author: Mr. Presiding Justice Niemeyer

text:
    Edward R. Bacon Grain Co., et al., Appellees, v. City of Chicago et al., Appellants.
    Gen. No. 43,335.

      Heard in the first division of this court for the first district.
    Opinion filed February 21, 1945.
    Rehearing denied March 14, 1945. Supplemental opinion filed March 14, 1945. Released for publication March 14, 1945.
    Barnet Hodes, Corporation Counsel, .for appellants; Martin H. Foss, Assistant Corporation Counsel, of counsel.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellees; Joseph B. Fleming, William H. Symmes and Edward C. Caldwell, all of Chicago, of counsel.
   Mr. Presiding Justice Niemeyer

delivered the opinion of the court.

This is an interlocutory appeal from an order temporarily restraining the City of Chicago and its offleers from enforcing against plaintiffs an ordinance of the city (sections 134-1 to 134-5, inclusive, of the Municipal Code as amended December 15, 1943) which required a license to conduct or operate a grain elevator, and the payment of a license fee of $300 annually for elevators having a capacity of not more than one million bushels, and $600 for elevators having greater capacity.

The plaintiffs, a partnership and 12 corporations, operate 20 grain elevators or warehouses in Chicago having an aggregate storage capacity of approximately 35,000,000 bushels. Twelve of the elevators were licensed under the United States Warehouse Act, three under the Illinois Warehouse Act, and the remaining five were not licensed to store grain for the public. The grain stored is alleged to be “in the flow of interstate commerce subject to regulation by congress.” The complaint as amended charged that the ordinance was invalid and the license fee unreasonable and exorbitant. In this court the alleged invalidity of the ordinance is put upon the ground that the city is without power to pass the ordinance because there is no provision in the Cities and Villages Act which empowers the city to license grain elevators; the ordinance is in direct conflict with federal and state statutes, and the license fee provided for by the ordinance is an unconstitutional burden on interstate commerce.

The ordinance in question has been in force for a number of years. The amendment in December 1943 increased the annual license fees from $100 and $200, to $300 and $600. This increase in the license fee caused the attack on the ordinance. It provides that no person shall conduct or operate a grain elevator within the city without first obtaining a license therefor ; that upon receipt of an application for license the division marshal in charge of the bureau of fire prevention shall make an investigation for the purpose of ascertaining whether or not the building or structure in which it is desired or intended' to conduct a grain elevator is so situated that it would not be so dangerous as to constitute a nuisance or be a menace to the safety of the public or to the adjoining property; that the division marshal shall also investigate to see that proper measures are taken to reduce the fire hazard due to the heating of grains and the possibility of spontaneous combustion and explosion, and shall periodically inspect grain elevators for the purpose of determining whether the same comply with all of the fire regulations of the Municipal Code applicable thereto.

Defendants by their sworn answer take the position that the ordinance is a regulatory measure lawfully enacted by the city as a protection against the extra fire and explosion hazards arising from the operation of a grain elevator due to dust explosions and the likelihood of the grain stored in such elevators becoming heated and through chemical changes igniting and exploding by the physical phenomenon known as spontaneous combustion; that such grain elevators are classified as hazardous use units and constitute one of the greatest fire and explosion hazards with which the city and its fire and police departments have to cope; that there are within the City of Chicago approximately 41 grain elevators, having an aggregate storage capacity of approximately 47,757,000 bushels; that the approximate money value of the grain stored in said elevators in any one day of the year exceeds $75,670,000; that the fire department of the city, and particularly its fire prevention bureau, have given particular study and attention to the prevention of dust explosions and spontaneous combustion of grains in such elevators, and many regulatory provisions have been enacted by the city to' prevent or neutralize the hazards of fire or explosions in such elevators. The temporary injunction was issued on the complaint, answer, and supporting affidavits filed by the respective parties.

In Arnold v. City of Chicago, 387 Ill. 532, the court reviewed the sources pertaining to the power of municipalities to license, regulate and tax occupations, and said (p. 537): “Thus we see that local municipalities derive not only their existence but all their powers from the General Assembly, and having no inherent power they must always be able to point to the particular statutory provision giving them authority to legislate on a particular subject.” Defendants refer to a number of sections of article 23 of the Bevised Cities and Villages Act (Ill. Rev. Stat. 1943, ch. 24 [Jones Ill. Stats. Ann. 21.1632 et seq.]) as supporting the right of the city to pass the ordinance under consideration. Principal ’ reliance is placed upon section 23-75, which empowers cities and villages ‘ ‘ To regulate and prevent the storage of turpentine, tar, pitch, resin, hemp, cotton, gunpowder, nitroglycerine, petroleum, or any of their products, and other similar combustible or explosive material.” This section is substantially identical with paragraph 65.64 of the preceding Cities and Villages Act, which specified all of the materials enumerated above, and, in addition, coal oil and benzine, which were omitted from the revised act. The materials named are not confined to any particular class. They embrace solids and liquids, products of the field, things taken from ■the earth, and the products of distillation and manufacture. Grain is closely related to hemp and cotton, and is highly combustible and explosive. The phrase “other similar combustible or explosive material,” as usecí in the foregoing sections of the Cities and Villages Acts, has not been construed by our courts of review, but in the case of Chicago Cosmetic Co. v. City of Chicago, 374 Ill. 384, in holding that the city had power to regulate and license the manufacture of cosmetics, perfumes, etc., the court referred to various sections of the then controlling Cities and Villages Act, including paragraph 65.64, granting powers to cities, and in speaking of the bases of power for the ordinance under consideration said (p. 393): “The use of petroleum products, alcohol (not named in the statute) and other inflammable or explosive substances in such business enterprises is one basis . . .” It seems plain to us that by section 23-75 and former paragraph 65.64 the legislature intended to vest municipalities with power to protect themselves against the hazards of fire and explosion arising from the storage of combustible or explosive material; that this power of protection was intended to be full, not partial, and to extend to the regulation of the storage of all combustible or explosive materials, and therefore, as said by defendants, “. . - . the similarity which the legislature had in mind was not that found between substances, or between liquids, or between plants, or between manufactured products, but was a similarity in combustibility, inflammability or explosiveness.” The power to license is an incident to the power to regulate. City of Chicago v. Arbuckle Bros., 344 Ill. 597, 602; Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U. S. 412, 426.

But plaintiffs say that the ordinance is not regulatory, but is purely a revenue measure. This contention is based upon the claim„that the inspections required under the ordinance are merely inspections required under provisions of the building code of the city. Numerous sections of the Municipal Code are referred to. All except section 101-29 are parts of the building code. Section 101-29 requires inspection of hazardous use units (which include grain elevators) by the marshal of the bureau of fire prevention, and a certificate from him before the granting of any license to engage in any business, occupy or use any premises, structure or building for any purpose das sified' as a hazardous use unit, but no provisions of the code other than the ordinance before us are pointed out which require inspections in the regulation or prevention of grain dust accumulations, heating of grain, etc. Many of the general provisions of the building code and of fire ordinances are applicable to grain elevators and warehouses, but in the storage of grain there are hazards from spontaneous combustion and dust explosion peculiar to that business, requiring special regulations and inspections to prevent and neutralize those hazards. It was this condition peculiar to the storage of grain that the ordinance was designed to meet. As said in Klever Shampay Karpet Kleaners v. City of Chicago, 323 Ill. 368, 374: “The record warrants the conclusion that the business creates greater danger of fire than other businesses using large quantities of inflammable liquids and justified classifying the dry cleaning business as a special subject of regulation to prevent fires, and the power to adopt reasonable and proper ordinances for that purpose is a necessary incident to the exercise - of the powers expressly granted. The fact, if it is a fact, as contended by the appellant, that many of the provisions of the general ordinances upon the subject of the use of large quantities of inflammable liquids are similar to the dry cleaning ordinance cannot affect the validity of the latter.”

The ordinance is not rendered invalid by provisions of the state constitution relating to warehouses, or by legislation under that provision. Article 13 of the Constitution of 1870, relating to warehouses, contains provision for the protection of producers, shippers and receivers of grain from misconduct in the storage, mixing, grading or weighing of grain, or in respect to receipts issued for grain stored. By section 6 and 7 the legislature is enjoined to pass all necessary laws to prevent the issue of false and fraudulent warehouse receipts, and for the inspection of grain for the protection of producers, shippers and receivers of grain or produce, and to give full effect to article 13, “which shall be-liberally construed so as to protect producers and shippers.” Legislative action under article 13 has been designed to secure that protection. . We find no legislation prescribing regulations for the purpose of preventing or neutralizing dangers from spontaneous combustion, dust explosions, etc., and are referred to no regulation by any administrative officer or body for that purpose. There is no conflict between the ordinance and the constitutional and legislative provisions relating, to warehouses. The latter cover the conduct of the business and the dealings of the warehouseman with the producer, shipper and receiver of the grain stored with him. The ordinance is merely a police regulation to protect the grain and warehouse from damage or de-. struction through fire or explosion. The regulations of the municipality must yield to state legislation when there is a conflict, but the mere fact that the state has legislated upon a particular subject does not necessarily deprive the city of its power to deal with the subject by city ordinance. Cracherjack Co. v. City of Chicago, 330 Ill. 320, 325-326; Chicago Cosmetic Co. v. City of Chicago, 374 Ill. 384, 393.

