author: Mr. Presiding Justice Friend

text:
    Blanche Plotkin, Minor, by Philip Plotkin, Her Next Friend, Appellant, v. Joseph Winkler and Jack Winkler, Individually and Trading as Joseph Winkler and Company, and Continental Illinois National Bank and Trust Company of Chicago, Appellees.
    Gen. No. 42,567.

      Opinion filed May 23, 1944.
    Arvid E. Anderson, of Chicago, for appellant; Arthur A. Wolfinsohn, of Chicago, of counsel.

      Ross, Berchem & Schwantes, of Chicago, for appellees.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

Plaintiff, a minor, was injured as the result of a fall through an inadequately protected air shaft extending downward four stories from the flat gravel roof of a large apartment building where she resided with her parents. She brought suit by her next friend to recover damages against the Continental Illinois National Bank and Trust Company and Joseph and Jack Winkler, individually and doing business as Joseph Winkler. & Company, who had leased the building from the bank and were operating the property when the accident occurred. At the close of plaintiff’s case the court directed a verdict in favor of the bank and at the close of all the evidence a verdict was directed in favor of the Winklers. Plaintiff appeals from the judgments entered on the verdicts and the court’s denial of her motion for a new trial.

It appears that in 1938 plaintiff’s parents became tenants on the first floor of a large “L” shaped apartment building, consisting of more than 60 units, located at Elm and Clark streets, Chicago, which was four stories high on the Clark street side and three and one-half stories high along Elm street. From the third floor porches, the roof of the Elm street section was easily accessible by climbing over a low railing about three feet high. A ladder which had been stationed on the Elm street roof for more than a year before the accident, led to the Clark street roof, a climb of some eight feet.

The accident occurred June 9, 1940. Plaintiff was then about nine years of age. For more than a year before the accident she had gone up on the Clark street roof with other children, as frequently as two or three times a week, where they played games such as tag, hide-and-go-seek, and stoop tag. At times there were as many as four or five children on the roof at one time. In addition to playing games, plaintiff and her companions hollered through the air shaft to hear a resulting echo. The air shaft was covered by rotted unnailed board's laid across 2 x 4’s, which, according to the photographs introduced in evidence, were widely spaced and inadequate protection against danger.

On the day of the accident plaintiff was playing near the air shaft on the roof with two of her friends, Virginia Kuhns and Charlotte Bennett. She had one hand on Charlotte’s shoulder and the other on the boards covering the air shaft, when she fell through the boards to the ground floor, sustaining fractures of both legs and other injuries. There is evidence that the children in the building and neighborhood never played in the courtyard of the building because cars were always parked there, but played either on the roof of the building or on the sidewalk. Raymond Bruce, a tenant on the premises, testified that he had been on the roof 10 or 12 times and had' always seen children playing there. His son George, aged 13, testified that he had been on the roof about 50 times and, together with other boys and girls, played games up there. Several other witnesses stated that they saw and heard children playing on the roof. The air shaft was visible from the windows of the apartments that opened into it and from the porches of the two buildings.

The Winklers had leased the building from the bank in 1937, some three years prior to the accident, and Jack Winkler testified that he never saw any children on the roof or knew that the children had been playing there. Jack Keller, the janitor in charge of the building, offered testimony to the same effect, but it appears he had previously made a statement to an investigator asserting that he had been on the roof, had seen children playing there and that he had not said anything to them. Upon trial plaintiff sought to introduce this written statement in evidence for the purpose of impeaching Keller and to show that as Winklers ’ agent he had actual notice of the fact that children had been in the habit of playing on the Clark street roof. The court excluded the statement on the ground that Keller could not read or write, that the statement was not in his handwriting, and therefore inadmissible. It appears from the record that upon cross-examination Keller identified the statement and admitted that he had signed it and that it had been read to him, but he insisted that he had told the investigator the facts to which he testified and not those contained in the statement. Defendants argue that in order to make the statement admissible, plaintiff should have called the investigator, who supposedly heard Keller when the statement was prepared. No authority is cited for this contention. Moreover, the record' indicates that plaintiff. was not given an opportunity to call the investigator as a witness. The court refused to admit the statement in evidence and immediately thereafter proceeded to instruct the jury to return a verdict in favor of defendants. In Edmunds Mfg. Co. v. McFarland, 118 Ill. App. 256, a written statement containing admissions material to the cause, admitted by plaintiff to have been signed by him, was offered by way of impeachment and refused. This was held to be reversible error. The court held that the admittedly genuine signature appearing at the bottom of the statement was sufficient to make it competent, citing Webster Mfg. Co. v. Schmidt, 77 Ill. App. 49, Hanlon v. Ehrich, 80 App. Div. 359, 80 N. Y. Supp. 692, and Illinois Cent. R. Co. v. Wade, 206 Ill. 523, and said: “The competency of the evidence is too well settled to admit of doubt, or citation of authorities in support of it. It would seem that the court must have confused, as counsel do, the question of its competency, with its probative force and value, two very distinct questions. The question of its competency was for the court, and its value as evidence was for the jury to decide. However that may be, it is familiar law that the statement should have been received in evidence, and its exclusion was reversible error.” In Chicago City R. Co. v. Mauger, 128 Ill. App. 512, the court followed the same rule with respect to the admissibility of an impeaching statement, “ ‘not as substantive proof of the truth of such statements, hut as tending to discredit the witnesses.’ ” (Illinois Cent. R. Co. v. Wade, 206 Ill. 523.) Inasmuch as the cause will probably have to be retried for the reasons hereinafter indicated, we consider it necessary to make an advisory ruling as to the competency of the statement upon retrial.

The paramount questions presented are whether the court was warranted in holding, as a matter of law, that the facts adduced upon hearing did not properly fall within the doctrine of attractive nuisance, and whether there was sufficient evidence to require the .questions of negligence and of attractive nuisance to be submitted to the jury. In directing a verdict for defendants, the court expressed the view that an attractive nuisance “must be something that could he seen from the street, from the public highway or from the sidewalks, so that the children, seeing it — their attention is arrested by it and the curiosity which is natural in all small children is aroused and they go on the property of persons and investigate it and play with it and as a result they are hurt, ’ ’ and also stated as his opinion that the children had no right to play on the roof and were therefore, in a sense, trespassers, and that there was nothing of record to indicate that defendants failed to comply with all existing laws for the safety and maintenance of the premises. It is obvious from the proof adduced that not only adults hut small children could, with apparent ease, step from a railing onto the roof. There were no barricades, warning signs or notices to keep off the roof. The ladder standing there served as an invitation or, as plaintiff’s counsel say, a “challenge” to the children to use the premises, and there was considerable evidence that plaintiff and her playmates frequented the roof for the sole purpose of playing thereon. Under the greater weight of authority in this state, it is primarily a question for the jury to determine whether or not such premises are attractive to children. In Flis v. City of Chicago, 247 Ill. App. 128, we held that “Unless the facts . . . are such that all reasonable minds would draw therefrom no other inference than that the tar kettle and the manner in which it was used did not constitute an attractive nuisance, the question became one of fact for the jury to determine,” citing numerous cases. We adhered to that rule in the recent case of Collins v. City of Chicago, 321 Ill. App. 73. Nor is it always necessary, in order to create an attractive nuisance, that it should be visible from the street. Cicero State Bank v. Dolese & Shepard Co., 298 Ill. App. 290, citing Ramsay v. Tuthill Building Material Co., 295 Ill. 395.

Defendants cite several cases in support of the contention that the court was warranted in determining the question whether an attractive nuisance and negligence existed, without submitting those questions to the jury. One of the decisions relied upon is Burns v. City of Chicago, 338 Ill. 89, where a boy, for the purpose of winning a wager, climbed an electric light pole and was killed by an electric shock. The court in that case held that the evidence concerning the electric light pole did not tend to prove that it was attractive to children, and that the pole was not the proximate cause of the injury because the climbing thereof was induced by a wager made between plaintiff and other boys. In Rodgers v. Beach, 288 Ill. App. 462, also cited by defendants, a ten-year-old boy was overcome by fumes when he climbed into a partially filled tank car through a manhole which had been left unsecured. In that case the complaint was dismissed on motion. No evidence of any kind was presented. Among the grounds for dismissal it was urged that the complaint did not set forth any description or facts showing that the tank car was attractive to children or likely to allure them ; that there was no allegation showing defendant knew, or by the exercise of care should have known, of the dangerous condition in and about the tank car; and that there was no allegation that defendant had anything’ to do with the creation or maintenance of the alleged dangerous condition or caused the same or had knowledge of it. In the case at bar, all these elements were pleaded and denied by defendants, and there was conflicting evidence upon the trial with respect to the various allegations made.

Instrumentalities held to be attractive nuisances are cited and discussed in the following cases, in some of which it was held that the question was primarily one for the determination of the jury: Wolczek v. Public Service Co. of Northern Illinois, 342 Ill. 482; O’Donnell v. City of Chicago, 289 Ill. App. 41; Deming v. City of Chicago, 321 Ill. 341; and Howard v. City of Rockford, 270 Ill. App. 155. Under all the circumstances we are of opinion that the facts in this case, both with respect to whether the roof and its accessibility as affording a playground for children constituted an attractive nuisance, and whether defendants were negligent in failing to properly safeguard the premises, were questions that should have been submitted to the jury.

