeared that Biggs is the same person who under the name of J. Stanley entered into a written contract with defendant on July 24, 1938 to do certain painting in the Adams Hotel for $150, including the window frame and window sash involved herein. Biggs commenced work on this paint job sometime in the summer of 1938 and worked at it intermittently when he was not elsewhere engaged. On the afternoon of December 2, 1938 he was working on the thirty-second or last window covered by his contract. The lower sash of this window was removed and placed in the room. The upper sash was stationary but it could have been easily removed from the frame. Biggs sat on the window sill facing the window, with his body extending outward beyond the window. While he was in that position he was reaching upward with a paint knife in his right hand and scraping off the old paint from the outside of the upper part of the top window sash. The lower cross-bar of that sash broke almost at the center and fell away from said sash carrying some or all of the glass in the window pane with it. This caused Biggs to lose his balance on the window sill and he fell to the roof of an adjoining one-story building, thereby receiving his fatal injuries.

Frank Zangrilli, the only eyewitness to the occurrence, testified that he was sitting in his office at 17 North Morgan street which was a short distance to the east of the east side of the Adams Hotel; that he “was watching a man painting a window — scraping some old paint off a window . . . the man sitting on the ledge, on the window-sill, and he had reached his arm — he had put his left arm up to hold himself — to balance himself on the sill, and was scraping up with his right hand to get the scales of paint off the outside of the window . . . the man had not sat there for a minute or two when the cross-bar of the sash gave away, and he came falling down, tumbling down to the one-story building that is directly next door to the hotel that he was painting ... I saw him fall out of the • window . . . the cross member of the bottom — of the sash fell — broke out and came down with him, including the window-pane”; that “he noticed the piece of wood that fell down from the window and picked it up”; that ‘1 the wood was rotted”; that ‘‘the piece was broken . . . from the man pulling it down, it broke right in half ... it came down on the corners, broke in half, and the ends came down also”; that he could tell from the broken parts of the cross-bar of the sash that they were “joined by a tongue and groove, the vertical pieces, to the cross member of the sash . . . the ends were broken out . . . the cross-bar . . . was broken in two pieces about 12 or 13 inches long.”

Zangrilli testified on cross-examination that as decedent sat on the window-sill scraping the scaling paint from “the upper right hand corner, the extreme outside of the window” he did not hold onto the crossbar of the sash with his left hand but had about half of his forearm under said cross-bar; that “I would not call it a leverage ... I would call it more to sort of brace himself, just holding on”; that he saw “that bar gave way . .. . right in the crook of his elbow”; that the piece.of the sash that he picked up on the roof where Biggs fell was “brown with rot” one the inside; that it was decayed at the point where the sash broke.

Joseph Searcy testified in plaintiff’s behalf that the next day after Biggs’ accident he “found the crossbar of the top half of the window — the lower cross-bar was broken and the glass was all broken out, and the window was unrepairable and I had to replace it with a new one ... I found a cross-bar on the roof down below ... it was very much decayed and very weak ... it was broken in the center”; that he took said cross-bar home- and after keeping it for a few years it was lost. Searcy testified on cross-examination that the break in the cross-bar of the sash was “splintery-like ... on one side I saw splinters there.”

John J. Hennessey testified that he was a police officer and that he had been assigned to investigate the decedent’s accident; that sometime after the occurrence he saw the lower cross-bar of the upper window sash in Searcy’s possession; and that “it was an old piece of a part of an upper, sash, broke in half ... it was a stick, about 30 inches in length, which would be the lower part of the upper sash of the wood that goes across and holds the glass up . . . it was an old piece of wood.”

The only question presented for determination is whether the action of the trial court in entering judgment notwithstanding the verdict was proper. Plaintiff insists that whether decedent was free from contributory negligence and whether defendant was guilty of actionable negligence were questions of fact for the jury and that the evidence amply supported the jury’s verdict. On" the other hand it is contended that under the undisputed evidence decedent was guilty of contributory negligence and defendant was not guilty of actionable negligence as a matter of law. In passing upon the propriety of the action of the trial court in rendering judgment in favor of defendant notwithstanding the verdict, the evidence, including all reasonable inferences deducible therefrom, must be considered in its aspect most favorable to plaintiff.