Plaintiffs place great reliance upon the case of In re Farmers Cooperative Ass’n, — S. D. —, 8 N. W. (2d) 557, decided by the Supreme Court of South Dakota in March 1943. That case involved the validity of an Act of the state legislature prescribing over-all regulation of the business as to the storage, grading, mixing, weighing, etc., of grain, and the receipts issued therefor. The Act was similar in scope to the United States Warehouse Act, the aim of which is to secure fair and uniform business practices, and to facilitate and safeguard commerce in agricultural products. This decision and the argument of plaintiffs predicated thereon might he applicable if we had under consideration Illinois state legislation relative to the warehousing of grain, which covers substantially the same field as the South Dakota and federal legislation, but they are totally inapplicable when applied to an ordinance like the one before us, which attempts to deal only with conditions in the building affecting fire and explosion hazards and which is designed, not to regulate the occupation of warehousemen as such, but the place in which the grain is stored. City of Chicago v. R. & X. Restaurant, 369 Ill. 65, 68. The same principles apply when the ordinance is considered in relation to the United States Warehouse Act. In Kelly v. State of Washington ex rel. Foss Co., 302 U. S. 1, the court said (pp. 9, 10): “Under our constitutional system, there necessarily remains to the States, until Congress acts, a wide range for the permissible exercise of power appropriate to their territorial jurisdiction although interstate commerce may be affected. Minnesota Rate Cases, 230 U. S. 362, 402. States are thus enabled to deal with local exigencies and to exert in the absence of conflict with federal legislation an essential protective power. And when Congress does exercise its paramount authority, it is obvious that Congress may determine how far its regulation shall go. There is no constitutional rule which compels Congress to occupy the whole field. Congress may circumscribe its regulation and occupy only a limited field. When it does so, state regulation outside that limited field and otherwise admissible is not forbidden or displaced. The principle is thoroughly established that the exercise by the State of its police power, which would be valid if not superseded by federal action, is superseded only where the repugnance or conflict is so ‘direct and positive’ that the two acts cannot ‘be reconciled or consistently stand together.’ ” See also The Minnesota Rate Cases, 230 U. S. 352; Townsend v. Yeomans, 301 U. S. 441.

The plaintiffs operating under a license issued by the Secretary of Agriculture pursuant to the United States Warehouse Act are in no better position than the other plaintiffs. That license does not exempt the holder from proper state license tax or regulation. Federal Compress & Warehouse Co. v. McLean, 291 U. S. 17; Union Brokerage Co. v. Jensen, 322 U. S. 202. The federal control of interstate commerce does not preclude local police regulations covering matters as to which Congress has not,acted. In California v. Thompson, 313 U. S. 109, 113, the court said: “As this court has often had occasion to point out, the Commerce Clause, in conferring on Congress power to regulate commerce, did not wholly withdraw from the states the power to regulate matters of local concern with respect to which Congress has not exercised its power, even though the regulation affects interstate commerce. Ever since Willson v. Black Bird Creek Marsh Co., 2 Pet. 245, and Cooley v. Board of Port Wardens, 12 How. 299, it has been recognized that there are matters of local concern, the regulation of which unavoidably involves some regulation of interstate commerce, but which because of their local character and their number and diversity may never be adequately dealt with by Congress. Because of their local character, also, there is wide scope for local regulation without impairing the uniformity of control of the national commerce in matters of national concern and without materially obstructing the free flow of commerce which were the principal objects sought to be secured by the Commerce Clause. Notwithstanding the Commerce Clause, such regulation in the absence of Congressional action has, for' the most part, been left to the states by the decisions of this Court, subject only to other applicable constitutional restraints.” The ordinance before us is a police regulation of a strictly local character, intended to protect the city, its people and property from fire and explosion arising out of the maintenance and operation of warehouses. It applies alike to all warehouse operators* whether engaged in intrastate or interstate commerce. It is not in conflict with the Commerce Clause of the constitution or any federal legislation or regulation. It must be upheld unless the annual license fee is, as claimed by plaintiffs, excessive and disproportionate to the expense of regulation.

The matter of fixing the amount of a license fee is for the city council in the exercise of a sound legislative discretion. City of Chicago v. Ben Alpert, Inc., 368 Ill. 282, 287. The same rule prevails in the federal courts. In considering the validity of state legislation for the inspection of oil, gasoline, etc., the court in Pure Oil Co. v. Minnesota, 248 U. S. 158, in speaking of plaintiff’s claim that the inspection charge was so excessive as to render the act a revenue measure, said (pp. 162, 163): “In the consideration of this question the discretion of the legislature in determining the amount of the inspection fee will not lightly be disturbed. Its determination is prima facie reasonable and the courts will not ‘enter into any nice calculation as to the difference between cost and collection; nor will they declare the fees to be excessive unless it is made clearly to appear that they are obviously and largely beyond what is needed to pay for the inspection services rendered.’ Foote & Co. v. Maryland, 232 U. S. 494, 504, and Western Union Telegraph Co. v. New Hope, 187 U. S. 419. ’ ’ On the motion for a temporary injunction there were no facts before the court showing that the fee charged was unreasonable or excessive. The burden of making this showing rested upon the plaintiffs.

The ordinance being a valid regulatory police measure, the temporary injunction was improvidently issued. The order- appealed from is reversed.

Order reversed.

Matchett and O’Connor, JJ., concur.

SuPPDBMENTAD OPINION ON PETITION BOR REHEARING.

In their petition for rehearing plaintiffs erroneously contend that the court has determined the issues raised by the pleadings and for the settlement of which the case has been referred to a master in chancery. Our decision was based upon the record before us. . We held that the ordinance was a valid exercise of police power designed to give protection against fire and explosion, and that its enforcement should not be temporarily enjoined. Cleaners Guild of Chicago v. City of Chicago, 312 Ill. App. 102. In the proceedings before the master each party may present such competent evidence as is deemed advisable. The trial court will then determine all issues of fact on the record then presented to it, uninfluenced by the opinion of this court on the interlocutory appeal. Cummings-Landau Co. v. Koplin, 386 Ill. 368.

The petition for rehearing is denied.

Petition denied.


source: Caselaw Access Project

author: Justice Wolfe.

license: Public Domain

text:
    Bernadine Bissekumer, Appellant, v. Roger Bissekumer, Appellee.
    Gen. No. 9,942.
    Heard in this court at the October term, 1944;
    opinion filed February 8, 1945;
    released for publication March 7, 1945.
    Wilbur E. Johnson and Hall & Hall, for appellant; Roy P. Hall, of counsel;
    Welsh & Welsh, for appellee; C. E. Welsh, of counsel.
   Opinion by

Justice Wolfe.

Hot to be published in full.


author: Justice Scanlan.

text:
    William Lorimer, Jr., Administrator of Estate of William Lorimer, Deceased et al., Appellants, v. Rosehill Cemetery Company et al., Appellees.
    Gen. No. 42,804.
    Heard in the second’ division, first" district, this court at the October term, 1943;
    opinion filed February 13, 1945;
    released for publication March 5, 1945.
    Francis M. Lowes and Rothbart & Rosenfield, for appellants; Ashcraft & Ashcraft, for certain appellees;
    Harold L. Reeve, Elmer M. Leesman and Charles E. Carnahan, for certain other appellee; Carroll J. Lord, of counsel.
   Opinion by

Justice Scanlan.

Hot to be published in full.


text:
    City of Chicago, Appellee, v. Theodore Dryier, Appellant.
    Gen. No. 43,045.

      Heard in the second division, first district, this court at the April term, 1944;
    opinion filed February 13, 1945;
    rehearing denied March 5, 1945; released for publication March 5, 1945.
    George L. Griffin, for appellant; Barnet Hodes, Corporation Counsel, for appellee;
    J. Herzl Segal and Georgia Jones Ellis, Assistant Corporation Counsel, of counsel.
   Opinion by

Justice Scanlan.

Hot to be published in full.


author: Justice Kiley.

text:
    Gerald T. Wiley et al., Appellants, v. Caryl Frink MacArthur Michelmore, Appellee.
    Gen. No. 42,851.
    Heard in the third division, first district, this court at the October term, 1943;
    opinion filed February 14, 1945;
    released for publication March 5, 1945.
    Richard F. Hahn, for appellants;
    Frank R. Reid, Charles A. O’Connor and Gerald T. Wiley, pro se; Elliodor M. Libonati, for appellee; Abraham Miller, of counsel.
   Opinion by

Justice Kiley.

Hot to be published in full.


text:
    James Oakey Koontz, Appellant, v. Public Service Company of Northern Illinois, Appellee.
    Gen. No. 42,925.
    Heard in the third division, first district, this court at the December term, 1943;
    opinion filed February 14, 1945;
    released for publication March 5, 1945.
    James O. Koontz, pro se;
    Isham, Lincoln & Beale, for appellee; James P. Dillie, of counsel.
   Opinion by

Justice Kiley.

Not to be published in full.


author: Mr. Presiding Justice Dady

text:
    Albert J. Passent and Gladys C. Passent, Appellants, v. Peter Vredenburgh Lumber Company, Inc., Appellees.
    Gen. No. 9,453.

      Heard in this court at the February term, 1945.
    Opinion filed February 28, 1945.
    Released for publication March 27, 1945.
    Homer D. McLaren, of Springfield, for appellants.
    Barber & Barber, of Springfield, for appellee.
   Mr. Presiding Justice Dady

delivered the opinion of the court..

This is a suit in chancery brought by the plaintiffs appellants, who are husband and wife, against the defendants appellees.

The proofs were heard by the chancellor. The record contains no transcript of the trial proceedings.

Inasmuch as the evidence was not preserved and no question of the sufficiency of the pleadings is involved, we believe a brief statement,of the material facts, as found by the decree, is sufficient to present the issues we are required to pass upon.

In July 1941, the appellants, Albert J. Passent and Gladys C. Passent; purchased from appellee, Peter ° Vredenburgh Lumber Company, hereinafter referred to as “Lumber Company,” at the price of $5,100, a dwelling house and its appurtenances, which house had theretofore been constructed by the Lumber Company. At the time of such purchase and at the time of the consummation thereof appellants and the Lumber Company believed such house was located on a Lot 429, but as a matter of fact the house was located on a Lot 426.

At all of the times in question Lot 426 was and is owned by the appellee Easley, who had no knowledge or notice of the construction of the house until after the filing of the complaint.