As to whether the Winklers knew that children used the roof for a playground, the evidence is of course conflicting. Aside from the admissibility of Keller’s statement, the jury should have been permitted to pass upon the question whether defendants knew or should have known that children were using the roof as a place upon which to play as a common practice. There was evidence tending to show that from year to year more children had played thereon. In Oglesby v. Metropolitan West Side Ill. R. Co., 219 Ill. App. 321, it appeared that children’s games were played in a certain building; that one of the neighborhood boys had played there at least 40 or 50 times; and that there was no evidence that the owner had tried to prevent the use of the building for that purpose. As in the case at bar, the court directed a verdict for defendant, which was reversed and remanded on appeal. In passing upon the question the court said: That a child is first attracted upon the premises by another instrumentality than the one inflicting the injury is not decisive of liability. . . . We do not think the fact that the entire interior of the building and the entrance at the north end might not be seen from the street is of controlling importance in viéw of the evidence tending to show that the premises had been used as a place for playing for a long time, from which the jury might conclude the owner had knowledge of this fact, or should have known it.” (Emphasis ours.) In that case the injured child did not reside in. the building, whereas in the case at bar plaintiff’s parents occupied one of the units. There was no playground or other facilities for children residing in the building, and therefore she was not a trespasser as was the plaintiff in the Oglesby case.

With respect to the bank it appears that it was sued in its individual capacity. The evidence conclusively shows that the bank did not own the premises, nor did it operate, manage or maintain it; as trustee it merely leased the building to the Winklers. In the absence of an agreement to the contrary, the lessee or occupant, and not the owner of a building, is responsible for injuries received in consequence of a failure to keep the occupied premises in repair, whether the condition complained of is the result of misfeasance, malfeasance or nonfeasance. It was so held in Marcovitz v. Hergenrether, 302 Ill. 162, wherein numerous cases are cited to support the doctrine. Accordingly we think the court properly instructed the jury to return a verdict in favor of the bank.

As to the Winklers, the judgment entered on the directed verdict is reversed, and the cause is remanded for a new trial.

Affirmed in part, reversed in part and cause remanded for a neto trial.

Scanlan and Sullivan, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Lele H. Wells, Appellant, v. Roe E. Wells, Defendant Below. Thomas J. Courtney, Appellee.
    Gen. No. 42,981.
    Opinion filed May 23, 1944.

      James E. Daniels, Joseph W Grady and Cameron Latter, all of Chicago, for appellant; Ode L. Rankin, of Chicago, of counsel.
    Thomas J. Courtney, State’s Attorney, for appellee; William J. Tuohy, Joseph P. Burke, Francis S. Clamitz and George B. Duggan, Assistant State’s Attorneys, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

On July 20, 1943 plaintiff, Lele H. Wells, filed her complaint for divorce in the superior court, charging cruelty on the part of her husband, Roe E. Wells. Summons issued and was delivered to the sheriff of Cook county for service. Defendant filed his answer July 23, denying the cruelty charged. The matter came on for hearing before Judge John C. Lews July 29,1943, defendant appearing by counsel, and upon the proof adduced before the court, a decree for divorce was entered on the same day.

Subsequently, August 18, 1943, Judge Lews wrote a letter to the State’s Attorney from Minocqua, Wisconsin, stating he had been advised “that perjury had been resorted to in bolstering up the charges” in the Wells case, and “that the parties reside in New York, where several attempts had been made to secure an annulment of this marriage, which were unsuccessful.” August 23, 1943 the State’s Attorney served notice on the attorneys of record, stating that he would appear before Judge Sabath the following day and move the court to vacate the decree entered July 29. No affidavit or petition accompanied the notice, and none was filed in support of the motion at any time. In the absence of Judge Lews on his vacation, an order was entered by Judge Sabath continuing the motion to September 21. When the motion came on for hearing before Judge Lews on the latter date, it was continued to September 28, and at that time plaintiff filed a motion to dismiss and abate the proceeding instituted by the State’s Attorney. A week’s continuance was then granted the State’s Attorney for the preparation of his case. Upon the hearing had October 5, evidence was adduced by the State’s Attorney purporting to prove that neither of the parties resided in Cook county, Illinois, at the time the complaint was filed or prior thereto, and an order was entered vacating the decree of divorce, from which plaintiff has taken an appeal.

Notwithstanding plaintiff’s contention that the State’s Attorney “has no official duty under the law which authorizes any appearance in litigation between third persons and interference with the judgments or decrees of courts in civil litigation, ’ ’ it seems to be a well-settled principle in this State that although a suit for divorce upon its face is a mere controversy between the parties to the record, nevertheless the public occupies the position of a third party, and “it is the duty of the State, in the conservation of the public morals, to guard the relation.” (Johnson v. Johnson, 381 Ill. 362.) In Berlingieri v. Berlingieri, 297 Ill. App. 119, the court defined the public" policy in Illinois with respect to the State’s position in divorce matters as follows: “In a case of this character, where the lack of jurisdiction and the lack of proof is so pronounced, we think it well to consider the public policy of this State with relation to divorce as defined by our Supreme Court. In matters of divorce the State itself is always a party to the suit.” In McGuire v. McGuire, 232 Ill. App. 447, the court was not satisfied with the evidence of residence and denied complainant a decree for divorce. Upon appeal the State’s Attorney filed his brief in support of the court’s ruling. The procedure was approved and the decree affirmed.

Since “it is the duty of the State, in the conservation of the public morals, to guard the [marriage] relation” when a controversy arises between the parties, the State’s Attorney becomes the representative of the State, and in the case at bar it was his duty to intervene after the matter had been called to his attention by the trial judge.

However, the matters of fact which the State’s Attorney sought to present to the court by his motion did not appear of record, and therefore under the prescribed procedure should have been supported by petition or affidavit. Section 174 (7) of the Civil Practice Act (Ill. Rev. Stat. 1943, ch. 110 [Jones Ill. Stats. Ann. 104.050]) provides that the court may, within 30 days after the entry thereof, set aside a judgment or decree upon good cause shown by affidavit, and rule 15, section 7, of the superior court of Cook county provides that ‘ ‘ All motions when founded upon matters of fact not appearing of record in the cause shall be supported by affidavit or affidavits of such matters, a copy of which affidavit or affidavits shall be served with the notice of motion. ’ ’ The State’s Attorney did not comply with either the statute or the rule; the hearing before Judge Lews on the motion to vacate the decree was predicated entirely on an oral motion. Although the State’s Attorney was authorized to intervene, it was incumbent upon him to follow the prescribed procedure the same as any other litigant.

Among other grounds for reversal, plaintiff argues that the evidence introduced by the State’s Attorney failed to show that the parties were not residents of this State, and that the court therefore lacked jurisdiction to hear the cause and vacate the decree of-divorce. Since the matter will probably have to be retried in another proceeding, we refrain from commenting on the evidence.

For the reasons indicated, the order of the superior court is reversed, without prejudice, however, to the right of the State’s Attorney to file a proper petition or affidavit as the basis for further proceedings.

Order reversed, without prejudice.

Scanlah and Sullivah, JJ., concur.


author: Mr. Justice Scanlan

text:
    Frank Arado et al., Appellants, v. Michael Epstein and Joseph Epstein, Trading as Kedzie Plumbing and Heating Company, Appellees.
    Gen. No. 42,856.

      Opinion filed May 23, 1944.
    Julius S. Neale, of Chicago, for appellants ; Walter E. Moss, of Chicago, of counsel.
    Burt A. Crowe, of Chicago, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.

In a tort action there was a trial before the court and a jury, and at the conclusion of plaintiffs’ case the trial court, on motion of defendants, directed the jury to return a verdict finding defendants not guilty. From a judgment entered upon the verdict plaintiffs appeal.

