text:
    Martin R. O’Brien, Administrator of Estate of James A. Doran, Deceased, Appellee, v. Chicago and North Western Railway Company, Appellant.
    Gen. No. 10,057.

      Opinion filed June 14, 1946.
    Rehearing denied October 3, 1946. Released for publication October 3, 1946.
    Drennan J. Slater, of Chicago, and Charles W. Hadley, of Wheaton, for appellant.

      Sears, O’Brien & Streit, of Aurora, for appellee; Barnabas F. Sears, and William C. O’Brien, both of Aurora, of counsel.
   Mr. Justice Bristow

delivered the opinion of the court.

This is an appeal by the defendant Chicago & North Western Railway Company, a corporation, from a $31,700 judgment rendered against it and in favor of the plaintiff, Martin R. O’Brien, administrator of the estate of James A. Doran, deceased, in an action under the Federal Employers Liability Act (45 USCA § 51 et seq.), and the Boiler Inspection Act (45 USCA § 22 et seq.).

Plaintiff’s amended complaint consists of two counts, and advances two theories for recovery of damages on account of the death of James A. Doran, hereinafter known as the deceased, while in the course of his employment as a. fireman by the defendant railway corporation.

In the first count plaintiff alleges, in substance, that the defendant railroad was negligent in that it did not furnish deceased "with a reasonably safe place to work, and as a result thereof, his health became endangered, and thereby set in motion a sequence of events which resulted in his death.

The second count is predicated solely upon defendant’s alleged violations of the provisions of the Safety Appliance Act, of the Boiler Inspection Act, and of Interstate Commerce Commission Rules 116 and 117, which, it is contended, were the proximate cause of the death of the deceased.

Each count contains numerous paragraphs and allegations which cannot be enumerated within the reasonable confines of this opinion, and are not material to a determination of the issues presented on this appeal.

The case was submitted to a jury which rendered a verdict of $31,700 in favor of plaintiff. The court, after denying defendant’s motions to withdraw the case from the jury, for judgment notwithstanding the verdict, for a new trial, and for a remittitur, entered final judgment, from which the defendant now appeals.

Inasmuch as the paramount issue presented on this appeal is whether or not the evidence and legitimate inferences therefrom support the verdict on the questions of negligence, proximate cause, and damages, this court proposes to set forth insofar as possible the uncontroverted material facts as appears from the record.

The Chicago & North Western Railway Company was engaged in interstate commerce, and James A. Doran, the deceased, was employed as a fireman for the said company on January 6, 1942, and had been so employed for close to 23 years.

On the night in question, deceased was the fireman on a 61 car freight train, which was hound in an easterly direction from South Pekin to Proviso, Illinois. At Malta, Illinois, some 50 miles from their destination, it was deceased’s duty to fill the water tank of the train. This operation involved the following procedure:

From the huge water tank along the right of way there extends a penstock, or long pipe, which is approximately 10 inches in diameter at the spout. The said penstock must be swung around over the water tank of the train, and placed above the manhole of the tender insofar as possible, so that water may be poured from the tank, through the penstock, into the manhole. The fireman must stand on the deck of the tender near the penstock and turn the wheel on it in order to release the water.

The particular penstock at Malta has been there for over 40 years, and could not be elevated or lowered. There was, moreover, a difference of 2 feet and 4 inches between the mouth of the penstock and the manhole, so that as the water poured from the penstock into the tender, it had to flow through space for that 2 feet and 4 inches. There are no lights on the deck of the tender or on the penstock to facilitate accurate pouring. Furthermore, it was admitted that even after 'the penstock is shut off there are still 30 gallons in the horizontal portion of it which just flow out.

Although defendant’s employees refused to say whether water would ever splash on the top of the tender, it was admitted that the action of the wind might deflect the course of the water to a certain extent, and that ice had been seen on the defendant’s locomotive in winter. A former fireman testified that in filling the tender from the water tank at Malta, water frequently spilled not only on the tender, but on the control box adjacent thereto, and in the coal bin as well. Moreover, on the night in question it was windy, and the temperature was 17 degrees below zero.

It was admitted by the other two members of the train crew that deceased got his feet wet from the operation at Malta, for when he returned to the cab of the J-4 engine, there was ice on the bottom of his overalls and the top of his shoes, and he appeared to be chilled.

The cab of this particular type of engine is cold due to the fact that the boiler is advanced and the wind keeps the hot air in front of the boiler, and because the apron between the tender and the locomotive fits loosely with canvas curtains as the only protection.

There is, however, a steam heated compartment used to furnish heat and shelter, referred to as the “dog-house,” which is located back of the engine and just beyond the coal bin.

Inasmuch as a substantial part of the events surrounding the death of the deceased must be gleaned and surmised from the circumstances, this court deems material the structural relation between the “doghouse” and the other parts of the train. The “doghouse” is 4% feet high, 4% feet wide, and 3 feet long, and is sunk about 18 inches below the level of the deck of the tender. It is reached by climbing over the coal bin and onto the deck of the water tank, and is entered from an opening in the side of this compartment. There is no passage way, or railing, or hand grip provided along the way from the engine cab to the “dog-house.” As one comes out of the “dog-house” to return to the engine cab, the top of the coal bin, over which one must climb, is 5 feet overhead. If, however, one goes from the “dog-house” up onto the deck of the tender, and from there climbs onto the coal bin, the distance from the deck of the tender to the top of the coal bin is only 3 feet and 8 inches. The foregoing facts have a bearing upon the probable conduct of the deceased, which will be hereinafter discussed.

Although one of defendant’s employees testified that the “dog-house” was for the use of the head brakeman only, the trainmaster admitted that the “dog-houses” on these tenders were used by the firemen. Moreover, it was the only sheltered place on the freight train, other than the caboose which was 61 cars away.