At the time of such purchase the appellee Wanless held the record title to Lot 429. In attempting to comply with the contract of purchase the Lumber Company, in good faith, caused Wanless to convey Lot 429 to the appellants.

In consummating the purchase the appellants mortgaged Lot 429 to an insurance company to secure their note for $4,500, and executed and delivered to the Lumber Company a note for $180 as part of the purchase price.

About August 1, 1941, the appellants went into possession of the house and personally occupied it until July 1, 1943. From July 1, 1943, to October 1, 1943, the appellants rented such house and received $50 per month rental. After October 1, 1943, the house was unoccupied. The fair rental value of the house from August 1, 1941, to October 1,1943, was $50 per month.

The appellants paid the Lumber Company $547.47 on account of the purchase price, expended $155.85 for shrubbery, grading and other improvements, and paid to the insurance company $660 to apply on the mortgage indebtedness. They received $1,300 in rentals and rental value of and from the premises, and on August 12, 1943, received a refund from the insurance company of $52.80.

The actual payments and disbursements by appellants on account of the premises, improvements and mortgage, with interest at 5 per cent per annum, exceeded the rents, rental value and such refund by the sum of $52.87 as of October 1, 1943.

On August 11, 1943, the appellants commenced this suit. The prayer of the complaint was that the Lumber Company and the insurance company pay to the clerk of the court the moneys received by them, plus interest at 5 per cent, the same to be distributed according to the order of the court; that the Lumber Company and the insurance company receive from said moneys any amount which should in law and equity be paid to them as rent, interest, or in a principal sum as the court should determine equitable, and that the appellants receive such amount as the court should deem equitable and just. The prayer for relief further stated that the appellants agreed that they should surrender all interest in and possession to Lot 429.

After the commencement of this suit the Lumber Company purchased such mortgage and the note thereby secured.

The appellee Easley, by his answer, disclaimed any interest in the house, but averred that such house and all rents and claims for rent thereof belonged to the Lumber Company.

The decree, entered December 4, 1943, ordered that the Lumber Company pay to the clerk of the court, for the use of the appellants, $52.87, with interest at 5 per cent per annum from October 1, 1943, and cancel and surrender to the clerk, for the use of the appellants, the $180 note and said mortgage and the note thereby secured. The decree then found that the Lumber Company had complied with such decree. The decree then ordered that the appellants convey Lot 429 and surrender the possession thereof to the Lumber Company by quitclaim deed within 10 days.

the first contention of appellants is that the trial court erred in allowing the Lumber Company a credit or off set for the rental value of the premises while actually occupied by the appellants, and for the rents received by the appellants from such premises. It is our opinion that the appellants were properly required to account and make allowance for such rents and rental value. (See Frazer v. Board of Supervisors of Peoria County, 74 Ill. 282; Underwood v. West, 52 Ill. 397.)

The next contention of appellants is that the trial court erred in not holding that appellants were entitled to the ‘‘enhanced value of the property.” We do not consider that this question is presented for our consideration. No issue was made by the pleadings as to whether there was or was not any enhancement in value other than the cost of the improvements. The decree contained no finding as to enhancement or decrease in value', and the record does not show any evidence admitted or offered on this subject.

The next and only other contention of the appellants is that the trial court erred in not allowing costs and attorney’s fees to appellants. The decree is entirely silent on the subject of attorney’s fees and court costs. The complaint did not ask for any adjudication on such subject. The decree specifically finds that before the commencement of the suit the Lumber Company offered to give to the appellants all of the relief and the same relief that appellants obtained by the decree. No attorney’s fees could properly have been allowed. (See Ritter v. Ritter, 381 Ill. 549.) As the case is presented we do not consider there was any error in the decree in this respect.

The decree of the trial court is affirmed.

Affirmed.


author: Mr. Justice Hayes

text:
    Allied Cab Company, Appellant, v. Walter E. Hopkins, Appellee. Walter E. Hopkins, Counterclaimant Appellee, v. Allied Cab Company, Counterdefendant Appellant. Emma Marchetti, Plaintiff, v. Walter E. Hopkins, Defendant.
    Gen. No. 9,459.

      Heard in this court at the February term, 1945.
    Opinion filed February 28, 1945.
    Released for publication March 27, 1945.
    Herman H. Cohn and C. A. Livingstone, both of Springfield, for appellant; C. A. Livingstone, of Springfield, of counsel.
    Davison & Davison, of Springfield, for appellee.
   Mr. Justice Hayes

delivered the opinion of the court.

The Allied Cab Company brought suit in the circuit court of Sangamon county against Walter E. Hopkins for damages to its property resulting from a collision between one of its taxicabs and a car driven by Hopkins. Hopkins thereafter filed a counterclaim for damages, for personal injuries, and damages to his car. Before trial this cause was consolidated with another suit arising out of the same occurrence between Emma Marchetti, the passenger in the cab in question, and Hopkins. Trial was had before a jury who found Hopkins not guilty in both cases and awarded him a verdict for fifteen hundred dollars on his counterclaim against the cab company. Emma Marchetti prevailed on a motion for a new trial in the circuit court; a similar motion by the Cab Company was overruled and it has appealed to this court.

The Cab Company first contends that the verdicts of the jury finding Hopkins not guilty of the charges in the complaint and finding it guilty of the negligence alleged in his counterclaim are not supported by the evidence. The Cab Company sought to prove at the trial that Hopkins made a left turn directly in front of one of its cabs in violation of certain statutes of the State of Illinois and ordinances of the City of Springfield. Hopkins, on the other hand, contended that he drove to the center of the intersection and during a pause and before turning left was struck by one of the company’s vehicles. There is evidence in the record supporting the allegations of both complaint and counterclaim and we believe the trial court correctly submitted the issues involved to a jury. Although the case is a close one on the facts, we cannot say the verdict is against the manifest weight of the evidence.

The Cab Company also challenges certain instructions given in behalf of Hopkins by the trial court. Some of these instructions were given to guide the jury in deciding the issues between Hopkins and Emma Marchetti; the balance were directed to the controversy between Hopkins and the Cab Company. We do not believe that the first group of instructions can be reviewed on this appeal. While it is. true that these instructions were before the jury when it was weighing the merits of the case between the. Cab Company and Hopkins, nevertheless it must be assumed that the jury was able to and did weigh each of the multiple issues before it separately and in the light of the specific instructions applicable thereto.

We do believe, however, that the circuit court erred while instructing the jury on the question of the Cab Company’s contributory negligence. The jury was instructed that the “Allied Cab Company cannot recover in this case, if by the failure of the driver of the cab to exercise reasonable care for his own safety, immediately before and at the time of the collision, he contributed to the collision in any degree.” An instruction similar to this was condemned in Schmidt v. Anderson, 301 Ill. App. 28, 21 N. E. (2d) 825 because it failed to inform the jury that the plaintiff’s negligence must have been the proximate cause of the accident before recovery would be barred. For the same reason the instruction before us inaccurately states the law concerning possible contributory negligence on the part of the Allied Cab Company.

While error was committed by the circuit, court, we believe the error was harmless in this particular case. An examination of the record discloses that there was given on behalf of the Cab Company the following instruction: “The jury are instructed that if it believes from the evidence that the defendant Walter Hopkins was guilty of any negligence which contributed to any degree to the injuries of which he complains in his counterclaim, then he cannot recover and your verdict as to such counterclaim should be for the plaintiff.” Since the Cab Company permitted' the court to commit the same error in its behalf as it now complains was made in Hopkin’s behalf, it is not entitled to relief. Slack v. Harris, 200 Ill. 96; Harney v. Sanitary Dist. of Chicago, 260 Ill. 54.

We have carefully examined the remaining instructions to which the Cab Company objects. While they are not models of clarity we do not believe they state the law of the case inaccurately or in a manner that would tend to confuse a jury, nor do we believe that the forms of verdict returned by the jury are subject to complaint since considered together they accurately indicate the decisions reached.

For the reasons herein stated the judgment of the circuit court of Sangamon county is therefore affirmed.

Judgment Affirmed.


author: Mr. Justice Riess

text:
    J. F. Shepard, Appellee, v. Lewis C. Wheaton, Deceased, Minnie A. Wheaton et al., L. F. Shepard, Trustee et al., Defendants and Appellees, and John Garvin, Trustee and Stockholders’ Agent, Defendant and Appellant.
    Gen. No. 9,458.

      Heard in this court at the February term, 1945.
    Opinion filed February 28, 1945.
    Released for publication March 27, 1945.
    Richard F. Dunn, William R. Bach and William J. Bach, all of Bloomington, for appellant.
    Bracken, Livingston, Murphy & Barger and Joseph W. Depew, all of Bloomington, for appellee.
   Mr. Justice Riess

delivered the opinion of the court.

John Garvin, trustee and stockholders’ agent, one of numerous defendants in a mortgage foreclosure proceeding pending in the circuit court of McLean county, has appealed from a summary judgment entered against him and in favor of plaintiff in the above cause. The plaintiff appellee, J. F. Shepard, had filed a suit in equity to foreclose a first mortgage real estate lien given to secure payment of a promissory note in the principal sum of $7,000, by Lewis 0. Wheaton and Minnie A. Wheaton, his wife, to Shepard as trustee, on March 15, 1922 and duly recorded on May 4, 1922. On March 1,1925, the Wheatons had executed a second deed of trust in the nature of a mortgage covering the same real estate, which was recorded on June 12, 1925. This second mortgage lien was given to secure the payment of a series of five promissory notes aggregating $8,000. Notes numbered 1, 2 and 3 were for principal sums of $2,000 each and notes numbered 4 and 5 were for $1,000 each; the latter two being held by defendant appellant Garvin as trustee and assignee agent for former bank stockholders. The foreclosure suit was filed on July 29,1932, and set forth both mortgage liens, alleging the second mortgage to be a junior and subordinate lien to that of the plaintiff. The mortgagors, noteholders and others claiming interest under the second mortgage were joined as defendants. All defendants except appellant failed to plead and made default. Appellant Garvin alone filed an answer and counterclaim and now prosecutes this appeal.