The complaint alleges that Frank Arado and Sam Arado, plaintiffs, were the owners of certain real estate situated in Chicago; that the premises were improved with a one story brick building and basement, which were leased to Sol Greenblatt and J. Dolin, doing business as Three Corner Liquor Store, plaintiffs, who were in possession and control of the premises on December 1, 1941, and that on said date they entered into an oral agreement with defendant Kedzie Plumbing & Heating Company, a corporation, to make certain improvements, alterations and repairs in the basement of said premises and to install a sump pump so that the basement of the premises would be at all times in a dry condition in order that plaintiffs might store their goods, wares and merchandise therein; that on December 17, 1941, defendant corporation, through its agents or servants, was in the exclusive possession and control of the basement of the premises and it then and there became and was the duty of said defendant to make the installation and do the repair work so as not to endanger or injure the premises of plaintiffs; that on said date the defendant, wholly disregarding its duty. as aforesaid, was then and there using a lighted plumber’s furnace or blow torch and other equipment in such a careless, negligent and reckless manner so that the premises of plaintiffs became ignited and said premises were then and there partly destroyed by fire; that all of said plaintiffs were at all times in the exercise of due care and caution for the safety and preservation of said premises, which were in a first class condition before the fire; that as a direct and proximate result of the negligence of said defendant, through its agents or servants, the fire from defendant’s lighted equipment, as aforesaid, ignited said premises and a fire broke out, as a result of which fire the personal property of plaintiffs Sol G-reenblatt and J. Dolin, doing business as Three Corner Liquor Store, consisting of their stock and equipment, was greatly damaged and destroyed, and the building of plaintiffs Frank Arado and Sam Arado was then and there ignited and broke out into fire, and as a result of the fire the building was greatly damaged and destroyed, and all of plaintiffs sustained damages. The complaint then alleges the damages sustained by the various plaintiffs. The material parts of defendants’ answer are: . . (2) These'defendants admit that they entered into an agreement with Sol Greenblatt and J. Dolin to make certain improvements, alterations and repairs in the basement of the premises described in the plaintiff’s complaint. (3) These defendants deny each and every allegation in the plaintiff’s complaint except the allegations herein expressly admitted and say that they were not, nor were either of them, guilty of any of the acts charged by the plaintiffs in their complaint; that the accident and damages, if any, arising therefrom were not caused through any negligence or carelessness on the part of these defendants, their agents or servants; that they did no act nor omitted to do any act which in any way caused the accident and damage complained of. ’ ’

“ ‘A motion to instruct the jury to find for the defendant is in the nature of a demurrer to the evidence, and the rule is that the evidence so demurred to, in its aspect most favorable to the plaintiff, together with all reasonable inferences arising therefrom, must be taken most strongly in favor of the plaintiff. The evidence is not weighed, and all contradictory evidence or explanatory circumstances must be rejected. The question presented on such motion is whether there is any evidence fairly tending to prove the plaintiff’s declaration. In reviewing the action of the court of which complaint is made we do not weigh the evidence, —we can look only at that which is favorable to appellant. Yess v. Yess, 255 Ill. 414; McCune v. Reynolds, 288 id. 188; Lloyd v. Rush, 273 id. 489.’ (Hunter v. Troup, 315 Ill. 293, 296, 297.) ” (Mahan v. Richardson, 284 Ill. App. 493. See, also, Wolever v. Curtiss Candy Co., 293 Ill. App. 586, 597; Cooper v. Safeway Lines, Inc., 304 Ill. App. 302, 312, 313; McCarthy v. Rorrison, 283 Ill. App. 129.)

The premises in question consist of a one story three cornered brick store building with basement, at 2201 South Pulaski road, Chicago. The front of the building is on Pulaski road, one side is on 22d street, and the other side on Ogden avenue. The building is about seventy-five feet long. The only entrance to or exit from the basement was through a 6 x 3 trap door at the back or east part of the building, where it comes to a point. There was a wooden stairway from the basement to the trap door. There were no windows in the basement and the ventilation of the basement was through the trap door and a number of open granite slots about one and one-half inches wide in the bulkhead, about nine or ten feet from the basement floor. The building was owned by Frank and Sam Arado, plaintiffs, and the tenants, Sol Greenblatt and Joseph Dolin, doing business as the Three Corner Liquor Store, plaintiffs, had operated a liquor store in the building since the repeal of the Eighteenth Amendment. They stored their liquors, empty barrels, and wooden cases filled with empty bottles in the basement. There was no heating arrangement in the basement. It was equipped with electric lights and had a cement floor from wall to wall. The floor slanted toward several small holes in it, where the water drained off. The basement was always damp and wet; water seeped in, and in heavy rainstorms water backed up in the basement and it became “smelly.” Three weeks before the fire the tenants employed defendants to install a sump pump and sewer system, at a cost of $425, that would eliminate the water in the basement and prevent flooding. The fire occurred on December 17,1941. Defendants started work a day or two before the fire. On the day before the fire there was no gas in the basement and it was in good shape. When Dolin opened the premises at 8:30 a. m. on December 17, one of the employees of defendants, Israel Turner, was waiting outside with his tools. Dolin warned him to be very careful with cigarets and fire, because there was alcohol in the basement, and Turner answered' that he had been in the plumbing business twenty-five years, knew his business, and did careful work. He then went into the basement and started to work. A second employee of defendants, who was burned to death in the fire, came about nine o’clock and went to work in the basement. Joseph Epstein, one of the defendants, came about 9:45 or 10 o’clock a. m. and went into the basement. No one but Epstein and the two workmen were in the basement. About 11 o’clock, while Dolin was in the front part of the shop waiting on customers, Epstein suddenly jumped out of the trap door from the basement. He was hollering, “Fire,” and fire was coming from the basement. Dolin tried to call the fire department but the fire became so hot that he had to rush from the place. The fire lasted for an hour and a half and the damage to the store and fixtures óf Sol G-reenblatt and Joseph Dolin amounted to $13,532.33, and the loss to the owners of the building amounted to $2,101.60.

A number of contentions are raised by plaintiffs in support of their claim that the court erred in directing a verdict for defendants and in entering judgment upon the verdict, but in our view of this appeal it is only necessary to consider one. Plaintiffs contend that “there was a fire in the basement of plaintiffs’ premises. It occurred while the defendants were in the exclusive possession and control of that basement using their own tools and materials furnished by them, and doing the work necessary to install a sump pump to drain plaintiffs’ basement. The facts relating to the occurrence of the fire were peculiarly within the knowledge of the defendants, and the burden was on them to show that the fire did not occur as a result of any negligence on their part.” This contention, in our judgment, is clearly á meritorious one and the trial court erred in assuming, as he did, that the burden was upon plaintiffs to show that the fire occurred as the result of negligence on the part of defendants. The principle of law stated in plaintiffs’ contention has been the established law of this State since the early case of Great Western R. R. Co. v. Bacon, 30 Ill. 347. The principle is well stated by Mr. Justice Gtoodwiw in Bolger v. City of Chicago, 198 Ill. App. 123, 125 (cert. den. id. xii):

“It is a very ancient and salutary principle of law, that where one has charge or management of a thing in connection with which an accident happens, which in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of proper care; that in case of such an accident the duty of explanation is thrown upon those having charge of the thing, particularly when information concerning the thing itself is within the particular or peculiar knowledge of the defendant.”

To cite a few of the many other Illinois cases in which that principle has been applied: Harper v. Owen H. Fay Livery Co., 177 Ill. App. 138, 140 (affirmed 264 Ill. 459); Fugett v. Murray, 311 Ill. App. 323, 327; Belding v. Belding, 358 Ill. 216, 220; Cope v. Air Associates, Inc., 283 Ill. App. 40, 43, 44 (app. den. id. xiv); Swanson v. S. S. Kresge Co., 302 Ill. App. 455, 466. Defendants seek to evade the effect of that principle of law by contending that it is not applicable in the instant case for the reason that plaintiffs in their complaint charge defendants with specific acts of negligence and therefore it became incumbent upon plaintiffs to prove the acts charged. This contention is an afterthought. The motion to direct a verdict filed by defendants, at the suggestion of the court, and before plaintiffs had closed their proof, merely moved the court “to exclude said evidence, and to instruct the jury to find the defendants not guilty as per the written instruction attached hereto.” Neither in that motion nor in anything stated by the counsel for defendants at the time he presented it to the court was the point now urged made or suggested. Had it been made plaintiffs would have had an opportunity to amend the complaint. By sec. 42 (3) of the Civil Practice Act [Jones Ill. Stats. Ann. 104.042] it is provided that all defects in pleadings, either in form or substance, not objected to in the trial court, shall he deemed to be waived. In Britton v. St. Louis Transfer Co., 155 Ill. App. 317, the plaintiffs relied upon the doctrine of res ipsa loquitur. Upon the appeal to the Appellate Court the defendant contended that the allegations of the complaint were specific and not general, to which contention the court answered (pp. 320, 321):

“It is said in the case in 140 Ill. 495, supra [North Chicago St. Ry. Co. v. Cotton]: ‘Even if it be admitted that the presumption is one of negligence generally, and not of any specific negligence, we think it sufficient to throw upon the defendant the burden of rebutting the specific negligence alleged. ’ In other words the knowledge of the facts being possessed only by the defendant, it must reveal them and show that it is not guilty of the specific negligence charged, or verdict must go against it. Besides in order to avail itself of a variance between the original declaration and the proofs, appellant should have specifically pointed out this variance to the court in its motion for peremptory instructions.” (Italics ours.)

To the same effect is Union Traction Co. v. Newmiller, 215 Ill. 383, 386, 387, where the court said: “If there was a material variance between the declaration and the evidence, (which we are unable to discover,) it was the duty of the appellant to call the attention of the court to it, either by objections to the evidence or a motion to exclude the same when the variance became apparent, or in some other way. Such an objection, when raised as a question of law in this court, must have been presented to the trial court and a ruling upon it which this court can review.”