It is a familiar principle in the law of negligence that every man who expressly or by implication invites others to come upon his premises assumes to all who accept the invitation the duty to warn them of any danger in coming, which he knows of or ought to know of, and of which they are not aware. (27 Am. Jur. 510, sec. 30.) An owner owes such duty to an independent contractor or his servants while working upon his premises. (Calvert v. Springfield Electric Light & Power Co., 231 Ill. 290.)

The rule governing the duty owed by the owner of property to an independent contractor employed by him and to the latter’s servants is clearly stated in Nettis v. General Tire Co. of Philadelphia, 317 Pa. 204, where the court said at pp. 209, 210:

“It is the rule that the owner of property owes to an independent contractor and his servants at work thereon the duty of exercising reasonable care to have the premises in a safe condition for the work, unless the defects responsible for the injury were known to the contractor. The owner is not charged with the absolute duty of having the premises safe; his duty is discharged by the exercise of reasonable care. All the authorities agree that it is incumbent upon the owner of premises upon which persons come by invitation, express or implied, to maintain such premises in a reasonably safe condition for the contemplated uses thereof and the purposes for which the invitation was extended; Newingham v. J. C. Blair Co., 232 Pa. 511; Craig v. Riter-Conley Mfg. Co., 272 Pa. 219. . . . While the owner ... is required to use reasonable care to guard the employees against injury, he will not be liable where causes of the injury intervened which he neither did nor could expect: Rugart v. Keebler-Weyl Baking Co., 277 Pa. 408. ‘An owner of a building is not liable for injuries to a servant or to a person lawfully upon his premises by reason of latent defects of which he was ignorant and which could not have been discovered by the exercise of reasonable care and diligence.’ Lentz v. Allentown Bobbin Works, 291 Pa. 526.”

Under the undisputed facts and circumstances in evidence as to decedent’s conduct it might well be held as a matter of law that he was guilty of contributory negligence and that he assumed the risk of being injured in the manner in which he was injured while engaged in painting or preparing to paint the window in question, but we prefer to rest our decision on the utter failure of plaintiff to prove any actionable negligence on the part of defendant. There being no evidence that the defendant actually knew of a dangerous condition in the window sash, if he is to be held liable it can only be because there is evidence in the record warranting the conclusion that he failed to use the care that an owner of ordinary prudence in the same situation as he, would have used to discover the rotted or decayed condition of said window sash.

It will be remembered that it was only after the accident occurred that it was learned that a portion of the interior of the lower bar of the sash was rotted. It is not claimed that the evidence showed that any rot or decay was discernible on the outside of the lower bar of the sash prior to the accident. There was no rot in the wood discoverable by an ordinary and reasonable inspection before the decedent commenced to work on the window sash in question, because, if there was, he would unquestionably have discovered it himself, since his work brought him into direct contact with it. Under the facts of this case it must be held as a matter of law that the defendant was not guilty of negligence unless it was his duty in the exercise of reasonable care to take or saw apart the lower bar of the sash in question to discover whether it had rotted on the inside before he permitted decedent to paint or prepare to paint said sash. Defendant was under no such duty. To hold the owner liable under the circumstances shown here would place upon him an unreasonable burden which the law does not do. He was only required to use reasonable care to protect those lawfully upon his premises. This degree of care did not place upon the defendant property owner the task of testing the wood in the sashes of all the windows covered by the contract before permitting decedent to paint same.