On June 5,1929, one L. B. Strayer, as administrator of the estate of Sarah Hefner, deceased, holder of notes 1, 2 and 3 secured by the second mortgage, had filed a suit in chancery against J. F. Shepard and the Normal State Bank for an accounting and equitable relief. In that proceeding, it was alleged that Sarah Hefner had placed in the hands of J. F. Shepard and the Normal State Bank, funds to be invested for her, which money was used in the purchase of said second mortgage notes numbered 1, 2 and 3.- The administrator charged that defendants had falsely represented to the deceased that the notes were secured by first mortgage liens; that she later learned such representations to be false and by her suit, sought rescission of the contract for the sale and purchase of the notes and recovery of the purchase price paid therefor. On the day following the filing of this suit, Stella Flesher, daughter of Sarah Hefner, as assignee and owner of the mortgage notes 4 and 5, filed a similar suit with similar allegations of fraud and misrepresentation against said defendants Shepard and Normal State Bank. She also prayed rescission of the contract of purchase as to notes 4 and 5, aggregating $2,000, and sought recovery of the purchase price thereof. She tendered the notes to the defendants in that proceeding and then deposited them with the clerk of the circuit court of McLean county in which all of the suits were pending. The filing of both suits seeking rescission of the contract and recovery of the money antedated the filing of the foreclosure proceeding wherein the summary judgment now before this court was entered. Some of the same attorneys who appear herein represented the owners of the three notes held by the mother’s estate and of the two notes held by the daughter. By agreement, the Flesher case of the daughter seeking rescission of notes 4 and 5 was to abide the final decision in the Strayer case affecting notes 1, 2 and 3 which decision should be ‘1 accepted by counsel on both sides as controlling the issues” in the Flesher case. The statement and stipulations in relation thereto by Mrs. Flesher and her attorney Mr. Dunn, who is also counsel for appellant in this proceeding with other counsel, appears with Mrs. Flesher’s subsequent motion to dismiss her suit set forth at page 5 of additional abstract. The motion to dismiss the Flesher suit and return notes 4 and 5 to her was filed on December 27, 1943 and on the same day was heard and taken under advisement and since then, no order has been entered in that cause and the motion was never ruled upon by the chancellor of the trial court in which the case is still pending. Copies of the pleadings and court proceedings in the Strayer and Flesher cases together with certified copy of the Appellate Court’s opinion in the Strayer case are attached as exhibits to the amended verified complaint, all of which appear from the exhibits and stipulations and clerk’s certificate attached thereto.

The case filed by Strayer as administrator of the estate of Sarah Hefner, deceased, mother of Stella Flesher, was dismissed by the trial court for want of equity in 1937. An appeal was taken from that decree to this court and the respective parties were represented in this court by some of the same counsel as those appearing in the present and all prior proceedings. The Strayer case was decided by this court on April 20,1938; our opinion appearing in abstract form in L. B. Strayer v. Shepard, 298 Ill. App. 630, 19 N. E. (2d) 234. The exhibit of a certified copy of the court’s opinion in that case, upon rehearing therein, fully details the material facts averred and involved in the present proceeding. We there fully discussed the equitable claims of plaintiff under, the facts presented and held that the appellant was not entitled to equitable relief and had a complete and adequate remedy at law, since she sought recovery of only a money judgment or decree.

During the year of 1926 and before filing her above suit in 1929, Stella Flesher had assigned her notes numbered 4 and 5 and certain other notes as collateral security for a $2,700 loan, to the Farmers State Bank of Wenona of which appellant was then president. These pledged notes numbered 4 and 5 were later delivered to her by the bank in order to enable her to tender them to Shepard and the Normal State Bank and to deposit them with the clerk of the circuit court as a continuing tender, in which entire transaction the bank pledgee co-operated with her and were conversant with the facts. The assets of the Farmers State Bank of Wenona later passed to the First State Bank of Wenona, in wMch transaction the Farmers State Bank guaranteed payment to the First State Bank of Wenona of the Flesher second mortgage notes numbered 4 and 5 then held as collateral. Appellant John Garvin, president of the Farmers State Bank, testified in the Strayer case. Appellee Shepard contends that by reason of these circumstances and the acquirement of the notes concerning which Stella Flesher had filed her suit in which the notes were so deposited and still remain in the custody of the clerk of the circuit court of McLean county, the Farmers State Bank, as assignee pledgee of the notes became privy to the rescission by Stella Flesher. Subsequent to the disposition by this court of the appeal in the Strayer administrator case, the appellee Shepard filed an amended complaint on September 2,1942 in the foreclosure proceeding under the first mortgage, setting up the transfer by Stella Flesher to the Farmers State Bank of Wenona as assignee of all her right, title and interest in and to notes 4 and 5 and the bank’s legal ownership thereof. The bank was then joined as a defendant and the same relief was prayed as against all defendants in the original complaint.

Later, on March 24, 1943, defendant appellant Garvin, as trustee and stockholders’ agent, filed his appearance and answer to the amended complaint. In this answer, he alleged in substance that he was the former president of the Farmers State Bank of Wenona which was dissolved on May 13, 1942; that all of its assets, including notes 4 and 5 were assigned to him as .trustee and stockholders’ agent. He later filed an amended answer on November 24, 1943 in which he alleged in substance that when Stella Flesher applied to the Farmers State Bank of Wenona in 1927 and was extended the $2,700 loan, partially secured by notes 4 and 5 as collateral, the bank officers inquired of Shepard as to the value of these notes and whether they were secured by a first mortgage and alleged that they were told that they were first mortgage notes; that in reliance on such statement the bank made the loan and procured the assignment of the notes from Mrs. Flesher; which loan, however, was not sought by nor made to Shepard who was not a party to the loan transaction; that Mrs. Flesher did not repay the loan and the assignment became absolute and that Shepard should now be estopped in equity from asserting priority of his first mortgage lien over that secured by the two second mortgage notes 4 and 5 now owned by appellant. The mortgage securing the notes appeared of record and no fiduciary relation between Shepard and the bank is averred. It further appears that the Wheatons, as mortgagors, Stella Flesher and all of the heirs of Sarah Hefner were made defendants in the foreclosure proceeding and that a default and decree pro oonfesso had been entered against all of them.

A motion for a summary judgment against the appellant Garvin was filed by appellee Shepard on December 10,1943, with supporting affidavit setting forth in substance the foregoing facts and circumstances. The contention as set forth in the motion that by her election to rescind the contract of sale and purchase of notes 4 and 5 in her suit in chancery and to recover the purchase price, Stella Flesher and her privies are now estopped from affirming the contract of sale and purchase as against J. F. Shepard or from affirmatively asserting in this proceeding a claim based on the purchase and ownership of the notes superior to the rights of Shepard; that the Farmers State Bank of Wenona and appellant as its successor in title were and are privy to said rescission by Stella Flesher; that the rights of appellant Garvin are the same and privy to those of the rights and remedies of Stella Flesher; that the remedy available to them is that of the holder or holders of notes secured by a second mortgage lien subordinate and junior to the lien of . the trust -deed securing the first mortgage note of $7,000 held by Shepard, as alleged in the amended complaint. This motion was duly heard and allowed by the circuit court and the summary judgment was entered against said defendant from which this appeal was taken.

Appellant has assigned eight errors, viz: (1) In entering order for summary judgment depriving defendant Garvin of his right to interpose alleged equitable defenses set forth in his answer. (2) That entry of the order of summary judgment was not authorized by par. 181, ch. 110, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 104.057], as not being an action upon a contract, express or implied, nor upon a judgment nor decree to recover possession of land and chattels. (3) In adjudicating the respective rights of the parties without hearing evidence. (4) In holding that the alleged dismissal without prejudice of the suit of Stella Flesher was a bar to defendant Garvin’s alleged affirmative defense. (5) In holding that John Garvin is estopped as against plaintiff in asserting a claim or remedy as owner of the notes superior to the rights of plaintiff. (6) and (7)' In holding that the suit of Stella Flesher was an election of remedies which bars appellant from presenting his affirmative defense. (8) In holding that mistaken equitable remedies sought by Stella Flesher is a bar to the alleged affirmative defense of appellant.

In passing upon the motion for summary judgment, only the facts well pleaded as a defense or counterclaim are to be taken as admitted and not the defendant’s conclusions therefrom.

In passing upon the question of the trial court’s jurisdiction to enter a summary judgment against the defendant on. the theory that plaintiff’s action is not based upon a contract seeking a money recovery or for the recovery of lands or chattels, the court must view the facts presented by the verified pleadings and exhibits in the light of present statutory provisions governing the same. In the provisions of sec. 57 of the present Illinois Civil Practice Act (Ill. Rev. Stat. 1943, ch. 110, par. 181; Jones Ill. Stats. Ann. 104.057) concerning summary judgments, the pertinent language reads as follows: “If in any action, including a counterclaim at law or in equity, (a) upon a contract, express or implied; or (b) upon a judgment or decree for the payment of money; or (c) to recover possession of land, with or without rent or mesne profits; or (d) to recover possession of specific chattels, the claimant shall file an affidavit ... of the facts upon which the complaint or counterclaim is based and the amount claimed (if any), over and above all just deductions, credits and set-offs (if any), the court shall, upon motion, enter a judgment or decree for the relief demanded, . . .”