It is unnecessary to cite the many cases that hold that where a point of pleadings is raised in this court for the first time it will not be considered unless the pleading in question was fatally defective. From anything” that we have said we must not be understood as holding that the complaint is not sufficient to sustain a general charge of negligence. The following rule must also be remembered:

“ ‘It is not necessary in actions ex delicto to prove all the allegations of the declaration. If plaintiff makes out a cause of action by proving the material allegations he is entitled to recover even though there be other averments of the declaration which are not proved. (Postal Telegraph-Cable Co. v. Likes, 225 Ill. 249; Dunham v. Black Diamond Coal Co., 239 id. 457.) ’ (Reivitz v. Chicago Rapid Transit Co., 327 Ill. 207, 209. See, also, Weber Wagon Co. v. Kehl, 139 Ill. 644, 658; Devine v. Delano, 272 Ill. 166; Wood v. Illinois Cent. R. Co., 185 Ill. App. 180, 184; Flis v. City of Chicago, 247 Ill. App. 128.) ” (Kovell v. North Roseland Motor Sales, 275 Ill. App. 566, 581.)

It would be a serious reflection upon the administration of justice if plaintiffs, who suffered large damages through the fire, were denied their day in court through a technicality urged for the first time in this court. There is an affidavit in the record that tends to show that Israel Turner, who was in the basement at the time of the fire and who could have testified as to the cause of the fire, was concealed so that it was not possible for plaintiffs’ attorney to serve a summons upon him.

■ Plaintiffs contend that the trial court committed other errors to their serious prejudice. While there is force in several of the contentions raised we do not deem it necessary to refer specifically to. them, as they are not likely to occur upon another trial of this cause.

The judgment of the circuit court of Cook county is reversed, and the cause is remanded for a new trial.

Judgment reversed, and cause remanded for a new trial.

Friend, P. J., and Sullivan, J., concur.


author: Mr. Justice Sullivan

text:
    Isador B. Leon, Appellee, v. Mutual Benefit Health and Accident Association, Appellant.
    Gen. No. 42,304.
    Opinion filed May 23, 1944.
    Ross, Berchem & Schwantes, of Chicago, for appellant.

      Branko M. Steiner and Bernard H. Sokol, both of Chicago, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.

Plaintiff, Isador B. Leon, brought this action against defendant, Mutual Benefit Health and Accident Association, to recover indemnities under an accident and health insurance policy because of his alleged disability resulting from sickness. The jury returned a verdict finding the issues for defendant. Upon plaintiff’s motion judgment for $322.50 was entered in his favor notwithstanding the verdict. Defendant appeals.

Plaintiff permitted his policy to lapse on June 1, 1940 for nonpayment of premium. p?he policy was re-' instated on July 1, 1940 by the payment on said date of a quarterly premium for the period from July 1, 1940 to October 1, 1940. The provisions of the policy under which plaintiff claims he is entitled to recover are as follows:

“Illness Indemnities Confining Illness Benefits for Life
Part J.
The Association will pay, for one day or more, at the rate of Seventy-five ($75.00) Dollars per month for the first fifteen days and at the rate of One Hundred and Fifty ($150.00) Dollars per month thereafter for disability resulting from disease, the cause of which originates more than thirty days after the effective date of this policy, and which confines the Insured continuously within doors and requires regular visits therein by legally qualified physician; provided said disease necessitates total disability and total loss of time.”

Defendant asserts as one of its defenses to plaintiff’s claim that Standard Provision 3 of the policy precludes recovery by him. This provision is as follows:

“3. If default be made in the payment of the agreed premium for this policy, the subsequent acceptance of the premium by the Association or by any of its duly authorized agents shall reinstate the policy, but only to cover accidental injury thereafter sustained and such sickness as may begin more than ten days after the date of such acceptance ” (Italics ours.)

Section 357 (3C) of the Illinois Insurance Code (par. 969, ch. 73, Ill. Eev. Stat. 1939 [Jones Ill. Stats. Ann. 66.1032]) requires the inclusion of Standard Provision 3 in every health and accident insurance policy issued in this State and the same standard provision is required in health and accident policies issued in practically every State in this country and in Canada.

Defendant urges several grounds for reversal but we only deem it necessary to consider its contention that “plaintiff’s claim was not covered by the policy” because “Standard Provision Three of the policy excluded- coverage of sickness occurring within ten days after reinstatement of the policy” and “the exclusion by Standard Provision Three of ‘ such sickness ’ as begins within ten days following reinstatement of the policy refers to the date that ‘such sickness’ commenced, not to the date of commencement of disability therefrom. ”

Plaintiff insists that his claim is “compensable under the policy” and that “the ten-day period after the word ‘sickness’ used in Standard Provision Three of the defendant’s policy has reference to the kind of compensable sickness provided for under Part . . . J ... of the same policy which necessarily confines the insured continuously within doors and requires regular visits therein by a legally qualified physician.”

Thus the question presented for our determination is whether the stipulation in Standard Provision 3 that the policy shall cover only “such sickness as may begin more than ten days after the date” of its reinstatement means that, even though the disability commenced more than ten days thereafter, it is excluded from coverage if it was caused by sickness that began within ten days after the reinstatement of the policy or that the disability itself must begin within ten days after the reinstatement of the policy to be excluded from coverage.

On September 23, 1940 plaintiff mailed to defendant his application for “Sickness Benefits” on a form of proof of loss furnished by the insurance company. In said proof of. loss plaintiff certified that both his sickness and disability began on July 4, 1940. Dr. Isadore M. Trace, his attending physician, certified that on July 5, 1940 he diagnosed plaintiff’s sickness as inflammation of the gall bladder, for which he commenced to treat him on that date. His employer certified that plaintiff “was disabled from July 3,1940 until September 24, 1940.”

On October 22, 1940 plaintiff’s attorney wrote defendant a letter requesting “the necessary blanks to prepare amended proofs of claim” because “Mr. Leon was mistaken as to certain information which he gave you in the original proofs of claim.” Defendant’s reply thereto stated in effect that plaintiff’s proof of loss in addition to other information at hand clearly demonstrated that his policy excluded coverage for the disability claimed and that “additional proof would be of no value.”

Plaintiff testified that he was 54 years old; that he was a salesman employed by the Banner Coal Company; that on July 4, 1940 he felt “a little pressing” over his chest and decided to see his doctor; that he first saw his physician, Dr. Trace, on July 5, 1940 because he had a pressing pain “under his stomach and chest;” that the doctor “thought it was gall bladder” and gave him medicine on that day and again on July 9, 1940, which relieved his pain; that he saw Dr. Trace several times thereafter until July 19, 1940, when he went to bed; that between July 5, 1940 and July 19, 1940 he continued at his usual work, calling on trade and seeing his customers; that he stayed in bed from July 19, 1940 until the end of July, when he consulted Dr. Carl Meyer, who operated on him for a gall bladder ailment in Grant hospital on August 6,1940; that after he went home from the hospital he stayed in bed for about three weeks; and that he remained at home until September 23,1940, when he resumed his employment.

The only evidence introduced by defendant was plaintiff’s proof of loss heretofore referred to, which showed that both his sickness and his disability had their inception within ten days after the reinstatement of his policy.

In our opinion the meaning of Standard Provision 3 is so clear and unmistakable that it is not open to construction. It states in simple and readily understandable language that the policy shall cover only “such sickness as may begin more than ten days after the date ’ ’ of its reinstatement. While, according to plaintiff’s evidence, his disability commenced more than ten days after the reinstatement of his policy, the sickness that caused it admittedly began less than ten days after his policy was reinstated and therefore it must be held that such resultant disability is excluded from coverage. In so far as we have been able to ascertain no court of review in this state has had occasion heretofore to consider or apply Standard Provision 3 and we think it is fair to assume that the reason its plain meaning has not previously been questioned is that it was so clearly expressed that it was generally understood that the provision meant just what it said.

Clark v. Mutual Benefit Health é Accident Ass’n (La. App.), 146 So. 497, is the only case that plaintiff has cited or been able to find in any jurisdiction in this country that supports his position that his disability, having occurred more than ten days after the reinstatement of his policy, is compensable, even though the sickness which caused it began within such ten-day period. In the Clark case the court determined that it was necessary to consider Standard Provision 3 in connection with Part K of the policy, which was identical with Part J of the policy in the instant case, to arrive at a proper construction of the language “only to cover . ... such sickness as may begin more than ten days after the date” of reinstatement and concluded that “the ten-day period after the word ‘sickness’ used in paragraph 3, has reference to the beginning of the confinement of the kind provided for under Part K, which necessarily confines the insured continuously within doors and requires regular visits therein by a legally qualified physician, and which disease necessitates total disability and total loss of time. ’ ’

The decision in the Clark case is contrary to the decisions of all other courts of review in the State of Louisiana, where Standard Provision 3 has been considered and applied, and it is conceded that said provision has not been similarly construed by a court of review in any other jurisdiction in this country.