In so far as we have been able to ascertain the Supreme Court of this State has not been called upon to determine the precise question presented here under a factual situation at all similar to that in the case at bar. We have examined all the authorities cited by plaintiff. The only one of them wherein the facts even remotely compare with the facts in this case is Houlihan v. Sulzberger & Sons Co., 282 Ill. 76. In that case the-defendant made a contract with the Hamler Boiler and Tank Works for the repair of the smoke stack on its building. Inside the building there was a stairway-leading to the fifth floor and a stationary ladder from the-fifth floor to the skylight on the roof. There was also a wooden ladder attached to the side of the building from the roof of an adjoining building to the roof of defendant’s building. This ladder was painted red and was apparently intended to be used as a fire ladder in case of emergency. The deceased was an employee of the Hamler Boiler and Tank Works and while using the outside ladder to go up on the roof of the building in the performance of his employer’s contract, certain rungs of the ladder, which had become rotted, gave way and the deceased fell to the.roof of the adjoining building and was killed. In holding that no error was committed by the trial court in refusing to direct a verdict for the defendant owner and that the case was properly submitted to the jury, the court there said at pp. 79 and 80:

“If the deceased had gone up the stairway and ladder inside the building he could not reasonably be called a trespasser, and if he had been injured by reason of their defective condition the plaintiff in error would not have been relieved úf liability. The fact that1 of two ways, apparently equally available, he chose the one that was more convenient does not change the rule. . . . The rotten condition of the ends of the rungs for a -half inch to an inch from their ends,' so that a nail could be pulled through and the ends crumbled with the fingers, as testified to by witness, tended to show that the condition must have existed for a longer time than two months and could have-been-discovered by a thorough inspection. ... To say the least, it was a question of fact whether a reasonably thorough inspection of an appliance of this character would not have disclosed is unsafe condition.”

The rule as enunciated in the foregoing case is not applicable to the factual situation presented here. In this case the defective and dangerous condition was not open and obvious and was not discoverable by the exercise of ordinary care on the part of the owner.

In the Houlihan case the rotten condition of the ends of the ladder rungs was open and obvious and such condition was discoverable by the exercise of ordinary care. When a nail could be pulled by hand through the exposed rotten part of the rungs of the ladder and the rotten ends ec crumbled with the fingers,” it certainly was, as the court said in that case, “a question of fact whether a reasonable thorough inspection of an appliance of this character would not have disclosed its unsafe condition.”

Since under the evidence in this case the defendant neither knew nor reasonably should have known of the defective condition of the lower bar of the upper window sash, he is not liable as a matter of law, and his motion for judgment notwithstanding the verdict was properly allowed.

The judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

Friend and Scanlan, JJ., concur.


text:
    Frances Adams, Formerly Frances Kosinski, and Stanley Kosinski, Apellants, v. Josephine Rakowski and Alex Rakowski, Appellees.
    Gen. No. 42,337.
    Opinion filed June 16, 1943.
    Mitchell Kilanowski, of Chicago, for appellants.
    Bull & Rugen, of Chicago, for appellees; Follett W. Bull and Richard C. Rugen, both of Chicago, of counsel.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

Frances Adams, formerly Frances Kosinski, and Stanley Kosinski are the petitioners and Alex Rakowski and Josephine Rakowski .are the respondents in the instant proceeding for contempt. The petitioners will be hereinafter referred to as plaintiffs and respondents as defendants. Plaintiffs’ father predeceased their mother and sometime prior to June 1928 the latter before her death turned over $1,000 in cash and securities of the face value of $6,000 to her father, Stanley Rakowski, who received same in trust for the use and benefit of plaintiffs, his grandchildren. At that time plaintiffs were minors, less than 10 years old, and the trust was created solely by parol agreement. Upon the death of plaintiffs’ mother, Sophie Kosinski, their grandfather, Stanley Rakowski, assumed the guardianship of their persons and caused them to be placed in St. Hedwig’s Orphan Asylum where they remained several months. Then with the consent of their grandfather they were taken from said orphanage and went to live at the home of Alex Rakowski and his wife Josephine Rakowski, where they continued to live for a number of years. Alex Rakowski was the son of Stanley Rakowski and a brother of plaintiffs’ mother, Sophie Kosinski. On or about October 1, 1928, which was shortly after plaintiffs commenced to reside with defendants, the grandfather of the Kosinski children, delivered the $4,000 and $2,000 second mortgage notes and the $1,000 in cash, which he had received from plaintiffs’ mother, to the defendants, Alex Rakowski and Josephine Rakowski. Plaintiff Stanley Kosinski resided with defendants until June 1, 1935 and plaintiff’ Frances Adams, formerly Frances Kosinski, resided with them until December 1, 1935.