When the deceased returned to the cab of the engine after filling the water tank at Malta, he shoveled coal in the engine, and upon completion of this duty he went back to the “dog-house,” according to the testimony of the brakeman. His overalls were still wet and he appeared cold. He left his heavy overcoat, however, in the cab of the engine where he had placed it at the beginning of the run.

There is some conflict in the evidence as to whether or not deceased was told by his superior, the engineer Chapman, to go back to the “dog-house” and get warm. Deceased’s wife testified in rebuttal that the engineer had told her the day after the inquest that he had told the deceased to go back and get warm or else he would be sick, and that was the last he saw of him. This statement was denied.

On behalf of defendant it was claimed that by going to the “dog-house” deceased violated two company rules and a company bulletin requiring employees to remain at their posts, and forbidding anyone except the engine crew from entering the coal pit of the locomotive.

In any event, after deceased left to go to the “doghouse” he was not seen again until about 6:30 a. m. the next morning when his body was found frozen between the rails of the tracks about 25 feet east of the overhead viaduct near Proviso. He had a compound skull fracture, and one arm was severed and was lying on the rails. From all indications death was apparently instantaneous.

There were no eyewitnesses to what transpired after deceased left the cab of the engine and the sequence of events can only be surmised from the cir-cumstanees. At the time deceased left to go back to the “dog-house” the train was about 2 to 3 hours behind time and was traveling between 40 to 45 miles per hour. There was no stop scheduled until the final destination was reached. About 6% miles from the yards at Proviso there is a viaduct which is 7 feet 1% inches above the tender deck, and 3 feet 5 inches above the top of the “dog-house” and the coal bin. Approximately 305 feet west of this viaduct are telltales — wires suspended on a cable hanging down perpendicular over the tracks, the bottom of which are only five feet 6]4 inches above the deck of the tender.

Another relevant circumstance is that the suit box containing deceased’s civilian clothes which had been placed in the “dog-house” at the beginning of the run was found two days after the occurrence by a fireman, in the coal bin where it was interfering with the feeding of the coal.

The deceased was 47 years of age, in good health, and had been classified for his promotion to the grade of engineer. He left surviving a widow, and 3 children, Jack, 23; Jeanne, 20; and Marjorie, 17. His earnings for the preceding year were $2,600, or $216.70 per month, and his entire income went to his family except his necessary traveling expenses. Jeanne, the older girl, was and is working, Marjorie, a minor, had left high school to go into nurses training, but claimed that she had to go to work when her father died. Jack had a medical discharge from the army for wounds received in combat and is presently taking the shorter of two courses available to him under government provisions. The widow is now working as a saleslady, earning $24 per week at Sears, Roebuck & Company.

On the basis of the foregoing facts and circumstances the jury entered a verdict of $31,700 in favor of the plaintiff and the court entered judgment thereon.

The principal errors relied upon by defendant for reversal of the judgment are: that the trial court denied defendant’s motions to withdraw the case from the jury, for judgment notwithstanding the verdict, and for a new trial; that the evidence does not tend to support the cause of action; that the court erroneously admitted in evidence a photograph marked plaintiff’s exhibit 1; and that the court gave the jury certain objectionable instructions; that the verdict and judgment are grossly excessive; and that plaintiff’s attorney committed prejudicial error in his argument to the jury.

It is an established principle of law that where there are controverted issues of fact presented by the evidence upon which reasonable men may disagree, that the court must submit the case to the jury, Devine v. Delano, 272 Ill. 166, 179-182; Bailey v. Central Vermont Ry. Co., 319 U. S. 350, 354, 87 L. Ed. 1444, 63 Sup. Ct. 1062, and the verdict of the jury may not be set aside unless it is manifestly against the weight of the evidence. Therefore, this court will determine it, under these established principles, the trial court erred in denying defendant’s motions.

Plaintiff has in the instant case relied upon two theories for recovery, The first count of the complaint is predicated upon the provisions of the Federal Employers Liability Act. The relevant terms and provisions of sec. 1 of the Act (45 USCA § 51) are as follows:

“Every common carrier by railroad while engaging in commerce between any of the several States or Territories . . . shall be liable in damages'to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment.”

This court is cognizant of the liberalizing tendency of the courts and the legislature evident in the recent decisions and in the abolition of the doctrine of assumption of risk by the provisions of the 1939 amendment.

More particularly we refer to the case of Lavender v. Kurn, 66 Sup. Ct. 740, decided in March 1946, where the United States Supreme Court reversed.the Missouri Supreme Court in a case arising under the Federal Employers Liability Act and held the defendant railroad company liable where there was a scintilla of evidence from which it could be inferred that the end of a mail hook on one of the trains struck the switchman. The court stated at p. 744: “Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear.” Nevertheless, under this statute it is still incumbent upon plaintiff to prove that the defendant was negligent and that such negligence was the proximate cause in whole or in part of the injury or death. Tennant v. Peoria & P. U. R. Co., 321 U. S. 29, 88 L. Ed. 520, 32, 64 Sup. Ct. 409, 411 (1944).

In the case at bar, plaintiff contends that defendant’s negligence in not furnishing deceased with a reasonably safe place to work endangered deceased’s health, and that as a natural and probable result of that negligence, and with or . without consent of his superior, deceased endeavored to protect his health by seeking refuge in the only place of heat and shelter accessible to him. It is further contended that, while returning to his post of duty the deceased accidently fell or was knocked off the train, and that defendant, by the exercise of ordinary care might reasonably have foreseen that some injury might have resulted from his original negligence.

In support of the foregoing theory of liability, plaintiff has adduced evidence to show that the facilities deceased was required to employ in the performance of his duties as fireman endangered his health. He had to stand beside the manhole on the deck of the tender and turn the wheel of a 40 year old penstock which could not be elevated or lowered, while water flowed from the spout of the penstock into the manhole. Neither the deck of the tender nor the penstock was lighted, and the water had to flow through 2 feet of space on a windy night when the temperature was 17 degrees below zero. Moreover, it was admitted by defendant’s employees that after deceased filled the water tank at Malta he was wet, that the bottom of his overalls and the top of his shoes were covered with ice, and that he was cold and chilled.