Part K of the policy in the Clark case provided, as does Part J in the policy involved herein, that the coverage is “for disability resulting from disease . . . which confines the Insured continuously within doors and requires regular visits therein by a legally qualified physician; provided said disease necessitates total disability and total loss of time. ’ ’ It will be noted that there is a further provision in Part K of the policy in that case and Part J of the policy in this case immediately preceding that above quoted, which restricts the coverage to “disability resulting from disease, the cause of which originates more than thirty days after the effective date of this policy.” We do not think that it could be seriously contended that the condition last above quoted did not exclude coverage for disability, no matter when it occurred, if it was caused by disease which originated within thirty days after the original issuance of the policy. While it is true that said con-' dition applies only to the restriction of coverage for a period of thirty days after the issuance of the policy, it is analogous to the condition in Standard Provision 3, which restricts coverage for a ten-day period after the reinstatement of the policy. We think that coverage is just as clearly restricted by Standard Provision 3 to disability caused by sickness which originates more than ten days after the reinstatement of the policy as it is under Part J to “disability resulting from disease, the cause of which originates more than thirty days” after the original issuance of the policy. The reason for the exclusion of coverage as to disabilities that result from sickness or disease which begins within thirty days after the issuance of a policy or within ten days after the reinstatement of a policy is quite obvious. It is to prevent fraud in the procurement of policies or in the reinstatement thereof by persons who feel the imminency of illness that will in all likelihood result in disability as defined in the policy.

The Clark case was decided by a district court of appeal of Louisiana on March 7, 1933. In Thomas v. First Nat. Life, Health & Accident Ins. Co. (La. App.), 157 So. 409, decided November 14, 1934 by a court of appeal of another district in Louisiana, a health and accident policy was involved that contained the following Standard Provision 3: “ The insured shall not be entitled to sick or accident benefits when premiums are in arrears two Mondays or more and the subsequent payment of such full arrears shall not entitle the assured to benefits for siclmess or accident occurring or existing during the week following such payment of arrears.” It will be noted that the intent and general effect of said provision was identical with Standard Provision 3 of the policy in the case at bar, except that the noncoverage period following the reinstatement was one week instead of ten days. There the court said at p. 410:

“We are given no reason for holding the said provision inoperative. The purpose of such a stipulation is very evident. It is to prevent an insured, who has allowed his policy to become suspended and who may feel that illness is impending, from rushing in to pay his overdue installments, so that, by the immediate reinstatement of the protection of the policy, he may secure the weekly benefits provided for. It is contemplated by the company that an impending illness will not make itself manifest so much as a full week in advance of the time at which disability may result and that, therefore, if payment of arrears is made at least a week before disability commences, any payment made was probably made in good faith and not in contemplation of an already manifested illness.
“Such a stipulation is reasonable, and we find that similar ones have been judicially determined to be enforceable.” (Citing cases.)

In Williams v. Continental Life Ins. Co. of St. Louis, Mo. (La. App.), 149 So. 150, decided on June 15, 1933 by still another district court of appeal of Louisiana, Standard Provision 3 of the policy there in question was identical with that in the instant ease and it constituted the sole defense of the insurance company to the claim of the insured. In that case the court said at p. 150:

“. . . the only question for determination is when plaintiff’s sickness began. The policy lapsed for nonpayment of premium on November 1,1931, and was reinstated on November 7,1931, by the acceptance of the monthly premium by defendant, and, under the above-quoted provision of the policy, defendant was not liable for sick benefits unless the sickness began more than ten days after November 7, 1931. The doctor in his certificate says the sickness began three or four days before November 21,1931. The plaintiff testified in answer to questions propounded by his attorney that his sickness began exactly two weeks before he called in the doctor on November 21, which would make the date of the beginning of his sickness on the very day that he was reinstated. This is the only evidence on this point in the record, and is, we think, binding on the plaintiff, and clearly takes his claim out of the provisions of the policy requiring the payment of sick benefits. His sickness began within less than ten days after the policy was reinstated, and he cannot recover.”

To the same effect are Freedman v. Mutual Benefit Health & Accident Ass’n (Mo.), 119 S. W. (2d) 1017; Business Men’s Accident Ass’n of America v. Arrington (Tex. Civ. App.), 7 S. W. (2d) 157; Taylor v. Latin-American Life & Casualty Ins. Co., 152 La. 740, 94 So. 375; Sincer v. Latin American Ins. Co. (La. App.), 122 So. 909.

Since it clearly appears from plaintiff’s own evidence and the evidence of his attending physician that his sickness began within ten days after the policy was reinstated, he is precluded from recovery under the plain terms of Standard Provision 3 of the policy and defendant’s motion for a directed verdict made at the close of plaintiff’s evidence should have been allowed. However, since its motion for a directed verdict was not allowed either at the close of plaintiff’s evidence or at the close of all the evidence, defendant was entitled to have judgment entered on the jury’s verdict in its favor.

For the reasons stated herein the judgment of the municipal court of Chicago in favor of plaintiff notwithstanding the verdict of the jury is reversed and the cause is remanded with directions to enter judgment on the verdict in favor of defendant.

Judgment reversed and cause remanded with directions.

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


text:
    Grace Johnson, Appellee, v. Stevens Building Catering Company, Appellant.
    Gen. No. 42,872.

      Opinion filed May 23, 1944.
    Lord, Bissell & Kadyk, of Chicago, for appellant ; Fred E. Inbau, of Chicago, of counsel.
    Burt A. Crowe, of Chicago, for appellee.
   Mr. Justice Sullivan

delivered the opinion of the court.

This action ivas brought by plaintiff, Grace Johnson, against Stevens Building Catering Company to recover damages for personal injuries sustained by her while a patron invitee in the cafeteria section of defendant’s restaurant, because of the alleged negligence of defendant in serving hot tea to her in a defective glass decanter, which broke without fault on her part, causing the hot contents thereof to fall into her lap and severely burn her. The jury returned a verdict finding defendant guilty and assessing plaintiff’s damages at $750. Defendant’s motions for a new trial and for judgment notwithstanding the verdict were overruled. Judgment was entered on the verdict. Defendant appeals. No question is raised on the pleadings and it is not claimed that the damages awarded plaintiff are excessive.

Plaintiff testified that she and her friend, Eunice Peterson, went to defendant’s cafeteria for lunch on January 12,1942; that she ordered hot tea and a piece of pie at the serving counter; that the waitress put the piece of pie on a tray and then went toward the rear and out of her sight for the tea; that the waitress returned with a glass decanter filled with hot water with a tea ball suspended therein on a string, put a cork in the decanter and placed the latter with a saucer under it on the tray; that she (plaintiff) carried the tray about 15 feet to a table upon which she set the decanter, cup and saucer and pie, and put the tray on an adjoining table; that she then sat down, took hold of the insulated neck of the decanter with her right hand and was removing the cork therefrom with her left hand, when the decanter “broke to pieces . . . the whole side of the bottle broke” and the hot tea went into her lap and between her legs; and that she did not drop the decanter or permit it to strike or knock against anything while it was in her possession.

Eunice Peterson testified to substantially the same effect as plaintiff, except that she stated that the decanter broke when Mrs. Johnson picked it up to pour the tea.

Gertrude Dickinson testified that she was employed in defendant’s cafeteria to wash the tea and coffee decanters; that she was the only employee assigned to that work and that she washed' and inspected every decanter used on the day in question; and that “I look all over them and see there is nothing broken . . . if they look a little bit nicked I discard them, I throw them away.”

Sophie Kozdron testified that she was the waitress who served plaintiff; and that when Mrs. Johnson ordered hot tea, she reached under the table where the decanters were kept, took one of the bottles to the sink, rinsed it with hot water, put the tea bag in and then the hot water, put the decanter on a saucer, put in the cork and brought it to the tray. She further testified on direct examination as follows: “ Q. Did you look at that bottle before you served it? A. I did. Q. Did you notice anything about it— A. I didn’t notice the bottle was cracked. Q. It was not cracked? A. No. Q. And you looked at it before and after you put the tea in? A. You looked before — you reach for the bottle, you look at it, then you go and rinse it out. Q. And' you didn’t see any cracks in it? A. I didn’t notice the bottle was cracked.”

Vincent Tracy, who operated and managed defendant’s cafeteria, testified that he saw the decanter in which the hot tea was served to plaintiff after it had broken; that the bottom part of it “was off . . . the bottle was in maybe half a dozen pieces ... I threw it away because I thought that was just another broken bottle; ’ ’ that the Pyrex glass decanter involved herein was a standard product manufactured by the Corning Glass Company; that defendant had used decanters of that type for over 10 years, purchasing them from Canterbury Studios; and that they were “breakable.”

Vincent Tracy and Arthur Van Cleve, who was a director of defendant company and had formerly owned Canterbury Studios, which had furnished the Pyrex decanters to defendant, both testified that the decanters possessed very high heat resisting qualities and that they had conducted experiments which showed that the decanters could be subjected to rapid changes of temperature “from very hot to very cold and from very cold to very hot” without the occurrence of any breakage. Van Cleve also testified that he had experimented by pouring hot liquids into decanters, which had been cracked, and that they broke “immediately” or within “less than a minute.” Van Cleve was asked the following question on cross-examination and he made the following answer: “Mr. Van Cleve, I would like to ask you if a bottle, glass bottle, say one of these Pyrex bottles, is filled with hot liquid, very hot, and there is no crack or defect in the bottle and it breaks, would you say it was a defective bottle? A. No, I would say it was an act of God.”