When the original complaint was filed in this cause on September 27, 1938 asking that defendants be declared constructive trustees of the property entrusted to them for the use and benefit of plaintiffs and that they be required to make an accounting as to said property, plaintiffs were still minors but they have since attained their majorities.

The original decree, which was entered June 25, 1940, after finding that defendants were entitled to certain credits, including reasonable compensation for the care, maintenance and education of plaintiffs while they resided with said defendants, adjudged that: “the said Alex Bakowski and Josephine Bakowski, as trustees ex malificio, pay over to the plaintiffs, Stanley Kosinski and Frances Kosinski, within thirty (30) days from June 17th, 1940, the sum of Four Thousand Five Hundred Forty-Six and 15/100 ($4,546.15) Dollars and interest thereon from November 17th, 1939, at. the rate of 5% per annum, being the sums of money wrongfully withheld from the plaintiffs, Frances Kosinski and Stanley Kosinski; that in the event the said defendants, Alex Bakowski and Josephine Bakowski should fail to pay the said sum of Four Thousand Five Hundred Forty-Six and 15/100 ($4,546.15) Dollars with interest thereon from November 17th, 1939, at the rate of 5% per annum, within thirty (30) days from June 17th, 1940, that they shall within said period of thirty days disclose in writing and file in this cause a statement under oath setting forth in detail the assets they jointly and severally possess, either in their name or any other name [and the names] of all banks in which they or either of them now have, or may have had accounts at any time since October of 1928, together with the amounts and dates of deposits and withdrawals therefrom, and that the plaintiffs have leave to apply for further proceedings with reference to said statement and to apply for a reference to a master for the purpose of interrogating Alex Bakowski and Josephine Bakowski with reference to the same.”

Defendants having failed to make the payment to plaintiffs, as directed by the decree, the latter filed a petition for a rule upon defendants to show cause why they should not be held in contempt of court for their failure to comply with the terms of the decree as to such payment. A rule to show cause was ordered to issue. Both defendants filed answers to said rule and the cause was referred to a master in chancery for a hearing on the rule to show cause and the answers thereto. The master’s term of office having expired during the pendency of said hearing he was appointed a special commissioner and as such made his report. In his report he made detailed findings as to defendants’ financial affairs and as to every purported interest either of them had in real or personal property. His report concluded with the finding that “ said defendants have not complied with the terms of the decree heretofore entered in this cause directing them to pay certain moneys to the plaintiffs; that said defendants have no property with which to pay said moneys and that their income has not been sufficient to enable them to comply with the terms of said decree. I therefore find that the failure on the part of said defendants to comply with the terms of said decree was not wilful.” The special commissioner recommended “that the rule against each of said defendants be discharged.”

After overruling all exceptions to the report of the special commissioner the trial court entered a decree on February 20, 1942 in which it expressly found the facts as to defendants’ financial affairs to be as the special commissioner found them and that defendants’ failure to comply with the terms of the decree “was not wilful.” The decree also found that defendants were the owners of the equity of redemption as to certain premises which had been theretofore sold at a foreclosure sale but that the value of the interest of defendants in said equity of redemption was “nothing.” The decree then ordered that defendants convey to plaintiffs “their right, title and interest in and to” said equity of redemption and that they assign to plaintiffs “their right, title and interest in and to a certain contract between themselves, certain other parties and the Home Owners’ Loan Corporation.” It was further found by the decree that said conveyance and assignment were executed by defendants in open court and delivered to and accepted by the attorney for plaintiffs. The decree concluded by ordering that the rule against defendants to show cause be discharged. Plaintiffs appeal from this decree. It should be noted that the “equity of redemption” conveyed by defendants to plaintiffs as directed by this decree had no value and that defendants’ interest in the contract assigned to plaintiffs was likewise valueless.