The engine cab was cold and there was no place of heat or shelter available to the deceased except the “dog-house,” and to reach it necessitated going over the coal bin, without a railing or hand grip, while the train was in motion. This hazard was known to the defendant which allegedly had issued a bulletin forbidding persons other than members of the engine crew from going on the coal pile. The deceased, however, was a member of the engine crew and some of his duties required him to be on the coal bin. Moreover, if the credibility of the witness, Chapman, is to be weighed, it appears that deceased went to this “dog-house” with the consent, and at the suggestion of his superior who stated that he better go back and get warm and dry, or else he would be sick.

Irrespective of this consent, however, it is apparent that it was essential for the preservation of the health of the deceased that he go to the only available place of heat and shelter over this known hazardous route.

The court rejects as untenable defendant’s contention that the issue of whether or not the facilities furnished by the defendant constituted negligence, should not have been submitted to the jury, inasmuch as it was an engineering question, solely within the jurisdiction of the Interstate Commerce Commission.

The Supreme Court in Bailey v. Central Vermont Ry. Co., 319 U. S. 350, 353, 87 L. Ed. 1444, 63 Sup. Ct. 1062, stated:

“The debatable quality of that issue, (whether the facilities furnished by the employer constituted negligence) the fact that fair-minded men might reach different conclusions, emphasize the appropriateness of leaving the question to the jury. The jury is the tribunal under our legal system to decide that type of issue. (Citations) To withdraw such a question from the jury is to usurp its function.”

In Lilly v. Grand Trunk Western R. Co., 317 U. S. 481, 489, 87 L. Ed. 411, 63 Sup. Ct. 347, 352, the Supreme Court specifically stated that the jury could have found negligence from the facts in that case regardless of whether or not there was a specific rule of the I. C. C. governing the question.

It is clear to this court that the jury might have reasonably concluded from the evidence presented that the health of the deceased was endangered by performing his duties under these circumstances and with the available facilities, and, therefore, that the defendant was negligent under the terms of the Federal Employers Liability Act.

It was incumbent upon plaintiff thereupon to establish a causal connection between defendant’s negligence and the ensuing death of the deceased in order to impose liability upon defendant under the Federal Employers Liability Act.

On the issue of proximate cause the evidence is admittedly circumstantial, for no one saw deceased after he left for the “dog-house.” It is plaintiff’s theory that the deceased went to the “dog-house,” and on his way back to the cab where he had to perform further duties, he was knocked off by the viaduct or fell from the train.

To substantiate this theory plaintiff relies upon the following known facts: Deceased left for the “doghouse” 30 miles before the train passed the place where his body was found; the engineer told him to go back and get warm, and the only place to do so, other than the caboose, was the “dog-house.” Furthermore, the deceased had placed his suit box in the “dog-house” when the run was started at Pekin, he didn’t have it with him when he left the cab. to go to the “dog-house,” yet it was found two days later in the coalbin of this same locomotive, thereby indicating that he did go to the “dog-house,” remove the suit box, and was apparently on his way back when the accident occurred.

His intention to return to his post is further evident from the fact that he had left his heavy overcoat in the cab of the engine when he left to go to the “doghouse. ’ ’

That deceased was knocked down by the viaduct is deduced from the fact that the viaduct through which the train passed is only 3 feet 5]4 inches above the coalbin over which deceased had to climb on his way back to the cab, and deceased’s body was found 25 to 30 feet east of this overhead viaduct. Furthermore, the train was 2 to 3 hours late and was thundering downgrade between 40 to 45 miles per hour about the time it passed beneath the viaduct.

Defendant, however, contends that the known facts lend credence to another theory, i. e., that deceased brought the accident upon himself; that when he left the “dog-house” with the suit box he intended to go down from the tender to be in position to drop off at Elmhurst to make train connections for his home, and that he slipped off the train.

From the foregoing theorizing defendant argues that inasmuch as the circumstances admit two inconsistent interpretations it cannot be contended that the plaintiff has established a causal connection between the alleged negligence and the death of the deceased by circumstantial evidence so as to warrant submitting this issue to a jury.

In support thereof defendant has cited numerous cases enunciating the principles relating to circumstantial evidence. To discuss and distinguish these cases would not be feasible within this opinion, and would serve no useful purpose. This court is satisfied, however, that the prevailing rule with reference to circumstantial evidence has been stated lucidly and scholarly by the Supreme Court in Tennant v. Peoria & P. U. R. Co., 321 U. S. 29, 88 L. Ed. 520, 64 Sup. Ct. 409. At page 35 the Court stated:

“It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences. The focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury. It is the jury, not the court, which is the fact-finding body. . . . The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. . . . That conclusion, whether it relates to negligence, causation or any other factual matter, cannot be ignored. . . .”

This theory offered by defendant is, moreover, inconsistent with the fact that deceased’s overcoat was left in the engine cab where he had placed it at the outset of the trip, and it seems illogical that on a windy night, when the temperature was 17 degrees below zero, that a reasonable man would deliberately plan to leave for home without his overcoat. Furthermore, the record shows that the deceased had never before left the train before completing his duties.

In the Tennant case, supra, the court stated:

“. . . These and other possibilities suggested by diligent counsel for respondent all suffer from the same lack of direct proof as characterizes the one adopted by the jury. But to the extent that they involve a disobedience of duty by Tennant no presumption in their favor exists. . . .”

Nor can this court approve defendant’s contention that deceased’s conduct in going to the “dog-house” and attempting to return therefrom constituted an intervening cause unforseeable by defendant, which destroyed the chain of causation.