Paragraph 1 of rule 15 of the Supreme Court provides as follows: “(1) Affidavits in support of and in opposition to a motion by plaintiff or defendant for summary judgment or decree shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the party relies; shall not consist of conclusions but of such facts as would be admissible in evidence;'and shall affirmatively show that the affiant if sworn as a witness, can testify competently thereto. If all the facts to be shown are not within the personal knowledge of one person, two or more affidavits shall be used.” Supreme Court Rule 16 provides “When the éntry of summary judgment or decree in favor of a party entitled thereto will not dispose of all of the issues in the case, the court may, as the justice of the case shall require, either (1) allow the motion and postpone the entry of judgment or decree thereon; (2) allow the motion and enter judgment or decree thereon; (3) allow the motion, enter judgment or decree thereon and stay the enforcement thereof pending the determination of the remaining issues in the case. If a party resisting the entry of a summary judgment or decree relies upon an affirmative demand against the moving party for an amount less than the latter’s demand, judgment or decree for the difference may be entered and enforced.”

This court held in the case of Shirley v. Ellis Drier Co., 310 Ill. App. 518, 34 N. E. (2d) 728 that in passing on motions for summary judgment, the court considers affidavits of respective parties as though they represented oral evidence of witnesses on the stand, and then determines whether there would be something to go to the jury or whether the court would be required to direct a verdict. In the case of Gliwa n. Washington Polish Loan & Building Ass’n, 310 Ill. App. 465, we further held that “In summary judgment procedure, the pleadings, while important, are not controlling; if it appears from the facts stated in affidavits or documents that the answer is sham, or false, or frivolous, it will be disregarded.” The appellee’s suit in this instance sought to recover judgment upon a promissory note for $7,000, and to enforce plaintiff’s equitable lien against real estate secured by the first mortgage. The right of the defendant to recover upon the notes secured by the second mortgage is not disputed and this right is alleged to be the same right as that of Mrs. Flesher from whom notes 4 and 5 held by appellant were acquired as privy assignee to the rights of Mrs. Flesher. It is no longer true that a summary judgment may not be granted in equity and we find no force in appellant’s contention to that effect. The present statute and Supreme Court rules expressly provide that in any action, including a counterclaim at law or in equity based upon any of the four grounds set forth in the above-quoted statute, the court' shall, upon motion, enter a judgment or decree for the relief demanded. This question arose directly in equity proceedings in the cases of Pellino v. 3232 Hull Ave. Realty Corp., 237 App. Div. 759, 264 N. Y. S. 214 and Kohn v. Beggi, 147 Misc. 701, 264 N. Y. S. 274 in which it was held that “It is proper to grant summary judgment in an action to foreclose mortgage.” And, in the case of Peoples Wayne County Bank v. Wolverine Box Co., 250 Mich. 273, 230 N. W. 170 it was held that “The summary judgment law provides a speedy method of determining whether there are any issues of fact in causes arising upon contract, judgment or statute.” In Coutts v. J. L. Kraft & Bros. Co., 119 Misc. 260, 196 N. Y. S. 135 it was further said that where no material issue of fact is raised by the pleadings, the court is empowered to render summary judgment on affidavit under this rule, although it is first necessary to decide an important question of law. See also Supreme Court Rule 16, supra. We are of the opinion that the trial court, under the present act, was fully empowered to enter a summary judgment upon the factual situation presented by the affidavits and record. The question presented by the record is not whether the appellant may enforce his rights as assignee of the notes by enforcement of his junior mortgage lien, but whether or not the alleged affirmative defense seeking an equitable remedy against the plaintiff whereby plaintiff is estopped from asserting a prior lien under the first mortgage as against appellant assignee’s notes on the ground of alleged fraudulent representations, states a good defense or counterclaim. From the record before us, including the pleadings, stipulations, agreement concerning the decision of this court in the Strayer case binding by agreement upon the parties in the Flesher case and the respective affidavits and opinion in full of this court, factually reciting the entire proceedings, followed by the motion for summary judgment, we are of the opinion that the appellant was without question a party privy to the Flesher case, fully conversant with the facts and bound to the same extent as'the assignor was by the agreement concerning the disposition of both cases and cannot now, in equity set up the same alleged defense which Mrs. Flesher saw fit to elect and pursue in her suit which is fully discussed in the former opinion of this court in the Strayer suit.

Disregarding the conclusions and considering only facts well pleaded by appellant, together with the pleadings, affidavits and exhibits before this court, the attempt of defendant by a belated amendment to set up and relitigate the same facts that ivere passed upon in the former proceeding and there held not to constitute equitable grounds of relief, does not set forth facts stating valid grounds of defense or right to the" relief prayed for in the counterclaim.

While ordinarily, the question would be passed upon by a motion to strike where the pleadings upon their face failed to set up a valid defense; the rule varies in case of a verified motion for summary judgment setting up by affidavit certain additional facts and requires that movant make it clear to the court that no.issue of fact is actually presented by the pleadings and that the court may, upon motion, enter a summary judgment. Here, we believe that the trial court committed no error in granting the motion for a summary judgment and in entering judgment against appellant.

While we have not discussed at length the various contentions of the parties, we have fully considered the same and we find no reversible error in the record. The judgment of the circuit court of McLean county is therefore affirmed.

Judgment affirmed.


text:
    G. L. Lathrop, Appellant, v. Goodyear Tire and Rubber Company, Inc., Appellee.
    Gen. No. 9,454.

      Heard in this court at the February term, 1945.
    Opinion filed February 28, 1945.
    Released for publication March 27, 1945.
    Carson & Appleman, of Urbana, for appellant.
    Henry I. Green and Oris Barth, both of Urbana, for appellee; H. O. Sweany, of Akron, Ohio, of counsel.
   Mr. Justice Riess

delivered the opinion of the court.

Plaintiff appellant, Gr. L. Lathrop, filed suit in the circuit court of Champaign county seeking recovery from defendant appellee, Goodyear Tire and Rubber Company, of damages to the automobile of plaintiff alleged to have been incurred while in the custody of defendant as a bailee for hire when stored in the latter’s garage in Champaign, Illinois, as the proximate result of defendant’s negligence. Defendant filed a motion for a directed verdict in its favor at the close of plaintiff’s evidence which was denied and at the close of all the evidence, the motion was renewed and ruling thereon was reserved by the court until after return of a jury’s verdict. A verdict was returned in favor of the plaintiff. Defendant thereupon filed a motion for judgment notwithstanding the verdict and in the alternative for a new trial. The court granted the motion to set aside the verdict and entered judgment in favor of the defendant notwithstanding the verdict in bar of suit and for costs. From this judgment, the plaintiff has appealed.

Error by the trial court is assigned (1) in setting aside the verdict and in entering judgment notwithstanding the verdict in favor of defendant and against the plaintiff; (2) in. reserving its ruling upon defendant’s motion for a directed verdict at the close of all the evidence, after overruling a motion by defendant for a directed verdict at the close of the plaintiff’s evidence.

The uncontradicted material facts are in substance as follows: On July 17, 1943 plaintiff, a traveling agent for Eureka College, had left his 1941 Ford sedan with the defendant proprietor of a public garage for storage of the car over the week-end at the rate of fifty cents per night; that while in the custody of the defendant as bailee, the motor vehicle sustained damages and upon its return to the plaintiff owner, the cost of repair and loss of use of the automobile was shown to be $480.56. Plaintiff proved delivery of the car in storage to the defendant bailee for hire and the return of the car in the damaged condition, which, standing alone, would have made a prima facie case. However, plaintiff also placed upon the stand several witnesses to show the manner in which the car was damaged and to show alleged negligence by the defendant proximately causing the same. In making this additional proof as a part of his case, plaintiff showed that defendant had on the Monday previous to the time when his car was left at the garage, employed a boy named Herschel Edwards, aged 16 years, to work about the garage; that at the time of the employment, defendant was given three references in the boy’s written application for work, two from former employers in Champaign and one in another community; that defendant had by telephone called up the boy’s most recent employer, a contractor in Champaign named Carrothers by whom the boy had been employed during the previous two months and was told by Carrothers that the boy was “absolutely O. K. as far as he was concerned. Good work. No trouble as to dishonesty and would rehire again if needed any help.” All the information the defendant then had concerning the boy was favorable and he was put. to work on Monday morning and remained at work during the balance of the week until Saturday evening when he received his week’s pay and went off duty for the week-end. To two letters of inquiry which had been written to the remaining former employers, no answer came during' the week and on Saturday evening, Mr. Daigh of the defendant company called another of the former employers, a restaurant man, by telephone, who responded that the boy was no good as a workman and was caught stealing. A memorandum was made of the incident at the time by Mr. Daigh at the bottom of which was entered the words “Discharged 7-17-43.”