Plaintiffs insist that the trial court should have found defendants guilty of contempt of court and ordered them committed to the county jail until such time as they paid plaintiffs $4,546.15 and interest thereon as required by the decree entered on June 25, 1940, or until they were otherwise discharged from imprisonment by due process of law.

Defendants assert that the only question involved in this appeal “is whether or not upon a civil judgment, the defendants can be imprisoned for the nonpayment of 'the same, even though they have turned over all of their available assets in satisfaction of the judgment and have been found by the court below not to be guilty of any wilful conduct in not paying the same. ’ ’

It should be pointed out at the outset that in a proceeding such as this to punish -defendant's for civil contempt for their failure to comply with a decree directing them to repay money received from plaintiffs or on their behalf, the defense of inability to pay, even though such inability to pay was found not to he contumacious, is not governed by the same rules as are applicable to a petition for discharge from imprisonment on the ground of insolvency after commitment as for a civil contempt for their failure to comply with such decree.

The general rule seems to be that in proceedings to punish one as for civil contempt for failure to carry out the directions of a decree to pay money or deliver up property, proof that the disobedience to the decree

t has not been wilful but was due solely to the pecuniary inability or other misfortune of the accused, not resulting from his fraudulent conduct to produce that condition, will purge him of the contempt. (Tudor v. Firebaugh, 364 Ill. 283; People v. LaMothe, 331 Ill. 351; Blake v. People, 80 Ill. 11; O’Callaghan v. O’Callaghan, 69 Ill. 552; Wightman v. Wightman, 45 Ill. 167; Herrington v. Cassem, 82 Ill. App. 594; Schuele v. Schuele, 57 Ill. App. 189; Rapalje on Contempt, p. 192; Hendryx v. Fitzpatrick, 19 Fed. 810; Nisbet v. Tindall, 115 Ga. 374; Pierce v. State, 54 Kas. 519; Camden v. Virginia Safe Deposit & Trust Corp., 115 Va. 20; McClung v. McClung, 33 N. J. Eq. 462.)

The foregoing rule is not applicable to this case since defendants received and had possession of the money and property committed to their care for the benefit of plaintiffs and wrongfully disposed of or withheld that portion thereof, which they were directed by the original decree to pay plaintiffs. Defendants’ receipt and possession of said money and property and their wrongful disposition or withholding of that part of same directed to be repaid, precludes them from pleading poverty or inability to pay as a defense to this proceeding to punish them as for civil contempt. That this is the law is beyond question. In Tudor v. Firebaugh, 364 Ill. 283, the court said at pp. 287, 288:

“The power of a court of equity to punish for contempt by imprisonment upon the refusal of a trustee to pay over money actually received and wrongfully withheld is well established. (People v. LaMothe, 331 Ill. 351; Chew’s Appeal, 44 Pa. 247; In re Meggett, 105 Wis. 291, 81 N. W. 419.) It is no defense in such case that the fund has been devoted to other purposes. (People v. Zimmer, 238 Ill. 607; Rudd v. Rudd, 184 Ky. 400, 214 S. W. 791; Jastram v. McAuslan, 29 R. I. 390, 71 Atl. 454; Wise v. Chaney, 67 Iowa 73, 24 N. W. 599.) However, section 12 of article 2 of the constitution provides that ‘no person shall be imprisoned for debt, unless upon refusal to deliver up his estate for the benefit of his creditors, in such manner as shall be prescribed by law, or in cases where there is strong presumption of fraud.’ In the enforcement of this constitutional provision every doubt should be resolved in favor of the liberty of the citizen. No one should be imprisoned for a failure to pay money unless the evidence clearly shows that the party charged has the money within his power to pay, or that he had the money and wrongfully disposed of it.” (Italics ours.)