Defendant first contends that “the doctrine of res ipsa loquitur, upon which the plaintiff rested her case, has no application to the facts and circumstances surrounding the involved occurrence for the reason that the instrumentality which is alleged to have caused plaintiff’s injuries was not in the control, possession or management of the defendant or any of its agents at the time of the occurrence..” The material question presented by this contention is whether defendant had divested itself of its control and management of the decanter merely because it had turned over the possession thereof to plaintiff momentarily, so that she might carry it to a table and pour the tea therefrom into her cup. The decanter was owned by defendant and used in the operation of its business. So long as it adopted this method of serving hot tea, it was its duty to furnish decanters to its patrons that were reasonably safe and sufficient for the purpose for which it used them. Can it be said that because plaintiff had the decanter in her possession for a minute or two from the time the waitress placed it on her tray until it broke on the table, such momentary possession charged her either wholly or partially with its control and management? We think not. We fail to perceive how defendant is in any different position as to its exclusive control and management of the decanter under the circumstances shown here than it would have been if one of its waitresses had placed the decanter on the table and it broke without plaintiff having touched it. It is not asserted by defendant that plaintiff’s fleeting possession of the decanter imposed any duty on her to inspect it for defects but it is suggested that she might possibly have dropped it or struck it against something and thereby caused it to crack and break. There is no evidence in the record to support this suggestion. In our opinion defendant had the exclusive control and management of the instrumentality that caused plaintiff’s injuries and therefore the doctrine of res ipsa loquitur is applicable to the occurrence involved' herein.

Defendant next contends that “the doctrine of res ipsa loquitur has no application to the facts and circumstances surrounding the involved occurrence for the reason that the doctrine gives rise only to a presumption, which presumption, even if otherwise applicable to the present case, was rebutted and nullified by evidence introduced on behalf of the defendant.”

In Bolger v. City of Chicago, 198 Ill. App. 123, the doctrine of res ipsa loquitur is defined as follows at p. 125:

“It is a very ancient and salutary principle of law, that where one has charge or management of a thing in connection with which an accident happens, which in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence .of explanation by the defendant, that the accident arose from a want of proper care; that in case of such an accident the duty of explanation is thrown upon those having charge of the thing, particularly when information concerning the thing itself is within the particular or peculiar knowledge of the defendant.”

The doctrine is based on the consideration that the injury itself and the circumstances attending it are sufficient to justify the inference of negligence. In other words the “res” includes the injury, the instrumentality which caused it and the attending circumstances and the application of the rule presents principally the sufficiency of circumstantial evidence to justify the inference of negligence. The doctrine is also based on the further consideration that where the control of the thing which has caused the injury is exclusively in the defendant it is within his power to produce evidence of the actual cause, which the plaintiff is unable to present.

Plaintiff’s injury and the circumstances attending it afforded reasonable evidence to justify the inference of defendant’s negligence and therefore made ont a prima facie case, which was of course rebuttable, as is a prima facie case made out by a plaintiff in any law suit. Since the evidence introduced by plaintiff' necessitated the presentation of a defense, it was incumbent upon defendant to furnish an explanation of the occurrence consistent with due care on its part, if it could. Plaintiff’s prima facie case and defendant’s evidence presented by way of explanation of its due care were properly submitted to the jury.

While it has been said in some Illinois cases that the presumption of negligence raised by the application of the doctrine of res ipsa loquitur is not absolute or conclusive but is rebuttable and vanishes entirely when' any evidence appears to the contrary, it seems to us that where the doctrine is applicable the use of the term “presumption of negligence” is an inapt and unfortunate characterization of the prima facie case made out by the fact of the injury itself and the circumstances attending it. Of course such a prima facie case is neither absolute nor conclusive but to say that it “vanishes entirely when any evidence appears to the contrary” is equivalent to holding that, regardless of how flimsy the explanation offered by a defendant may be as to its exercise of due care in connection with the instrumentality that caused the injury and regardless of the incredibility and improbability of the explanation, such explanation must be accepted as true. If that were the correct rule a plaintiff could never recover under the principle of res ipsa loquitur, if a defendant offered any evidence by way of explanation of due care on his part, no matter how incredible and improbable such evidence might be. A prima facie case cannot vanish but must be submitted to the jury together with the evidence presented by the defendant. It is the province of the jury to determine as a question of fact whether the evidence introduced by a defendant in explanation of the occurrence' is consistent with due care on Ms part and to also determine the credibility and probability of such evidence.

It is further contended that the verdict was against the manifest weight of the evidence. The evidence clearly shows that plaintiff was free from contributory negligence and that the decanter broke without fault on her part. The jury was warranted in so finding, whether the decanter broke while plaintiff was taking out the cork, as she testified, or whether it broke when plaintiff was about to pour the tea therefrom, as Mrs. Peterson stated. It was defendant’s duty to exercise reasonable care in respect to the condition of the decanter and its inspection. The breaking of the decanter, which injured plaintiff, was circumstantial evidence of a lack of preoccurrence inspective care of a utensil which defendant invited her to use or of the negligent inspection thereof.

Two witnesses testified in defendant’s behalf as to their inspection of the decanter. Gertrude DicMnson washed all the tea and coffee decanters used in defendant’s busy cafeteria. While she testified that “I look all over them and see there is nothing broken,” it was for the jury to determine whether from the very nature and extent of her work and the manner of her inspection it was probable that she may have overlooked a crack in the decanter in question. As heretofore shown, when the waitress Sophie Kozdron was being-interrogated by defendant’s counsel, she merely stated in reference to the decanter she served plaintiff, “I didn’t notice the bottle was cracked.” In her answer to the leading question, “It was not cracked?”, she said “No.” Finally she was asked, “And you didn’t see any cracks in it?” and she again answered “I didn’t notice the bottle was cracked.” It is quite apparent from her testimony that she did not inspect the decanter at all for defects. She merely stated that she did not notice it ‘ ‘ was cracked. ’ ’ According to defendant’s witnesses it was not unusual for the decanters to break, crack and get “nicked.” Gertrude Dickinson stated that “if they look a little bit nicked ... I throw them away” and Vincent Tracy, defendant’s manager, testified that he threw away the decanter which had been served to plaintiff “because I thought it was just another broken bottle. ’ ’ Arthur Van Cleve, who sold the Pyrex decanters to defendant company and who was one of its directors, testified that tests theretofore made by him demonstrated that a decanter, which had a crack in it, would break immediately or within a minute after it was filled with hot water. The jurors might well have believed that if some of the cracked decanters tested did not break for nearly a minute after they were filled with hot water, others containing a smaller or different kind of crack might not break until a few minutes had elapsed. Van Cleve also testified that if the decanter was not cracked, it must have been “an act of God” that caused it to break. The jurors knew that the breaking of the decanter was not attributable to “an act of God” and this statement by Van Cleve tended to weaken his entire testimony.

The jurors saw the witnesses and heard them testify and were afforded a much better opportunity than we to determine their credibility and the probability or improbability of their testimony. We are impelled to hold that the verdict was not against the manifest weight of the evidence and are therefore not warranted in disturbing it.

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

Judgment affirmed.

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


author: Mr. Presiding Justice Dady

text:
    Ruth Berg, Conservator of Estate of William Berg, Incompetent, Appellee, v. New York Central Railroad Company, Appellant.
    Gen. No. 9,415.

      Opinion filed May 24, 1944.
    Henry I. Green and Oris Barth, both of Urbana, for appellant.
    C. E. Tate and E. G. Mathis, both of Champaign, for appellee.
   Mr. Presiding Justice Dady

delivered the opinion of' the court.

This is a personal injury suit brought by the conservator of William Berg, an incompetent person, against the defendant appellant, for injuries received by Berg as a result of a collision between a passenger train of defendant and an automobile in which Berg was riding as a passenger. There was a verdict and judgment against defendant. Defendant appeals.

After the return of the verdict, the defendant moved for judgment for defendant notwithstanding the verdict, and, in the alternative, that a new trial be ordered.

The trial judge, at the time of the entry of judgment, filed and delivered a written opinion which, so far as material, stated: “. . . So far, only the motion for judgment notwithstanding the verdict has been argued, and that is the motion which will now be passed upon. . . . the motion of the defendant for judgment notwithstanding the verdict will be denied. No argument has been made ... on the motion for new trial, and if the defendant’s counsel desire to be heard upon that motion, the court will be glad to hear and consider such argument.” The attorney for the defendant then stated: “. . . we don’t care to argue the motion for new trial, . . . and we do not care to be heard on the motion for new trial.” The trial judge then said: “All right, enter the following orders: — Defendant’s motion for judgment notwithstanding verdict overruled. Motion for new trial overruled. Judgment on verdict in favor of the plaintiff and against the defendant . . .