The requirements for a negligent act to be the proximate cause of an injury have been exhaustively examined by the Supreme Court of Illinois in Illinois Cent. R. Co. v. Siler, 229 Ill. 390, 394:

“In order to make a negligent act the proximate cause of an injury, it is not necessary that the particular injury, and the particular mariner of its occurrence, could reasonably have been foreseen. (City of Dixon v. Scott, 181 Ill. 161.) If the consequences follow in unbroken sequence from the wrong to the injury without an intervening efficient cause, it is sufficient, if at the time of the negligence, the wrongdoer might, by the exercise of ordinary care, have foreseen that some injury might result from his negligence. (Citation.) ”

In the instant case it is clearly forseeable that where an employee is required to perform duties which inevitably involve his getting splashed with water on a bitterly cold day, that his health would be endangered and he would go to the nearest place of heat and shelter and return thereafter to his place of duty. But for the original negligence of defendant in not furnishing adequate facilities for the deceased he would not have become wet, and it would not have been necessary or likely for him to undertake the hazardous journey to and from the “dog-house,” over the coalbin, nor would he have come to Ms death while in the act of returning to his post.

In Phillabaum v. Lake Erie & W. R. Co., 315 Ill. 131, the issue of intervening cause was discussed by the Illinois Supreme Court. In that case the carrier failed to equip his cars with couplers which would couple on impact, and the plaintiff, a switchman, went between the two cars to effect a couple by hand. While between them the engineer moved” the cars, catching plaintiff between the couplers and crushing Ms right foot. The defense was that plaintiff’s going between the cars was an independent intervening act, brealdng the chain of causation, just as it is argued here that deceased should have stayed in the “dog-house,” and that his attempted return to his post of duty was likewise an intervening act.

The court stated that proximate cause was a jury issue, and that, “In choosing the course of action he did, plaintiff in error selected one of several courses left open to him and to which he was driven by the fault of defendant in error in failing to properly equip its cars.”

It is the considered judgment of this court in the instant case that the evidence and reasonable inferences therefrom clearly support the verdict and the imposition of liability under the allegations of the first count of plaintiff’s complaint.

Inasmuch as defendant submitted no specific interrogatories nor asked for a special finding it is not clear upon which count the jury predicated the verdict, and this court will therefore consider the second count of plaintiff’s complaint and the evidence in support thereof.

Under count two of the complaint plaintiff realleges that defendant furnished the deceased with inadequate facilities, and asserts that this constituted a violation of the provisions of the Boiler Inspection Act. As a result of this statutory violation the deceased slipped on the ice on the deck of the tender and fell to his death, and therefore liability should be imposed upon defendant.

In support of this theory of liability plaintiff relies upon the case of Lilly v. Grand Trunk Western R. Co., 317 U. S. 481, 87 L. Ed. 411, 63 Sup. Ct. 347, where the plaintiff fireman fell from the top of a locomotive tender while he was putting a waterspout over the tender’s manhole, preparatory to filling the tank with water. Mr. Justice Murphy, speaking for a unanimous court stated at page 486: “The use of a tender, upon whose top an employee must go in the course of his duties, which is covered with ice seems to us to involve ‘unnecessary peril to life or limb’ — enough so as to permit a jury to find that the Boiler Inspection Act has been violated.”

In denying liability under this count defendant argues that the Lilly case, supra, is clearly distinguishable on the ground that there it was established that the fireman had been standing on the ice which had formed on the tender, whereas in the instant case it must be presumed first that water got on the deck of the tender, that ice formed therefrom, and that the deceased slipped on this ice and fell. Defendant insists that the law does not permit presumptions to be pyramided.

Presumptions are indulged in only in the absence of evidence.. The known facts and circumstances herein indicate that the water pouring from the pen-stock at Malta into the manhole of the tender had to pass through two feet of space, and that on a windy day it is hardly possible to fill the tank at Malta without getting water on the deck of the tender, and “sometimes a little gust of wind will move the pen-stock and you are in for a drowning.” Moreover, on the night of January 6 there was a high wind, and the temperature was 17 degrees below zero.

This court is satisfied .that under those circumstances the existence of ice on the deck of the tender can be regarded as an established fact. It is likely, furthermore, that the deceased did pass on this ice, inasmuch as the wind was from the northeast and would blow the water, which at that temperature would form into ice, toward that portion of the tender deck over which the deceased would naturally pass when coming out of the “dog-house” on his return to the cab of the engine.

Whether or not the deceased slipped on this ice, or was knocked off by the viaduct is not clear from the evidence, for the circumstances support both inferences. In support of the theory advanced in count 2, i. e., that deceased slipped on the ice on the deck of the tender, there are the following known facts: Deceased was an experienced fireman and had been over this run many times, and therefore knew of the viaduct; that the said viaduct could be plainly seen and that there were the tell-tales warning of its approach; that the deceased had but one injury — the skull fracture — which was likely to be caused from a fall, whereas if he had hit the viaduct it is likely that he would have had two serious injuries, one from the viaduct and one from the fall.

From the foregoing facts and circumstances the jury could reasonably have predicated liability under the second count of the complaint as well as the first count. As hereinbefore stated, it is , not the province of this court to reweigh the evidence' and set aside the verdict of the jury, for the right to trial by jury is “part and parcel of the remedy afforded railroad workers under the Employers Liability Act. . . . To deprive these workers of the benefit of a jury trial in close or doubtful cases is to take away a goodly portion of the relief which Congress has afforded them.” Bailey v. Central Vermont Ry. Co., 319 U. S. 350, 354, 87 L. Ed. 1444, 63 Sup. Ct. 1062, 1064.

It is, therefore, the opinion of this court that the trial court did not err in denying defendant’s motions for a directed verdict, and for judgment notwithstanding the verdict.