Defendants are mistaken in their assertion that the amount of money specified in the original decree to be repaid by them to plaintiffs is nothing more than a “civil judgment” which constitutes a debt, imprisonment for which is prohibited by section 12 of article 2 of the constitution of the State of Illinois. True it is that the money ordered repaid is a civil judgment but it is that and more. Inherent in said judgment is the element of fraud in the wrongful disposition or withholding of money and property entrusted to them for the care and benefit of plaintiffs. It will be noted that one of the provisions of the foregoing section of the constitution is that “no person shall be imprisoned for debt, unless . . . there is a strong presumption of fraud.” Thus defendants’ inability to pay and the fact that their failure to pay the amount decreed was not wilful did not present a legal defense to the rule to show cause.

We think, however, that it is pertinent to mention that in the recent case of People v. Lewe, 380 Ill. 531, it was held that the court which committed a contemner in case of civil contempt “has jurisdiction to consider a petition for discharge because of inability to carry out the order of the court” and “to discharge him from custody on showing of inability to comply with the order for the payment of money.” The Supreme Court had not theretofore directly passed upon this question and in stating one of the reasons for the conclusion reached by it in that case said at p. 538: “It may be observed that if this be not true, there is no court and no method by which one incarcerated for contempt of court in such a case could ever hope to obtain his freedom if unable to comply with the order. Such a situation would amount to life imprisonment for debt, which is contrary to the genius of our form of government.”

For the reasons stated herein we are impelled to hold that the trial court erred in ordering that the rule to show cause against defendants be discharged.

The decree of the circuit court of Cook county of February 20, 1942 is reversed and the cause is remanded wfith directions to find defendants guilty of civil contempt of said court.

Decree reversed and cause remanded with directions.

Friend and Scanlan, JJ., concur.


text:
    Helena McKeown, Appellee, v. City of Chicago, Appellant.
    Gen. No. 42,555.
    Opinion filed June 16, 1943.

      Barnet Hodes, Corporation Counsel, for appellant; J. Herzl Segal and Barnet Fagen, Assistant Corporation Counsel, of counsel.
    Edgar A. Jonas and Frederick C. Jonas, both of Chicago, for appellee.
   Mr. Presiding Justice Sullivan

delivered the opinion of the court.

This action was brought by plaintiff, Helena MeKeown, against defendant, City of Chicago, to recover damages for personal injuries alleged to have been sustained by her by reason of the city’s negligence. The jury returned a verdict finding the defendant guilty and assessing plaintiff’s damages at $1,500. Defendant’s motions for a directed verdict, for judgment notwithstanding the verdict and for a new trial having been overruled, judgment was entered on the verdict. Defendant appeals.

On the evening of January 2, 1940 Mrs. Matson, the wife of the owner of the building in which plaintiff lived, gave permission to members of the Fire Department of the City of Chicago to run a line of hose through the passageway that extended alongside said building and from the front sidewalk to the alley in the rear of the Matson lot, for the purpose of flooding a vacant lot across said alley for ice skating purposes. In the process of flooding said vacant lot the firemen used a defective hose and water leaked therefrom onto the concrete sidewalk near the garage at the rear of the lot. The temperature was around zero at the time and the water that leaked from the hose froze quickly. For some time prior to the evening of J anuary 2, 1940 there had been no ice or snow on the ground. The temperature continued around zero for the next two days, January 3 and January 4, 1940, and there was a light fall of snow during the night of J anuary 3, 1940, which covered the ice on the sidewalk in question. The Matson family lived on the first floor of their building and plaintiff and her family resided-on. the second floor. Plaintiff, who had not used the concrete walk .to the alley since the hose had been on the premises, proceeded to walk over said sidewalk on her way to and through the alley to do some shopping about 9 a. m. January 4, 1940. As heretofore stated thpre had been a light fall of snow the night before which covered the ice and, when plaintiff stepped on the ice, she slipped and fell and received the injuries complained of. Matson, the owner of the premises was also made a defendant but the case was dismissed as to him during the course of the trial.

Defendant’s theory as stated in its brief is that “in flooding a vacant lot for ice-skating purposes it was performing a governmental function and therefore was not liable for damages caused by the negligence of its servants and that in any event the defendant is not liable for injuries sustained on private property where the owner had failed to remove the unsafe condition having notice of same.”