Between nine and eleven o’clock on Saturday night, Edwards and three other boys got together in a billiard room and decided that they wanted to go to Rantoul to attend a Fair. They asked another boy to take them to Rantoul in his automobile but he refused. Edwards testified that he then said “Well, we might get in the garage down there and get a car. So we went down there and three of us crawled through the window that had the catch broken on it. ’ ’ This window was one of numerous windows in defendant’s garage, sales and service station building of dimensions 160 by 90 feet. 'The large windows consisted of a number of outer window panes with a smaller inner window in the center of each, so that when its metal frame was pulled open, there was a space of 18 to 20 inches in width through which the boys testified that they crawled onto a pile of automobile tires lying against the east inside wall of the building. The window sill was located about six feet above the ground and the boys assisted each other in getting up to the window sill and then to the upper inset window through which the entrance was made. There was a latch on the bottom of this particular inset window which had been broken and by use of sufficient force in pressing this window inward, the boys were able to open it and enter. When inside, they were able to force a padlock secured with hasps over staples holding a double sliding door in a locking device and to thereby roll the doors open and procure an exit for the cars. It further appears from plaintiff’s testimony that the boys tried plaintiff’s car door but found it locked; that they then took a Bell Telephone Company service car which was open, with keys in the lock, and drove it out of the doors and to Rantoul about fourteen miles distant; that they returned near midnight to Champaign; that they backed this car into a light post and bent the fender and then took it back to the Goodyear building and parked it; that they then decided to go in and see if they could get another car; that when they took the telephone company’s car, they had no thought of coming back for another car but “We brought it back because it wouldn’t go but forty miles an hour”; that after again unsuccessfully trying the doors on plaintiff Lathrop’s car, they went to the office room and found keys hanging over the manager’s desk; that they brought them out but could not fit them in the locks of the car doors; that they then found one of the car windows lowered from the top sufficiently for one of the boys to get a hand through and open the inside lever of the car door and thus gain entrance; that they finally found the key that would fit the ignition lock and drove the car from the garage to Tolono where they turned it over in a ditch, caught a bus back to Champaign and went to their respective homes in taxis; that oh the next morning at about eleven o’clock they were arrested by State police. Supplemental to the above testimony, the defendant placed the assistant manager Bussell Daigh upon tile stand who recited or corroborated in substance the above testimony; told of employing the boy; of the inquiries concerning the reliability of the Edwards boy and that before leaving the garage on Saturday evening, witness had gone the rounds and locked, all_of the doors and windows of the garage building. He testified that in the center window to which entrance was gained, the pin on the end of the rod installed to close the window had been broken and that a bolt was dropped through the slot to fasten the window in the same place that the pin on the end of the rod had been inserted. The boy Edwards testified that he was able to press this center window open with his hand. Mr. Altherr, manager, had been called by the plaintiff and testified in cross-examination under section 60 of the Civil Practice Act [Ill. Rev. Stat. 1943, ch. 110, par. 184; Jones Ill. Stats. Ann. 104.060]. All of the foregoing testimony except that of witness Daigh was part of the plaintiff’s proof and with such part of the testimony of the defendant’s manager Altherr given on cross-examination as was undisputed, was offered by and binding upon the plaintiff.

If the testimony, with reasonable inferences therefrom failed to show the negligence charged against the defendant, as alleged in the complaint, the trial court properly granted defendant’s motion for a judgment notwithstanding the verdict.

We will first rule upon the second assignment of error contending that the court was not authorized by the statute to deny the motion at the close, of plaintiff’s evidence and reserve decision on a motion for a directed verdict at the close of all the evidence until after the jury’s verdict and then grant judgment in favor of the defendant notwithstanding the verdict.

Section 68 (3) a, of the Civil Practice Act, Ill. Rev. Stat. 1943, ch. 110, par. 192 [Jones Ill. Stats. Ann. 104.068, subpar. (3) a], provides “Hereafter, in all civil actions at law, in courts of record, if either party shall at the close of the testimony, and before the case is submitted to the 'jury, request the court for a directed verdict in his favor, the court may reserve his decision thereon, and submit the case to the jury under proper instructions as to the law applicable to such case.” In construing this language, it is said in Goldberg v. Capitol Freight Lines, 382 Ill. 283, 296, 47 N. E. (2d) 67, quoting from Dixon v. Smith-Wallace Shoe Co., 283 Ill. 234, that “It may be further said that on a motion to direct a verdict at the close of plaintiff’s evidence of course only the evidence introduced by the plaintiff is to be considered, but if, after that, the defendant himself offers evidence and again offers said motion, the question whether there is sufficient evidence to sustain the judgment is to be determined from all the evidence in the record, as well that offered by the defendant as that offered by the plaintiff.” At page 295 it was there further said that “By its terms, the statute authorizes the reservation of such a motion made ‘at the close of thé testimony,’ but is silent as to one made at the close of plaintiff’s evidence. Obviously, had it been the legislative intent to extend the privilege to a motion made at the close of plaintiff’s case, appropriate language could easily have been added to effectuate such intention.” On a motion to direct a verdict at the close of the plaintiff’s evidence only the evidence introduced by the plaintiff is to be considered, but if, afterwards, the defendant himself offers evidence and again offers said motion, the question whether there is sufficient evidence to sustain the judgment is to be determined from all the evidence in the record. Dixon v. Smith-Wallace Shoe Co. (p. 243), supra. We hold that there is no force in the appellant’s contention that the trial court erred in reserving its ruling upon defendant’s renewed motion for a directed verdict at the close of all the evidence and in entering judgment non obstante veredicto, after having overruled the motion by defendant for a directed verdict at the close of the plaintiff’s evidence.

The appellant further contends that the plaintiff, by introducing proof of delivery of bailment to the bailee for hire and the latter’s failure to return the bailment in good condition upon demand with proof of damages, constituted prima facie proof of a cause of action, which required the defendant to then show affirmatively that it was free from negligence. This is a correct statement of the law. However, when proof of lack of negligence affirmatively appears from plaintiff’s testimony, the necessity for that proof by the defendant is obviated; although, upon motion for a directed verdict at the close of all the evidence, all of the testimony will be considered in the light most favorable to the plaintiff in passing upon that question.

This court discussed the applicable rule concerning prima facie proof in the case of Vigeant v. Nelson, 140 Ill. App. 644, which involved the loss of a trunk stolen from a hotel guest wherein the guest brought suit against the proprietor as a" bailee for hire, alleging negligence on the part of the defendant either in the care of the trunk or in the employment of servants. In Clemens on v. Whitney, 238 Ill. App. 308, 312, we said: “The effect of this rule is, not to shift the burden of proof from plaintiff to defendant but simply the burden of proceeding. The bailor must in all instances prove that the bailee was negligent* but when she. shows that the goods which she intrusted to the bailee’s care were not delivered upon demand she has made out a prima facie case or created a presumption of negligence which the bailee may overcome by offering evidence to show that it was not negligent, and if it produces such evidence, the bailor, in order to make out her case, must show that the bailee was, in fact negligent and that its negligence caused the loss or contributed thereto.” The rule was aptly stated by the late Mr. Justice Jones in Beard v. Haskell Park Bldg. Corp., 248 Ill. App. 467, 473, as follows: “It is well settled that a bailee for hire is not an insurer but owes the bailor a duty of ordinary care. As bailee, appellant was bound to exercise such care and diligence as every prudent man takes of his own goods of like character. Ordinary diligence means that degree of care, attention or exertion, which under the circumstances, a man of ordinary prudence and discretion would use in reference to the particular thing, were it his own property. . . . The bailor in all instances must prove that the bailee was negligent; but when he shows that the goods which he intrusted to the bailee’s care were not delivered upon demand he has made out a prima facie case or created a presumption of negligence, which the bailee may overcome by offering evidence to show that he was not negligent. . . . It is also the rule that where the failure to deliver is explained by the fact that the goods have been stolen, or destroyed by fire, and the bailee is no longer able to deliver them, the law will not presume negligence, and the onus or burden of proving the same is upon the bailor.” The above principles of law were again announced and approved by this court in the case of Beatrice Creamery Co. v. Fisher, 291 Ill. App. 495, 500, 10 N. E. (2d) 223. In the latter case quoting language from Langendorf Clothing Co. v. Fara, 272 Ill. App. 160, we said “under the old common law rule, a bailee was not liable for theft, acts of God, or the public enemy, or where the goods were taken by violence. This rule, however, has been modified, but the bailee is still not liable for theft unless this occurred through his negligence.”

While the question of whether or not the bailee was guilty of negligence is one of fact and not of law when the material evidence upon that issue is in conflict, we hold from the uncontroverted evidence in the record with all reasonable- inferences therefrom which evidence was adduced by the plaintiff supplemented by that of the defendant, that the bailment was stolen from the custody of the defendant from a locked garage during the nighttime by three boys none of whom were in the building in course of or during the time of any employment: that the uncontroverted evidence further shows that the defendant had locked and closed the building; that entrance was gained by the use of sufficient force to press open one of the windows during the nighttime by commission of the crime of burglary, whether the window catch was or was not broken, followed by forcing open the hasp and padlock on the doors; by procurement of the keys from the office and using sufficient force to gain entrance to plaintiff’s car and then driving it away without the knowledge or consent of the defendant. A bailee is not an insurer against loss or injury to the bailment, but is charged with the exercise of such reasonable care as an ordinarily prudent person would exercise under the same or like circumstances in the protection of his own property. While the Edwards boy gained previous knowledge concerning the structure and means of possible entrance and exit to and from the building, it cannot be said as a reasonable inference from this testimony nor from the failure of the defendant to gain advance knowledge as to his character from every possible source of inquiry before employing him under the particular facts and circumstances detailed in the testimony, followed by the burglarious entry of the boys into the building, constituted proof of actionable negligence or want of ordinary care on the part of the defendant.

We hold that the trial court properly reserved its decision upon defendant’s motion at the close of all the evidence and that in granting defendant’s motion for a judgment notwithstanding the verdict, under the facts and circumstances disclosed by the record, the court committed no reversible error. The judgment of the circuit court of Champaign county is therefore affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Bristow

text:
    People of State of Illinois, Defendant in Error, v. Homer Hensley, Plaintiff in Error.
    Heard in this court at the February term, 1945.
    Opinion filed March 5, 1945.
    Released for publication April 5, 1945.

      Cyril C. Endicott, of Carmi, for plaintiff in error.
    Albert McCallister, of Carmi, for defendant in error.
   Mr. Presiding Justice Bristow

delivered the opinion of the court.

The village of Norris City, situated in White county, Illinois, maintains two lakes from which it obtains its water supply. The lakes cover an area of approximately 30 acres and are located' about one mile southeast of the city. Separating these two lakes is a gravel highway, and connecting them is a concrete drain running under this highway. These reservoirs are fed by a stream that flows from the north and empties into the north lake. The city’s pumping station operates from the south lake.

The War Emergency Pipe Line, a corporation, maintains and operates a pipe line known as the “Big Inch” which pumps oil from Texas and Arkansas into the eastern states. The pipe line properties, consisting mainly of large oil receiving tanks, are situated on the southeasterly edge of the village of Norris City. Lying between these tanks and the lakes are the Illinois State Highway Route 1 and the right of way of the New York Central Railroad Company.