In Helton v. Thomson, 311 Ill. App. 354, 366, the court said: “The current rule undoubtedly is that a motion for a new trial may be so waived by abandonment in the court below as properly to foreclose the Appellate Court from examining the propositions on which it is based, but each case rests upon the particular circumstances indicating whether or not a waiver may be presumed. ... If the trial judge had desired an oral argument, and so indicated, defendant’s counsel would undoubtedly have been called upon to comply with the court’s request, or if he had refused to do so the court might have construed the refusal as an abandonment of the motion.” (See also Calumet Furniture Co. v. Reinhold, 51 Ill. App. 323; Firemen’s Ins. Co. v. Horton, 68 Ill. App. 497; Eckels v. Hawkinson, 138 Ill. App. 627.)

From such authorities it is our opinion that the defendant is not in a position to complain of the denial of the motion for a new trial.

The only other contention of the defendant is that its motion for judgment notwithstanding the verdict should have been allowed on four grounds, vis: (1) that the uncontradicted evidence established that Berg, and Graves who was driving the automobile, were engaged in a joint enterprise, both were negligent and the negligence of either was the negligence of the other; (2) that there is no evidence tending to prove that Berg was in the exercise of due care for his own safety either at or prior to the time of the collision; (3) that there is no evidence showing or tending to show the defendant guilty of negligence as charged; (4) and that the proximate cause of the accident was the icy condition of Third Street and the automobile skidding thereon.

In passing on a motion for judgment notwithstanding -the verdict the rules applicable on a motion for a directed verdict should be applied. The evidence must be considered in its aspect most favorable to the plaintiff, together with all reasonable inferences to be drawn therefrom, and the court is required to assume .that the evidence favorable to the plaintiff is true. The evidence must not be weighed and all contradictory or explanatory circumstances must be rejected. The only inquiry is whether there is any evidence fairly tending to prove the plaintiff’s complaint. If there is any evidence fairly tending to prove the complaint, the motion must be denied, even though the court is of the opinion that a verdict for the plaintiff, if given, must be set aside as against the preponderance of the evidence. (Synwolt v. Klank, 296 Ill. App. 79; Hunter v. Troup, 315 Ill. 293; Osborn v. Leuffgen, 312 Ill. App. 251.)

Following such rules of law, we will discuss and consider only the undisputed evidence and the evidence favorable to the plaintiff.

On February 11, 1942, William Berg, Murray Williams, and Earl Fancher and wife, at the invitation of Ernest Graves, rode from St. Joseph to Urbana in an automobile owned and driven by Graves. In Urbana they were joined by Don Gaylord. The five men lived in or near St. Joseph and went to Urbana to participate in a bowling contest with other teams. They bowled from about 9:00 p. m. to about 11:30 p. m. Berg, Williams and Fancher and wife were then driven back to St. Joseph by Graves, in the Graves automobile, Berg sitting on the back seat. On returning to St. Joseph, Fancher and wife were the first to get out of the Graves car. Graves then drove Williams to the latter’s home. Thereupon, and while Berg was still sitting alone on such rear seat, Graves drove south on Third Street and onto the railroad crossing, for the purpose of taking Berg to Berg’s home. The passenger train of the defendant, traveling about 60 miles per hour in an easterly direction on the southerly or main line track, then struck the automobile on the rear right hand side, causing the injuries complained of. The accident occurred about 12:18 a.° m. Both Graves and Berg lived in the neighborhood of and were familiar with the crossing.

At and near the place of the accident the railroad tracks ran east and west, and across Third Street at right angles. There were two sets of parallel tracks, a few feet apart, the southerly set being the main line track, and the northerly set being a side or passing track. The only crossing warning signals were two stationary “cross-buck” signs, one at the northwest corner of the crossing, and one at the southwest corner.

A poultry house was located 63 feet west of the center of Third Street and 104 feet north of the north rail of the main track, the base dimensions of which were 26 x 24 feet. Westerly of Third Street there was located the foundation and walls of a burned elevator, which structure was about 18 feet north of the north rail of the main track. Its base dimensions were 32 x 36 feet, and its height about 9 or 10 feet. The reply brief of the defendant states that: “the plat and photographs show that the first clear view they (Berg and Graves) had for any distance to the west was as they passed the poultry house going south at a point at least 100 feet north of the main track.”

George Rutledge testified that on February 10th weeds as high as from 12 to 14 feet were growing on the westerly side of the crossing. Mrs. Rutledge testified without objection that “as you came from the north to the crossing it was practically impossible to see clearly until you were almost upon the tracks,” because of the weeds which were thick and from 6 to 7 feet high, and that the concrete foundation also obstructed the view. William Besore testified that on February 11th there were weeds on the right of way, on the westerly side of the crossing, about shoulder high, and that one would have to get within 10 feet of the track before he could see down the track. Mrs. Besore testified that she saw the weeds after the accident and they were shoulder high.

George Rutledge testified that he lived about 50 feet south of the crossing; that on the night of the accident after he had been in bed about ten minutes he heard the rumble of the train and the crash of the collision, but heard no whistle or bell although he said he was in a position to have heard one. Mrs. Rutledge testified that she had just gone upstairs when she heard the rumble of the train and the crash, but heard no whistle or bell, although she said she was in a position to have heard one.

William Berg was unable to testify because of a mental condition resulting from the injuries which he received in the accident.

Ernest Graves was in the military service at the time of the trial. By agreement there was read in evidence a statement made by Graves on February 14, 1942, to a claim agent of the defendant.

The statement of Graves was in substance as follows : That after all except Berg had left the automobile, Graves, in talcing Berg to the latter’s home, drove south on Third Street, with Berg sitting alone in the rear seat; as he approached the crossing his view to his right or westerly was obstructed by the poultry house; he had just passed the poultry house when “we saw the train” coming at exactly the same time, and Berg said “here she comes,” or “there’s a train”; he at once applied his brakes but the road was slick with ice and the automobile kept sliding on; that he tried to turn to the west to keep out of the way of the train but the car kept sliding; at that time, as near as he could see, the front wheels of his car were about on the side track north of the main track and the train was a few feet away; he then “gunned” his car, and tried to clear the crossing, but the train hit his automobile at about the rear wheels; it was not snowing, but there was snow on the ground and on the roads, and the roads were slick on both sides of the crossing; the windows of the car were closed; he, Graves, could see all right through the front windows of the car, but couldn’t say about the back windows; as he approached the crossing he was traveling between 20 and 25 miles an hour and twice looked for trains; he looked both east and west for trains within 40 feet of the place of the accident and did not see any, and within the next 5 or 6 feet saw the train coming around the elevator abutment; Berg was looking too, and “We both seen it”; he did not hear the train whistle, and did not hear the engine bell ring; he would not know whether the bell could have been ringing and he not have noticed it, and would not have known whether the engine could have been whistling and he not have heard it.

The statement of Graves shows that, after making the foregoing statement, he and the claim agent then went to the crossing, where they took measurements and Graves then said: “we” first looked for a train before reaching the poultry house, but did not see any train; he first saw the train when he was about 76 feet north of the main track and when the train was about 182 feet west of the crossing and nearly at the elevator abutment; he then applied the brakes but skidded about 30 feet to a point about 30 feet north of the main track, and then knew he could not turn or stop and proceeded to “gun” the car across the tracks.

The testimony shows or tends to show that the slippery and icy condition of roads was a general condition that was known or should have been known by Graves and Berg, and by the engineer on the locomotive.

Murray Williams, who was the last to leave the automobile before the accident, testified that on getting out of the automobile at his home on Third Street, he immediately went into his "back yard and then heard the rumble of the train, and while still hearing such rumble went into the house; that he heard no whistle or bell, but was in a position to hear one if same had been sounded.

Williams further testified that with good traction the automobile could have been stopped in 10 feet while going 20 miles an hour, and within 15 feet while going 25 miles per hour; and that on the trip to and from Urbana he saw Graves stop his car probably a dozen times and each time the car stopped quickly. This was the only evidence tending to show in what distance the car could have been stopped while traveling at any rate of speed.

There is no merit to the contention that Berg and Graves were engaged in a joint enterprise, and that the negligence, if any, of Graves can be imputed to Berg. The undisputed evidence is that Berg rode merely as a passenger or guest at the invitation of Graves, and did not pay or contribute anything of value for being conveyed. There was no evidence showing or tending to show a common right of possession or control of the car. The trip, including the bowling, was merely for pleasure and in our opinion did not constitute any joint enterprise.. (See Fisher v. Johnson, 238 Ill. App. 25.) The negligence, if any, of Graves cannot be imputed to Berg, for there is no evidence tending to indicate that Berg could control or direct the movements of the automobile. (See Nonn v. Chicago City Ry. Co., 232 Ill. 378.) Under such circumstances the negligence, if any, of Graves would not excuse the defendant for negligently injuring Berg, provided Berg was without negligence on his part. (See Taylor v. Alton & Eastern R. Co., 258 Ill. App. 293.)