Plaintiff’s theory is that “the defendant was not engaged in a governmental function in the flooding of a vacant lot, but in so doing it was acting in a purely ministerial and proprietary manner”; that “the act of the defendant in going upon the property of the defendant Matson and causing a dangerous condition thereon, whereby plaintiff was injured, was the proximate cause of plaintiff’s injury for which defendant is liable”; that “defendant created a nuisance in allowing the water to escape from a leaky hose laid across the Matson property, and that it is liable to the same extent that a private corporation or individual would be for damages to any person suffering a special injury”; and that “it is no defense for the defendant to claim that the codefendant Matson should be liable where a dangerous condition was created by the affirmative act of the defendant, City of Chicago.”

In view of the nature of the points urged by defendant for reversal of the judgment, it must be assumed that plaintiff was free from contributory negligence and that the city and its servants were guilty of the negligence charged.

Defendant first contends that “a municipal corporation is not liable, as a matter of law, for the negligence of its servants in the discharge of their duties in providing free ice-skating privileges through flooding vacant lots pursuant to ordinance, such acts being purely governmental functions performed solely for the public health and benefit.” Immediately following the recital of this contention this' statement is found in defendant’s brief:

“The flooding of the vacant lot by the fire department was done under an order issued by the Mayor of the City of Chicago by virtue of the following ordinance:

“Chap. 185, Par. 15 (1939), Municipal Code of Chicago—

‘ ‘ The mayor is duly authorized and empowered, from time to time, as he in his discretion may see fit, to permit the use of water from the city hydrants, free of charge, for the purpose of flooding vacant property, subject to the consent of the owner or owners of such property, where it may be desired to use such property when so flooded for the purpose of skating; provided, that no charge shall be made to any person for the privilege of skating on property so flooded.”

There is nothing complicated or ambiguous about this ordinance and we are unable to find any provision or language therein which either expressly or impliedly authorized the mayor to order, direct or permit any official or employee of the city to provide in the city’s behalf recreational facilities in the form of ice skating on vacant property not owned by the city. The ordinance merely authorized the mayor in his discretion to permit the use of water 'from city hydrants, without charge, by persons who applied for such use for the purpose of flooding vacant property for ice skating purposes, if they secured the consent of the owner or owners of such vacant property and if they made no charge for the privilege of skating thereon. The very language of the ordinance excludes even an inference that the city contemplated engaging in any governmental function thereunder. If it was intended by this ordinance that the city itself should establish and operate ice skating facilities on private property, there would have been no occasion or necessity for issuing permits to private citizens entitling them to have the vacant property flooded. Neither would there have been any occasion for requiring the applicants for such permits to secure the consent of the owners of said property or for prohibiting those to whom permits were issued from charging for the privilege of ice skating. In the instant case the permit for the use of water from city hydrants was granted by the mayor to a private citizen, one Morgan McNamara, presumably upon his proper application therefor, a copy of said permit or order was forwarded by the mayor to the fire commissioner, who transmitted same to the battalion chief in whose district the vacant lot in question was located, and city firemen were assigned by the battalion chief to flood the lot. It is not contended that while the members of the fire department were flooding this lot they were performing any of their regular duties as city firemen.

This statement is found in defendant’s brief:

“In this case the city undertook to provide a means for the general public, without limitation, to enjoy the benefits of a skating pond close to the neighborhoods where no such facilities existed before. , The situation clearly falls in the analogous classifications relating to parks, playgrounds, swimming pools, wading beaches, beaches, and the like, where it has been held that the creation and operation of such facilities are governmental functions and not proprietary.”