With reference to the alleged errors of the trial court in giving the instructions offered by plaintiff, this court holds that none of these instructions constituted reversible error.

Instruction 6, which instructs the jury to disregard the testimony of a witness who has falsely testified on a material issue, is accompanied by instructions which apprise the jury of the material issues and therefore complies with the requirements for such instructions set forth in Kavanaugh v. Washburn, 320 Ill. App. 250, and People v. Wells, 380 Ill. 347.

Instruction 12, which set forth the rule that plaintiff is not required to prove what deceased was doing at the instant of the injury, and that the law requires only the highest proof of which the case was susceptible, is objected to because it limited the jury’s consideration to the instant of injury in determining whether there was contributory negligence. Clearly this is a strained interpretation of the words and intended meaning of this instruction, which merely enunciates a rule of law obtaining since 1871. Chicago, B. & Q. R. Co. v. Gregory, 58 Ill. 272, 278.

Instruction 14, which states the rule pertaining to facts established by circumstantial evidence was approved by the Illinois Supreme Court in North Chicago St. R. Co. v. Rodert, 203 Ill. 413-415, where similar arguments as those urged by defendant were levelled against it and overruled by the court.

Instruction 15, the summarizing instruction, is objected to in the main because, it is contended, there is no evidence to support some of the charges in the complaint. This contention was expressly rejected by the Illinois Supreme Court in Schlauder v. Chicago & Southern Traction Co., 253 Ill. 154, 162.

Instruction 16 recited the provisions of the Federal Employers Liability Act, and it has been held that instructions in the law are permissible where, as in the instant case, they are accompanied by further instructions advising the jury of what plaintiff had to prove. Trust Co. of Chicago v. Ancateau, 317 Ill. App. 186, 198.

Instruction 17 recited the relevant provisions of the Boiler Inspection Act, and of Buie 153 of the I. C. C. pertaining to keeping the top of the tender free from foreign matter, including ice. This instruction is objected to on the ground that it invaded the province of the jury by stating that ice on the tender was a violation of the statute. Inasmuch as the instruction merely informed the jury what the law was under the interpretations of the statutes by the Supreme Court in Lilly v. Grand Trunk Western R. Co., 317 U. S. 481, 87 L. Ed. 411, 486, 63 Sup. Ct. 347, 351, it was proper and did not constitute reversible error.

Nor did the trial court err in admitting the plaintiff’s exhibit 1, which was a picture of the defendant’s employees in the course of their employment, revealing how the water flowed through the penstock into the tender of a locomotive. This exhibit came within the rule of Connors v. Winke, 200 Ill. App. 351, that photographs may be admissible, not as evidence within themselves, but for the purpose of enabling the jury to understand and apply the testimony.

Defendant’s contention that the argument to the jury by plaintiff’s counsel was inflammatory and prejudicial, and therefore warranted a new trial, is without merit. There is no showing that counsel persisted in any objectionable tactics. In fact, only one objection was made to his entire closing argument, and the jury was instructed to disregard that remark, which in terms was clearly distinguishable from the type of comments condemned by the court in the cases cited by the defendant.

In conclusion, it is the opinion of this court that the verdict submitted by the jury is not excessive, and, hence, is neither grounds for a new trial, nor warrants the issuance of a remittitur. The evidence on this issue reveals that the deceased was only 47 years of age and in good health. His average earnings as a fireman for the preceding year had been over $2,600, or $216.70 per month. Of this sum, he gave all of his earnings to his wife for the support of his family, consisting of three children, except such sums as were necessary for his travel expense. In passing upon the propriety of the amount of damages awarded, this court takes judicial-notice of the rise in the cost of living through the war years, the reduction in the purchasing power of money, and the excellent prospects for increased earnings by the deceased at the time of his death, in view of the fact that he had already been classified as an engineer by the defendant company.

The parties have argued at length and have ably presented in this appeal the facts and inferences therefrom, and the applicable statutes and decisions. It is the decision of this court that no error was committed by the trial court, and that the judgment entered therein should be affirmed.

. Judgment affirmed.


source: Caselaw Access Project

author: Presiding Justice Wolfe.

license: Public Domain

text:
    Howard L. Johnson for use of Joseph Marietta, Ap-pellee, v. Western Casualty and Surety Company, Appellant. Howard L. Johnson for use of Edith Marietta, Appel-lee, v. Western Casualty and Surety Company, Appellant.
    Gen. No. 10,071.
    opinion filed April 18, 1946;
    rehearing denied October 3, 1946; released for publication October 3, 1946.
    Poust & Moudry, Oscar W. Hoberg and Newhall & Givler, for appellant; Newhall & Givler, of counsel; B. Jay Knight, C. Sidney Van Duzer and Hollerich & Hurley, for appellees; Frederick H. Haye, of counsel.
   Opinion by

Presiding Justice Wolfe.

Not to be published in full.


text:
    Steve Kalanovsky and Bent Lavi, Appellants, v. Jacob Seppala, Appellee.
    Gen. No. 10,074.
    opinion filed April 18, 1946;
    rehearing denied October 3, 1946; released for publication October 3, 1946.
    Joseph A. Jadrich, for appellants; Seymour A. Greenblatt, for appellee.
   Opinion by

Presiding Justice Wolfe.

Not to be published in full.


author: Justice Bristow.

text:
    Leo A. Haberkorn, Appellee, v. E. W. Lawrence, Appellant.
    Gen. No. 10,077.

      opinion filed June 14, 1946;
    opinion modified and rehearing denied October 3, 1946; released for publication October 3, 1946.
    C. M. Granger and J. H. Beckers, for appellant; Frank J. Burns, for appellee.
   Opinion by

Justice Bristow.