In order to conduct the oil through the pipe line, there are pumping plants which are located .at intervals of approximately every 50 miles. These so-called booster stations exert a pressure of 650 pounds, and the pressure at the terminal is 50 pounds. At each of the receiving tanks, there are installed valves and relief valves to take care of an emergency. They are designed and tested to provide safety for the character of operation involved in this occurrence.

It appears from the testimony, without dispute, that on August 4, 1943 one of the valves broke, the relief valve not working, it permitted some 6,000 barrels of oil to escape. Part of this oil found its way into the stream that ran into the north lake. But very little of the oil reached the south lake, and consequently the water supply of the village was affected but slightly. The north lake was almost completely covered with this escaped oil, which resulted in the destruction of many fish. The pipe line company employees removed the oil and fish without any cost to the village.

As a result of this occurrence, the plaintiff in error herein, Homer Hensley, was charged in an information filed in the county court of White county, with the violation of Ill. Rev. Stat. 1943, subpars. 2 and 3 of par. 466 of ch. 38 [Jones Ill. Stats. Ann. 37.415, subpars. 2, 3] which reads: “It is a public nuisance: (2) to throw or deposit any offal or offensive matter, or the carcass of any dead animal, in any watercourse, lake, pond, spring, well or common sewer, street or public highway; (3) to corrupt or render unwholesome- or impure the water of any spring, river, stream, pond or lake, to the injury or prejudice of others.” After entering his plea of “not guilty” to this charge, he was tried before a jury which found him guilty and assessed a fine of $100 and costs. In the course of this proceeding the plaintiff in error entered the usual motions for directed verdict, arrest of judgment and new trial, all of which were overruled and judgment entered on the verdict. The plaintiff in error comes to this court for redress. The record discloses the following undisputed factual situation in addition to the foregoing: Homer Hensley, at the time of the occurrence in question, was superintendent of the War Emergency Pipe Line Company, and in charge of the Morris City terminal. He was not present when the break occurred, but immediately upon being notified of it, directed the men under him to proceed with all dispatch to arrest the flow of the oil and repair all of the damages that were caused. So far as the record reveals, Hensley had nothing to do with the purchase of the valves in question; had nothing to do with their inspection or installation, or that he was even on duty or in charge of the plant when the pipe line was constructed; nor that he had had any notice or warning that the valves were in a defective condition. The testimony further shows that these valves are always tested by the manufacturer before leaving the factory and that there is no practical way of testing them after installation. The evidence further indicates that the old valves were replaced with a better type and the prosecution makes the argument in their brief that this fact gives rise to the implication that criminal neglect must have been involved in this oversight. But nowhere does it appear that Hensley was charged with the duty of making any such exchange or that he knew of any superior type of valve.

There were four witnesses produced by the State. Not a one of these knew anything about the matter, except the presence of oil on the lakes, and that they were able to trace it to the broken pipe. They knew nothing that connected Hensley with the occurrence, except that he was superintendent of the pipe line company.

Counsel for plaintiff in error argue earnestly that the trial court was in error in not allowing their motion for a directed verdict at the close of the prosecutions case. Disposing of this contention favourably to the defendant, as we do, makes it unnecessary for us to consider other assigned errors.

The only case cited by either side passing upon the section of the statute involved in this proceeding is Seacord v. People, 121 Ill. 623. In this case the defendant was a railroad yardmaster and the owner and operator of a fertilizer plant. He had a contract with his railroad company wherein he acquired all of its dead animals which accumulated in the course of its shipping operations. Frequently, Seacord would have more carcasses on his premises than his fertilizing plant could handle, and as a consequence they would be permitted to remain there too long. He was indicted under Ill. Rev. Stat. 1943, subpar. 1 of par. 466, ch. 38 [Jones Ill. Stats. Ann. 37.415, subpar. 1] which reads: “It is a public nuisance to cause or suffer the carcass of any animal, or any offal, filth or noisome substance, to be collected, deposited, or to remain in any place to the prejudice of others.” Upon conviction, the defendant appealed to the Supreme Court. That court in affirming the conviction had the following to say: “It is immaterial whether the defendant intended the prejudicial result to others or not, if such result flows from his unlawful act of collecting and depositing the noisome substances. It is presumed that every sane man intends the natural and probable consequences of his acts.”

It is obvious that Seacord committed an overt act that could easily be adjudged unlawful by permitting dead animals to remain on his premises a considerable length of time. The inquiry follows: What unlawful act did Hensley commit that brings him within the purview of that decision? We think none. The unfortunate breakage of the valve in the pipe line and the consequent disgorging of 6,000 barrels of oil was solely the result of an accident. Throwing some light on the question involved here, there appears in the brief of the plaintiff in error the following citations: Voss v. Chicago Sandoval Coal Co., 165 Ill. App. 565; Barrett v. Mt. Greenwood Cemetery Ass’n, 159 Ill. 385; Thomas v. Ohio Coal Co., 199 Ill. App. 50. These cases all hold that under a state of facts quite similar to those involved in the instant case the corporation must respond in damages in a civil action, but in none of them does it appear that the superintendent of such corporation has been held jointly liable. Certainly, if there is no basis for civil liability against the plaintiff in error, there can not be any basis for criminal responsibility.

It appears that the plaintiff in error did make one grave mistake which probably accounted .for the jury returning a guilty verdict, namely, on the 25th day of June 1943, one of the State’s witnesses, Herman Dothager, an official of the, Department of Health of Illinois, had a conversation with Hensley wherein Hensley was asked to put in some traps Or a skimming plant which would prevent the escape' of oil in the event of a breakage in the pipes, and Hensley’s reply thereto was: “If we ruin the lake we. will buy the damn thing and let the taxpayers build another one.” Defendant does not deny that he made such a statement, but does testify that he discussed this proposed improvement with his company, and that it would cost $100,000, and that the company rejected the suggestion because of the enormous cost. The states attorney in his brief and argument addresses almost his entire attention to this statement made by the defendant, and argues most earnestly that because of such it brings him within the terms of the statute upon which this prosecution is predicated. We must concede that Hensley’s reply to the inspector was most impertinent and discourteous, but we have not been persuaded that such is a basis for criminal action. We are of the opinion that the proof wholly fails to show any criminal conduct on the part of the plaintiff in error that makes him vulnerable to the charges contained in the information under consideration. The trial court should have directed a verdict for the plaintiff in error at the close of the State’s case.

The judgment of the county court of White county is therefore reversed and the defendant discharged.

Judgment reversed.


author: Mr. Justice Culbertson

text:
    William T. Winn et al., Appellants, v. Augusta Underwood, per se, as Widow of Manfred Underwood, Deceased et al., Appellees.

      Heard in this court at the February term, 1945.
    Opinion filed March 5, 1945.
    Released for publication April 5, 1945.

      Grover E. Holmes, of Metropolis, and Chas. Durfee, of Golconda, for appellants.
    Bartley & Karber, of Shawneetown, for appellees.
   Mr. Justice Culbertson

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Hardin county, dismissing an amended complaint filed on behalf of appellants, William T. Winn, Nora Winn, Sadie McDowell, Nannie Shufflebarger and Nona Matheny (hereinafter called plaintiffs), and awarding judgment for costs against said plaintiffs in favor of appellees, Augusta Underwood, per se, as widow of Manfred Underwood, deceased, and as administratrix of the estate of Manfred Underwood, deceased, Frank Kamm, W. B. Guard, Dorcia Sturgeon, Viola Lindsey, Millard Underwood, Addie Mann, Effie Miller, Tressie Stell, and James Arthur Freyley (hereinafter called defendants).

The amended complaint for consideration on appeal alleged in substance that defendants, Frank Kamm, W. B. Guard, Fannie Underwood and Manfred Underwood (in his lifetime) “though pretending to limit their underground mining of minerals . . . knowingly, willfully and tortiously, without the permission or consent of the plaintiffs . . . and after having been expressly forbidden so to do, crossed over the boundary between the property under their control, and the premises owned by plaintiffs, and mined and removed from the premises of plaintiffs a large amount of fluorspar.” After the filing of the original complaint in the proceedings, as against the four individual defendants, one of the individual defendants, Manfred Underwood, died, and in the amended complaint the three surviving individual defendants and the administratrix of the deceased defendant, as well as the heirs-at-law of said deceased defendant, were made parties defendant.

The amended complaint consists of two counts. The first count alleges the ownership of the lands in question and recites incidental facts relating to the mining of fluorspar and, likewise, recites that the surviving original defendants and the deceased original defendant failed to make certain maps or charts, in accordance with ch. 93, par. 115, 1943 Ill. Rev. Stat. [Jones Ill. Stats. Ann. 82.115], and that, on the contrary, such defendants refused permission to plaintiffs to make a survey of the mining operations and the premises. The first count concludes with a prayer for judgment as against the surviving individual defendants, individually and collectively, in the sum of $20,000; and in another paragraph, for judgment as against the administratrix of the deceased original defendant in the sum of $20,000, such damages .to be paid plaintiffs in due course of administration of said estate; and in a separate paragraph, judgment as against the heirs-at-law of the deceased original defendant, for all damages sustained by plaintiffs not to exceed $20,000, and specifically requests that all property coming into the possession or under the control, or inherited by the heirs from the deceased original defendant, be impressed with a lien for all damages sustained by plaintiffs in consequence of the tortious and illegal acts of the deceased original defendant. The second count of the complaint realleges all matters originally alleged in the first count of the complaint, with the exception as to the recital as to maps and contains an additional paragraph specifically stating that the three surviving defendants have been and are trespassing upon the lands of the plaintiffs by entering upon and mining and removing minerals therefrom, contrary to the provisions of secs. 2, 3, 4 and 5 of ch. 94, 1943 Ill. Rev. Stat. [Jones Ill. Stats. Ann. 82.144^82.147]. In such count the plaintiffs, likewise, request that the court appoint a competent and suitable person to descend into the mine and make examinations and surveys to ascertain whether ore has been removed from the premises of the plaintiffs, and the amount thereof; that the expense of the examinations be added to the damages of plaintiffs; and, likewise, makes' a specific demand to recover from the defendants, in addition to other costs or damages sustained, special damages in the amount of $500.