There might be some force to this argument if the situation here were at all analogous to any of the classifications mentioned. But it is not. The cases cited by defendant in support of its foregoing statement, and it would serve no useful purpose to discuss them, concerned public swimming pools, parks and frozen ponds in parks that were used for ice skating. The elements of creation and operation of a recreational facility by a municipality were present in each case cited. Not so here. It is not even claimed that the city operated and maintained the ice skating facility involved herein. What is the fact as to who planned, created and established it? Certainly not the city. All that the city claims to have done was to supply the water. It is a matter of common knowledge that it requires more than the mere pouring of water into a vacant lot to create a facility for ice skating. If the water were poured into the vacant lot without previous preparation for its reception and retention its flow would be uncontrolled and it would only mean time, effort and water wasted. Since the firemen succeeded in the instant case in flooding the vacant property or so much thereof as the skating facility was to occupy, it is reasonable to infer that a basin had been previously formed by erecting a ridge of earth or some other material around that portion of the lot that was to receive the water intended to be frozen. Thus it was the person to whom the permit was issued or somebody in his behalf who actually established what was to serve as an ice skating facility, and the city merely supplied the water to fill the basin. It is of course true that the ice skating facility could not have been completed without water but it is also true that McNamara received from the mayor the order for the use of the water and pursuant to such order the city firemen supplied it.

The sole basis for defendant’s contention that its servants were performing a governmental function in their use of the hose is that they were flooding and did flood the vacant lot which was to be used as an ice skating facility. It is stressed that the city flooded this lot for- the use of the general public. While the public ultimately had the use of the water, when frozen, for ice (skating, the fact remains that the city did not supply the water oh its own initiative or on its own account to create and operate an ice skating facility. Under the terms of the foregoing ordinance and under the order issued by the mayor as authorized by that ordinance, the city supplied the water to McNamara who made the application for the use of same, to flood a basin constructed by him or under his direction in the vacant lot to be used as an ice skating facility when the water froze sufficiently. We hold that' the furnishing of the water was merely an incident to the grant of the use of the water from “city hydrants . . . free of charge, ” and that in any event, since the water was furnished to a private citizen to enable him to establish an ice skating facility, it could not possibly be said that the city firemen who operated the hose were engaged in the performance of a governmental function.

It is next contended that ‘ ‘ The defendant, a municipal corporation, is not liable1 for injuries to a tenant caused by slipping on ice formed in a private passageway where the landlord had notice of the operations of the city’s servants and the effect of their acts.”

Pertaining to this contention it is stated in defendant’s brief that “the only basis upon which liability ■can be urged is that the city owes a duty to keep private walks in a reasonably safe condition.” Plaintiff urges no such theory of liability upon the part of the city. What plaintiff does assert is that the city having requested and been granted the use of the Matson premises it was its duty to exercise reasonable care in its use of such premises so as not to injure persons lawfully thereon and that it was bound to leave the premises in a reasonably safe condition after using same. The employees of the city were guilty of affirmative negligent conduct in knowingly permitting water to leak from the defective hose onto the concrete sidewalk on Matson’s lot where it was bound to freeze almost instantly under the existing weather conditions. The city therefore created an unsafe and dangerous condition which might well result in injury to persons rightfully upon the premises unless it was removed. Since the city’s failure to remove the dangerous condition created by the affirmative negligent conduct of its servants and since said condition was the proximate cause of the injury to plaintiff, who was free from contributory negligence and rightfully upon the premises, we fail to see how the defendant can escape liability. There is no merit in the claim of the city that it was the sole duty of the owner of the premises, who had notice of the dangerous condition, to remove same. It is sufficient answer to this contention to state that the city may not avoid its liability simply because the owner of the property may also have been liable.

Everyone, including municipalities, is bound to exercise due care in the performance of an affirmative course of conduct. In Bedtke v. City of Chicago, 240 Ill. App. 493, quoting from the Harvard Law School Eeview, the court said at p. 502:

“ ‘Injuries caused by negligence of municipal employees are proper items of expense to be borne by the community. For omission to perform' public duties running to the community as a whole there should of course be no municipal liability to private individuals. But in the undertaking of an affirmative course of conduct it is immaterial that the duty being performed is a public one from which the municipality derives no profit. Liability should be based upon the exaction of the law that everyone, in the performance of an affirmative course of conduct, must at his peril measure up to a standard of due care.’ 34 Harv. Law Rev. p. 66.”

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

Affirmed.

Friend and Scanlan, JJ., concur.