Hot to be published in full.


author: Mr. Presiding Justice O’Connor

text:
    Morcelia Building Corporation, Appellee, v. Walter Larson, Appellant.
    Gen. No. 43,745.
    Opinion filed October 14, 1946.
    Released for publication October 28, 1946.
    Isaac M. Mills, of Chicago, for appellant.
    Martin S. Gordon, of Chicago, for appellee; Harry Shriman, of Chicago, of counsel.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action of forcible detainer against defendant to recover possession of “Apt. 339, 4047 N. Kenmore Ave.” The basis of plaintiff’s suit was that defendant had refused to pay the rent due November 1,1945, for that month. The case was heard before the court, the parties stipulating the facts; there was a judgment for possession in plaintiff’s favor. Defendant appeals.

The record discloses that plaintiff rented defendant an apartment in an apartment building. The apartment was leased on a month to month tenancy and plaintiff was required to maintain the apartment, furnishing “all of the necessary carpets, linens, beddings, etc., and maid service as is usual and customary in furnished apartment buildings.” It was stipulated that proper notices had been given to the parties in accordance with the regulations of the Office of Price Administration. That about October 16, 1945, a fire occurred in the apartment, caused considerable damage and “rendered the apartment untenantable.” The case was commenced on November 17, 1945 and went to trial January 30, 1946. Prom the time of the fire up to and including the date of the hearing “no repairs were made to the apartment, as a result of which the defendant during the month of” October, 1945, vacated the apartment with the exception” of some of his clothes which were left in one of the closets of the apartment and were there when the action was brought. “The defendant refused to pay rent for the month of November” contending that no rent was due because the apartment was untenantable and was unoccupied.

A great many authorities are cited and discussed by counsel for both parties but we think it would serve no useful purpose to discuss or refer to any but a few' of them because the facts in a number of the authorities cited are so different that the law there announced by the courts would be inapplicable to the facts in the case before us.

In Bentley v. Sill, 35 Ill. 414, where the premises were rendered unfit for the purpose for which they were rented by the act of an adjoining property owner and the landlord did nothing to remedy the matter, the landlord brought suit for two months’ rent, the court held defendant was «not liable and said: “We are satisfied it was the plaintiff’s duty, when Scammon raised his building, to meet the exigency and protect his tenant. The first fault was his, in not doing so; and he ought not to be permitted to recover rent for .the months claimed. This disturbance by Mr. Scammon was equivalent to an eviction, and suspended, to that extent, the payment of the rent.” And in Hayner v. Smith, 63 Ill. 430, it was held that where a lessee is wrongfully evicted by the lessor from a portion of the demised premises he was thereby excused from the payment of rent although he remained in possession of the remaining portion of the premises.

In the instant case plaintiff did not evict defendant from the apartment but plaintiff’s refusal to repair the damages caused by the fire kept defendant from occupying it. And we think that the fact that he left some clothes in one of the closets ought not to make any difference. There is no contention that the closet was so damaged by the fire that it could not be used but the rest of the apartment was. In The Automobile Supply Co. v. Scene-in-Action Corp., 340 Ill. 196, it was held that “The failure of a landlord to furnish heat for the demised premises in accordance with the terms of his covenant in the lease justifies the tenant in removing from the premises, and if he does so he is discharged from the payment of rent thereafter.” To the same effect is Carlson v. Levinson, 228 Ill. App. 104.

Since the apartment was rendered untenantable by the fire and since plaintiff did nothing to repair the damage so that the tenant might occupy it, we think defendant ought not to be required to- pay rent for the month of November, which was the basis of plaintiff’s action.

The judgment of the Municipal court of Chicago is reversed and the cause remanded with directions to dismiss the suit.

Reversed and remanded with directions.

Niemeyer and Feinberg, JJ., concur.


author: Mr. Justice Feinberg

text:
    Howard A. Heldt, Executor of Estate of Fredericka O’Brien, Deceased, Appellant, v. George D. Watts, Appellee.
    Gen. No. 43,738.

      Opinion filed October 14, 1946.
    Released for publication October 28, 1946.
    Stephen Lee, of Chicago, for appellant, and Howard A. Heldt pro se.

      ' Eckert & Peterson, of Chicago, for appellee; Owen Ball and Walter W. Boss, Jr., both of Chicago, of counsel.
   Mr. Justice Feinberg

delivered the opinion of the court.

Plaintiff O’Brien (now deceased) brought suit against defendant in the superior court of Cook county to recover damages for alleged negligent performance of a contract to move her house and transplant trees from one location in the town of Fox Lake, county of Lake, in the State of Illinois, to another location in the same town, and for conversion of some burlap delivered to defendant in Fox Lake, to be used in moving said trees. A judgment by default was entered on November 14, 1944, in favor of plaintiff and against defendant, for $3,000 and costs.

The complaint alleged that plaintiff is a resident of Cook county; that defendant is a “resident of Lake County,” and that “part of the arrangements giving rise to the transaction herein was made in Chicago, Cook County.”

The summons was directed to the sheriff of Lake county, and service obtained upon defendant in Lake county. No appearance was filed by defendant upon the return day of the summons, and no answer was filed to the complaint.

On October 16, 1944, plaintiff’s counsel mailed a notice to the defendant at Fox Lake, also to a firm of attorneys in Chicago, Hlinois, and to another firm of lawyers at Waukegan, Illinois, neither of which firms had filed any appearance in the cause. . The notice stated that on October 20, 1944, at the opening of court, a motion would be made to enter a default for want of an appearance and answer. The notice, with proof of service, was filed on the same day. On the return day of the notice, October 20, 1944, an order was entered, reciting: “On motion of plaintiff . . . It Is Ordered, that leave be given to Defendant, George D. Watts, until Thursday, October 31,1944, to plead or answer to Complaint herein”; that the motion for default be continued to the same date. It will be noted that this order was entered on motion of plaintiff and not on motion of defendant or any attorney for him. On October 31, 1944, on motion of solicitors for plaintiff, an order of default was entered against defendant, in which the recital appears that the defendant having failed to file answer or “otherwise make appearance herein,” the defendant was adjudged in default and the cause was set for hearing-on November 14, 1944, when the judgment order was entered.