We are unable to agree with the contention of the defendant that there is no evidence, which, taken with all reasonable intendments in favor of Berg, tends to prove that at and immediately prior to the accident he was exercising reasonable care for his own safety. It must be borne in mind that Berg was seated in the rear of the automobile, that there is no evidence tending to show whether the rear windows in the car were clear or frosted, and that Berg was obviously not in as good a position as was Graves to see the approaching train. Graves says that as soon as they (Berg and Graves) saw the train, Berg warned Graves by saying “here she comes,” or by saying “there’s a train.” Berg, because of his mental condition, was unable to testify as to what he said or did immediately before the accident. Berg, having ridden for several miles in the car driven by Graves, might reasonably have supposed that Graves was familiar with the condition of the road and the braking power of his car, and would stop the car in time to avoid a collision, and when Berg realized that Graves was going to attempt to cross ahead of the train, what could, or should, he have done? Who can say now as a matter of law? Cry out? He might have thus confused and disconcerted Graves, the driver, and an instant of indecision in such a case might be fatal. There was no time to reflect or reason. (See Southern Pac. Co. v. Wright, 248 Fed. 261, 264, approved in Miller v. Union Pac. R. Co., 290 U. S. 227, 54 Sup. Ct. 172.) In Smith v. Courtney, 281 Ill. App. 530, the court, per Justice Murphy, said: “The question of contributory negligence is ordinarily one of fact for the jury, which must be determined from all the facts and circumstances surrounding the injury. It is a question of law for the court to determine whether under the facts and circumstances of each particular case there is any evidence tending to prove due care, and if there is such, then the case should be submitted to the jury and the court cannot say, as a matter of law, that the plaintiff has been guilty of such contributory negligence as to bar the right of recovery.” In Stack v. East St. Louis & Suburban Ry. Co., 245 Ill. 308, 310, the court said: “There is no rule of law which prescribes any particular act to be done or omitted by a person who finds himself in a place of danger. In the variety of circumstances which constantly arise it is impossible to announce such a rule. . The only requirement of the law is that the conduct of the person involved shall be consistent with what a man of ordinary prudence would do under like circumstances.” In Fisher v. Johnson, 238 Ill. App. 25, the plaintiff, a passenger, was unable to testify because of retrograde amnesia. There was no direct evidence as to what he said or did immediately before the accident. Although the driver of his car was held negligent, the court said: “As a guest . . . having no control over the car' or its management, he was not called upon to exercise care for himself by any affirmative act unless it was to caution” the driver “of any danger he had an opportunity to discover in the position in which he was placed. ’ ’ Direct evidence of due care is not necessary. There may be circumstances from which it can be assumed. (See Elgin, J. & E. Ry. Co. v. Hoadley, 220 Ill. 462.) The fact that the plaintiff, a passenger, did not do or say anything, does not show contributory negligence as a matter of law. (See Rhoden v. Peoria Creamery Co., 278 Ill. App. 452; St. Clair Nat. Bank of Belleville v. Monaghan, 256 Ill. App. 471; Smith v. Courtney, 281 Ill. App. 530.)

The specific negligence charged was that the train was driven at a high rate of speed without any warning of its approach by causing a bell to be rung or a whistle to be sounded as required by statute. It will be noted that the train was traveling at 60 miles-per hour and that there was competent evidence tending to show that the whistle was not blown and that the bell was not rung. In passing on the motion for a judgment notwithstanding the verdict the trial court was bound to take this evidence as true. (Krieger v. Aurora E. & C. R. Co., 242 Ill. 544.) We believe this evidence fairly tended to show the specific negligence charged.

The next and what we consider the most serious question is whether there is any evidence fairly tending to show that the alleged failure to give any warning of the approach of the train by sounding the whistle or ringing the bell was the proximate cause of the accident. Defendant contends that the sole proximate cause of the accident .was the icy condition of the street and the automobile skidding thereon.

On the question of proximate cause, there are two conflicting lines of outside authorities in- which the facts are quite similar to the facts in the instant case. Decisions favorable to the defendant are Barrett v. U. S. Railroad Administration, 196 Iowa 1143, 194 N. W. 222; Pifer v. Chicago M., St. P. & P. R. Co., 215 Iowa 1258, 247 N. W. 625; Davis v. Pere Marquette Ry. Co., 241 Mich. 166, 216 N. W. 424; Megan v. Stevens, 91 F. (2d) 419; Hickey v. Missouri Pac. R. Corp., 8 F. (2d) 128; Stroud v. Chicago M. S St. P. Ry. Co., 75 Mont. 384, 243 Pac. 1089; and Kramers v. Chesapeake & O. Ry. Co., 60 Ohio App. 556, 22 N. E. (2d) 227. Decisions favorable to the plaintiff are Saeugling v. Scandrett, 230 Iowa 153, 296 N. W. 787; Sisk v. Chicago B. & Q. R. Co. (Mo. App.), 67 S. W. (2d) 830; Williams v. Thompson (Mo. App.), 166 S. W. (2d) 785, and Miller v. Union Pac. R. Co., 290 U. S. 227, 54 Sup. Ct. 172. The fact that the later Iowa case of Saeugling v. Scandrett apparently conflicts with the two earlier Iowa cases above cited, and the fact that in the Megan case there was what we consider a strong dissenting opinion, also indicates the question is a close one.

Some of the cases favorable to the defendant hold that under such circumstances the jury should not be permitted to and could not properly assume that if the requisite signal had been given by the engineer on the locomotive, the driver of the automobile would have heard such signal and would have stopped or attempted to stop his car farther from the place of danger, and hold that to permit the jury to determine the question of proximate cause under such circumstances would be to allow the jury to enter into the field of speculation and adventure.

Some of the cases favorable to the defendant hold that the driver of the automobile had the right to assume that the requisite signal would be given, and that the jury might reasonably infer that if such signal had been given it would have been heard, and being heard the driver of the automobile would have stopped or have attempted to stop out of the zone of danger.

The only Illinois case called to our attention in which we consider the facts somewhat similar is Moudy v. New York, C. & St. L. R. Co., 385 Ill. 446, in which case our Supreme Court reversed a decision of this Appellate Court reported in 317 Ill. App. 154. In the Moudy case the plaintiff first heard the approaching train when he was about 50 feet from the crossing. He was then driving his automobile at a speed of 22 to 25 miles per hour. He immediately applied his brakes to the full extent, but his automobile slid forward about 60 feet and into the side of the passing locomotive. There was evidence tending to show that the automobile brakes although recently repaired were defective, and evidence tending to show that no whistle was blown or bell sounded on the locomotive as it approached the crossing.

In the Moudy case our Supreme Court said: “We have frequently held that, in order for a plaintiff to recover, the defendant’s negligence must have proximately caused, or contributed to cause, the injuries, rather than merely causing a condition providing an opportunity for other causal agencies to act. (Merlo v. Public Service Co., 381 Ill. 300; Briske v. Village of Burnham, 379 Ill. 193; Illinois Cent. R. Co. v. Oswald, 338 Ill. 270.) In the Merlo case we said: ‘The test that should be applied in all cases in determining the question of proximate cause is whether the first wrongdoer might have reasonably anticipated the intervening cause as a natural and probable result of the first party’s own negligence.’ It would be an extreme application of the law to require a railroad company operating its trains on fixed tracks, and required by the exigencies of commerce to move its passengers and commodities rapidly, to anticipate (at every grade crossing) there might be defective brakes upon every automobile approaching a crossing, which would relieve the driver of the exercise of due care, and make the railroad company liable, when not its negligence, but the traveler’s lack of due care, caused the accident. The distinction between a crossing accident occurring from lack of due care upon the part of the plaintiff, or because of an intervening cause under his control, or at least not under the control of the defendant, is so slight as to make rules applicable to them practically the same. We are of the opinion that the evidence in this case most favorable to the plaintiff fails to show that he was in the exercise of due care, or that the alleged negligence of the defendant was the proximate cause of the accident. Under such circumstances, as a matter of law, the plaintiff is not entitled to recover. ’ ’

A pertinent similarity in the facts in the Moudy case and in the instant case is that in the Moudy case the automobile evidently slid forward and into the train, not only because of the momentum of the automobile but also because of its defective brakes, while in the instant case the automobile was evidently unable to be stopped before reaching the danger zone, not only because of its momentum but also because of the slippery condition of the road.

A distinction between the facts in the Moudy case and in the case at bar is that in the Moudy case the plaintiff was driving the automobile, while in the present case the plaintiff was merely a passenger or guest. There is the further distinction that in the Moudy case the Supreme Court found as a matter of law that the evidence failed to show that the plaintiff was in the exercise of due care for his own safety, while in the instant case we are holding that there was evidence tending to show due care on the part of the plaintiff for his own safety. It will be noted, however, that in the Moudy case the Supreme Court also found, as a matter of law, that the evidence did not show that the alleged failure of defendant to give the required signal was the proximate cause of the accident.

In view of the particular facts in the case at bar, and in view of the holding of our Supreme Court in the Moudy case, we feel required to and do hold that the evidence most favorable to the plaintiff does not show or tend to show that the alleged negligence of the defendant in failing to give any warning signal of the approach of the train was the proximate cause of the accident, and that therefore the plaintiff is not entitled to any recovery.

Therefore the trial court erred in not allowing the motion for judgment in favor of the defendant notwithstanding the verdict.

It is ordered that the judgment of the trial court be and the same is reversed.

Reversed.