To such complaint the defendants filed a motion to dismiss each of the two counts, upon grounds detailed in such motion. As to count one, the defendants moved for a dismissal on the ground, (First) That the heirs-at-law of the deceased original defendant, the administratrix of the estate of such deceased defendant, and the surviving individual defendants, could not be sued jointly for the reason that there would “have to be three separate judgments,” one against the surviving original defendants, one against the administratrix of the deceased original defendant, and one against the heirs of the deceased original defendant; (Secondly) On the ground that the plaintiffs have joined in a single count, three different causes of action against the defendants, and that none of the causes of action are connected with each other, so that it becomes necessary or proper that they should be litigated in the same proceeding; and (Third) That under section 12 of the Abatement Act of the State of Illinois [Ill. Rev. Stat. 1943, ch. 1, par. 12; Jones Ill. Stats. Ann. 107.012], the death of one of the original defendants worked a severance of the causes of action, and that the complaint could only proceed as against the original defendants surviving the deceased. The heirs of the deceased original defendant moved that the first count of the complaint be dismissed for the reasons, (First) That the complaint, as amended, did not contain an allegation that such heirs have real estate that came to them from the deceased defendant by descent, or that the personal assets of the estate of the deceased defendant were insufficient to pay the demand of plaintiffs; and (Second) For the reason that the heirs of said deceased defendant could only be liable for any debt of such deceased defendant in excess of the personal assets of the deceased.

All of the defendants moved that paragraph 8 of the first count of the amended complaint be stricken for the reason that the allegations are immaterial. That paragraph referred to the making of maps and the refusal of permission to make a survey. The defendants, likewise, moved that the first count be dismissed for the reason that the amended complaint is not an amendment of the original cause of action, but an attempt to bring an action under sec. 11 of ch. 59 relating to. Frauds and Perjuries (1943 Ill. Rev. Stat.) [Jones Ill. Stats. Ann. 55.11].

The three surviving defendants moved that count two of the complaint be dismissed for the reason that plaintiffs have joined in said count causes of action for damages under sec. 5 of ch. 94 on Mines, and under sec. 2 of ch. 94 on Mines, under the Illinois Revised Statutes. The latter objection noted is the only objection raised as to count two of the complaint by motion of defendants. There was no specific request for dismissal of the complaint. After consideration, . the trial court entered an order sustaining defendants ’ motion and dismissing the complaint, and reciting that plaintiffs were given leave to amend and elected to abide by their complaint, and the court thereupon ordered that plaintiffs take nothing by their complaint, and awarded costs as against plaintiffs. It is from such order of the court that plaintiffs now appeal. It is contended on appeal by plaintiffs that the court erred in sustaining the motion of defendants and in dismissing the amended complaint. %

It is notable that the only specific objection in the motion to dismiss count two of the complaint was to the effect that such count of the amended complaint should be dismissed for the reason that plaintiffs have joined in the count, two causes of action for damages, one under sec. 5 of ch. 94, and the other under sec. 2 of ch. 94 on Mines, under the Illinois Statutes. Under rule 12 of the Buies of Practice and Procedure [Ill. Rev. Stat. 1943, ch. 110, par. 259.12; Jones Ill. Stats. Ann. 105.12], and under clause 1 of sec. 43 of the Civil Practice Act [Ill. Rev. Stat. 1943, ch. 110, par. 167; Jones Ill. Stats. Ann. 104.043, snbpar. (1)], it is expressly provided that different breaches of duty, whether statutory, or at common law, or both, growing out of the same transaction, or based upon the same set of facts, may be treated as a single claim or cause of action and set up in the same count, and, similarly, that parties may plead as many causes of action, etc., as they may have, provided each is separately designated and numbered. On the basis of the motion" presented in the court below, which we are called upon to review, it is obvious that the court erred in ordering a dismissal as to count two of the complaint. The complaint recites only a single transaction and a single set of facts, which is quoted above in the statement of facts to the effect that the original defendants “knowingly and willfully, without permission or consent of plaintiffs, mined and removed a large amount of fluorspar from plaintiffs’ premises.” In view of the provisions of the Practice Act, the objection made by defendants to such second count of the complaint should have been overruled. On the basis of the record, this is not a situation of the character found in Randall Dairy Co. v. Pevely Dairy Co., 278 Ill. App. 350, where the separate causes of action under consideration averred in different paragraphs were wholly unrelated and were not based upon the same set of facts, and therefore, not joinable in the same count. The language of rule 12, to the effect that a party shall not be required to plead separately, causes of action arising out of the same transaction or based upon the same set of facts, but may make a single statement of the transaction or facts, and follow this with a statement of the various legal grounds upon which he claims to be entitled to recover under such facts, indicates clearly that it would not be ground for dismissal of count two that alternative claims for relief are stated upon a certain set of facts. .It was, therefore, erroneous for the court below to dismiss the complaint and enter .judgment for costs as against plaintiffs.

The complaint of plaintiffs in the instant case and the grounds for dismissal of count one raised a number of questions for consideration of this court, and for reconsideration by the trial court upon remandment of this cause. The motion of defendants insofar as it seeks to make an issue of the question of misjoinder of parties defendant, should have, under the Illinois Revised Statutes, ch. 110, par. 169 [Jones Ill. Stats. Ann. 104.045], pointed out specifically which designated misjoined parties be dismissed, or specifically point out other relief sought, or wherein the pleading, or division thereof, is insufficient. The amended complaint in this action, as a whole, seems to be based upon a single transaction, and prior to the death of Manfred Underwood, would have presented no serious complications. The major questions arose by reason of the death of said decedent and the joinder of his personal representative and the heirs of his estate. It would seem that better practice under the Civil Practice Act should require that the causes of action as against the surviving defendants, as against the administratrix of the estate of the deceased, and as against the heirs:at-law of the deceased original defendant, should all be separately stated in different counts (ch. 110, par. 157, 1943 Ill. Rev. Stat. [Jones Ill. Stats. Ann. 104.033]).

The parties to this proceeding seem to have been somewhat confused as to the proper procedure as against the various parties defendant and the right to maintain a single action as against such various parties. We had pointed out, in People for use of Pope County v. Shetler, 318 Ill. App. 279, that misjoinder of parties would not be ground for abating of an action, and we there referred to the case of Hitchcock v. Reynolds, 278 Ill. App. 559, in which case it was determined that a motion which failed to allege facts pointing out specifically, defects complained of,, and to ask for such relief as the nature of the defects may make appropriate is insufficient in law. In the Shetler case (supra) we pointed out that where a cause of action is stated as against separate defendants, a liberal construction of the provisions of the Practice •Act relating to the question of joinder of parties did not require that there be a dismissal under the facts in that case. Similarly, in the instant case, all of the parties defendant in this action, in the respective capacities in which they appear, may properly be made parties defendant and a dismissal of the complaint would not be justified on the ground of misjoinder. Under par. 148 of ch. 110 of the Civil Practice Act [Jones Ill. Stats. Ann. 104.024], it is expressly provided that any person may be made a defendant whom it is necessary to make a party defendant for a complete determination or settlement of any question involved in a case arising out of the same transaction or a series of transactions, regardless of the number of causes of action joined, and that each defendant need not be interested as to all the relief prayed for, or as to every cause of action included in ajay proceeding against him, and the fact that there would be separate judgments as against defendants does not require that separate actions be instituted if other conditions referred to in the Practice Act exist.

Under par. 178, ch. 110, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 104.054], it is expressly provided that where, by reason of death after the commencement of an action, a change or transmission of interest or liability -occurs and it becomes necessary or desirable that any person not already a party should be before the court, that the action does not abate, but that an order may be made that an heir, personal representative, etc., may be made a party in substitution for or in addition to any other party, and that the cause or proceeding may be carried on with the continuing-parties and the new parties, with or without change in title of the cause, and provides for certain procedure to bring such parties into the case. It appears that in the instant case the parties waived the requirements as to procedure and came into the case by motion for the purpose of attacking- the complaint on other grounds. Such parties, that is, the personal representative of the estate of the deceased, and the heirs-at-law of the deceased, are therefore in this cause as proper parties defendant.

Among- other grounds set forth in the motion of defendants are specific recitals to the effect that the amended complaint does not contain an allegation that the heirs have real estate which came to them by' descent, or that the personal assets of the estate of the deceased were insufficient to pay the demands of plaintiffs. A specific recital to the effect that real estate was inherited by the heirs-at-law of the deceased could profitably be incorporated in recasting the pleadings in the proceeding, and the prayer for relief similarly should request relief to the extent by which said heirs are legally obligated, that is, as to all property which they receive as heirs-at-law, with due regard to the consideration that the personal estate of the deceased is the primary fund for the payment of the debts and that real* estate inherited by the heirs may be subjected to such payment if it is made to appear that the personal estate is deficient to make the payment.

It appears that the allegations relating to the making of maps and charts, conld he treated as surplusage. The objection that the amendment was not an amendment to the original cause of action and was an attempt to bring an action under sec. 11 of ch. 59,1943 Ill. Rev. Stat. [Jones Ill. Stats. Ann. 55.11] seems to have no foundation, and we do not believe deserves any further consideration in this opinion.

This cause will, therefore, be reversed and remanded to the circuit court of Hardin county, with directions to such circuit court to set aside the judgment entered therein and to overrule the motion to dismiss the amended complaint, and to grant leave to defendants, if defendants desire to do so, to file motions requiring plaintiffs to plead in separate counts the claims and causes of action as against the surviving defendants, the administratrix of the deceased estate, and the heirs-at-law of the deceased original defendant.

Reversed and remanded, with directions.