On October 26, 1945, the defendant filed a special appearance “solely for the purpose of moving to vacate the judgment heretofore entered herein and to dismiss the case on the ground of want of jurisdiction, ’ ’ together .with a notice of motion to vacate said .judgment and his affidavit in support of the motion.

Counter affidavits by the plaintiff were filed, and a hearing was had upon the motion to vacate the judgment. On January 4,1946, the court entered an order vacating the judgment and dismissed the cause, from which order plaintiff appeals. Plaintiff O’Brien having died, the executor was substituted as plaintiff.

Tersely stated, plaintiff’s position in seeking a reversal of the order vacating the judgment is: (1) The trial court had no power, after more than one year following the entry of the judgment, to vacate it. (2) The defendant, having been served with a summons in Lake county, and having been given notice of the application for a default order, was obliged to appear before default and judgment and object to the venue in Cook county. Having failed to do so, he is now barred from attacking the judgment upon that ground. (3) The trial court had jurisdiction of the subject matter and the person because “part of the transaction is claimed to have occurred in Cook County,” and that under section 7 of the Civil Practice Act (Ill. Rev. Stat. 1945, ch. 110, par. 131 [Jones Ill. Stats. Ann. 104.007]) the venue was properly laid in Cook county. Section 7 of the Civil Practice Act provides:

“ ... every civil action shall be commenced in the county where one or more defendants reside or in which the transaction or some part thereof occurred out of which the cause of action arose . . . .” (Italics ours.)

The language— “or in which the transaction or some part thereof occurred out of which the cause of action arose ’ ’— did not exist in the Practice Act prior to the present Act adopted June 1933. This language has been interpreted by this court in LaHam v. Sterling Canning Co., et al., 321 Ill. App. 32. This court said:

“We do not think it was the intention of the legislature to fix venue at places where preliminary or incidental events occurred or where acts of inducement, as distinguished from the component facts of a cause of action, may have taken place. The word ‘transaction’ in the statute is modified by the phrase ‘out of which the cause of action arose’ and if no cause of action can be said to have arisen out of any of the events that occurred in Cook county, . . . then no part of the transaction can be said to have occurred here within the meaning of the statute. . . . Such dealings as are incidental or preliminary to the transaction between the parties themselves and which do not form the basis of the cause of action, cannot have been intended to constitute the transaction or a part thereof. ’ ’

In the instant case no part of the transaction out of which the cause of action arose occurred in Cook county. Admittedly, the defendant did not enter into the contract with the plaintiff in Cook county but in Lake county. The work to be done was in Lake county, and the negligent acts, if any, occurred in that county. The only showing plaintiff made by counter affidavits was to the effect that the estimate for the work, which led to the making of the contract, was mailed by the defendant from Fox Lake and received by the plaintiff in Cook county, and that subsequent to the commencement of the work the defendant wrote a number of letters from Lake county to the plaintiff in Cook county. Nothing else is shown to have transpired in Cook county up to the commencement of this suit. The mere mailing of these letters and the estimate can by no stretch of the imagination be deemed to constitute the transaction or a part thereof which gave rise to the cause of action, as having occurred in Cook county.

Plaintiff’s interpretation of section 11 of the Civil Practice Act [Ill. Rev. Stats. 1945, ch. 110, par. 135; Jones Ill. Stats. Ann. 104.011], which provides:

“Where the parties appear without making objection to the venue, no order, judgment or decree shall he deemed void for want of jurisdiction because rendered in the wrong venue.”

is not in harmony with the settled rules applicable to the interpretation of statutes. ■

It will be remembered that neither defendant nor anyone for him made any appearance in the action prior to the entry of the judgment. We must give heed to the language" of this section “Where the parties appear without making objection . . . .” The validity of such judgments under this section is clearly limited to cases where the parties appear and do not object, and is not applicable to those who make no appearance when sued in the wrong venue. The maxim, “ expressio unms est exclusio alterius,” is applicable here in the construction of this section. A statute, it has been said, is to be so construed, if possible, as to give sense and meaning to every part, and this maxim was never more applicable than when applied to the interpretation of a statute. Chicago Dock & Canal Co. v. Garrity, 115 Ill. 155, 165; Townsend v. Gash, 267 Ill. 578, 584; Dorris v. Center, 284 Ill. App. 344, 347. Applying this maxim to the construction of section 11, it is clear that the legislature intended to exclude those who do not appear, from the binding effect of such a judgment, and intended that where the parties do not appear, no order, judgment or decree shall be deemed valid when rendered in the wrong venue and not in accordance with the requirements of the statute as to venue.

The legislature clearly meant to protect a defendant against being sued in a county arbitrarily selected by a plaintiff, wherein the defendant does not reside, or in which no part of the transaction occurred which gave rise to the cause of action. If a plaintiff could so select the county to bring his suit, obviously a defendant would be entirely at his mercy, since such an action could be made oppressive and unbearably costly. That is why the legislature also provided in section 7 of the Practice Act [Ill. Rev. Stat. 1945, ch. 110, par. 131; Jones Ill. Stats. Ann. 104.007]:

... if venue is based on residence in an action to recover money or damages, a judgment may be rendered against a defendant not residing xvithin the county only when judgment is also rendered against a defendant residing within the county, unless the defendant not residing within the county appears generally, and defends the action on its merits, and not then unless it appears from the record or the evidence that the defendant residing within the county was joined with prohable cause and in good faith for the purpose of obtaining a judgment against him and was not joined solely for the purpose of fixing the venue of the action in that county.”

Thus, we observe the many safeguards the legislature has thrown around the right of a defendant to be sued in the proper county. The courts cannot interfere with this protection given by the legislature. A judgment such as this one is void for want of jurisdiction of the party. The defendant did not submit himself to the. jurisdiction, but throughout, he limited his appearance and his motion for the sole purpose of moving to vacate the judgment, which cannot be regarded as a submission to the jurisdiction of the superior court.

The trial court, having been satisfied that the action was commenced in the wrong county, upon the application of either of the parties, could have changed the venue to Lake county and transferred the action to that county. (Ill. Rev. Stat. 1945, ch. 146, par. 36 [Jones Ill. Stats. Ann. 107.353].) Neither of the parties made such an application under the statute, and since the defendant was under no obligation to make such application, the court was not required to change the venue and plaintiff cannot now be heard to complain.

Complaint is made that the trial court did not afford plaintiff the opportunity, when requested, to present witnesses to prove that the transaction, or some part thereof, occurred in Cook county. The court had afforded plaintiff ample opportunity to meet the facts set up in the affidavit of defendant on the motion to vacate. Plaintiff filed counter affidavits, and the matter was submitted to the court upon the affidavits so filed. After the court had indicated its opinion in the matter, plaintiff made an offer of proof and requested an opportunity to present witnesses, naming them. The witnesses so named were those whose affidavits had already been filed. There was nothing indicated in the offer of proof that anything more than was set up in the counter affidavits filed by plaintiff could he shown.

The order of the superior court vacating the judgment and dismissing the action was correct- and is affirmed.

Affirmed.

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


text:
    Gaylord J. Case and Vincent Marzano, Appellants, v. Morris De Woskin et al., N. B. McNeill and Eileen Van Guilder, Appellees.
    Gen. No. 43,768.

      Opinion filed October 14, 1946.
    Released for publication October 28, 1946.
    Bernard Yedor and Perlman, Goodman, Hecht & Chesler, all of Chicago, for appellants.
    Francis L. Brinkman and John W. Golosinec, both of Chicago, for appellees.
   Mr. Justice Feinberg

delivered the opinion of the court.

This appeal is by Gaylord J. Case, plaintiff, and Vincent Marzano, cross plaintiff, from an order of the circuit court entered on December 6, 1945, striking the counter complaint of Marzano as to N. B. McNeill and Eileen Van Guilder, defendants to the counter complaint, and dismissing them as parties defendant to said counter complaint.

It appears that Case brought an action in the circuit court against Marzano to recover commissions, as a licensed dealer and broker, in the sale of a number of shares of stock in a building corporation known as 5050 Sheridan Building Corporation. He alleged in his complaint that Marzano agreed to pay him a five per cent commission and that the sale of the stock having brought $110,000, there was due him the sum of $5,500; that Marzano had tendered him $2,500 in full payment, which he refused to accept, and prayed for judgment for the amount of his claim.

To the complaint of Case, Marzano filed an answer, denying liability.

It further appears that one Morris DeWoskin filed an action in the superior court of Cook county against Fred Rodgers, et al., to recover commissions arising out of the sale of the same stock in the same building corporation. This latter action was transferred by the superior court of Cook county to the circuit court, and on November 22, 1944, the two actions were consolidated for hearing in the circuit court. DeWoskin filed an amended complaint in the consolidated cause, to which he made Fred Rodgers, Marzano and Case defendants and prayed for judgment against them in the sum of $5,000 for the commission allegedly due him on account of the sale of such stock. Marzano answered, denying liability to DeWoskin for any commissions.

On June 8, 1945, Marzano filed a counter complaint and alleged, inter alia, that sometime prior to February 15,1943, plaintiff Case informed him that he might have a purchaser for fifty-one per cent of the outstanding stock of the building corporation, and that if a sale were consummated he was to be paid a commission of $2,500; that subsequently such stock was sold and the commission of $2,500 became payable, which he (Marzano) was ready and willing to pay to the person or persons entitled thereto; that DeWoskin, Rodgers, N. B. McNeill and Eileen Van Guilder claim that they, as cobrokers, are entitled to receive a part of said commission, and because of such asserted claim and so that the defendant would not be subjected to the defense of other claims, and for a complete determination of the controversy herein, it was.necessary that said persons be made parties and that summons issue in the consolidated cases, and prayed that Rodgers, McNeill and Van Guilder be made parties. No affirmative relief against the counter defendants was sought or prayed for in said counter complaint.

In view of the contentions made, it becomes necessary to set forth in chronological order the proceedings appearing in the common-law record. No evidence is presented in this record by any report of proceedings.

On June 26, 1945, Van Guilder entered her appearance, and on September 7, 1945, McNeill entered his appearance. On September 11, 1945, an order of default was entered against Rodgers, Van Guilder and McNeill, as defendants to the counter complaint of Marzano, and directed that the counter complaint be taken as confessed against them. A default was entered against Rodgers, as defendant to the complaint of DeWoskin, and directed that said complaint be taken as confessed.

On September 25, 1945, in the consolidated cause, the court entered a judgment in which it made findings of fact in twelve numbered paragraphs and ordered a judgment to be entered in favor of Case, against Marzano, for $2,400 and no costs; and in favor of De-Woskin,- against Marzano, in the sum of $250 and no costs; and in favor of DeWoskin, and against Rodgers, for $5,000 and no costs; and directed that separate executions issue on each of said judgments.

Finding No. 10 in said judgment order set forth that Marzano was not indebted to any other person, firm or corporation for any services rendered or claimed to have been rendered in connection with the sale of the capital stock of the building corporation. Finding No. 12 was to the effect that neither Rodgers, McNeill nor Van Guilder have any claim against Marzano or "any person for whom he was acting, or against DeWoskin or Case, for alleged services rendered in connection with the sale of the stock, and that the only persons entitled to any commissions or compensation for any services rendered or claimed to have been rendered in connection with the sale of said stock are Case and DeWoskin, as set forth in the other findings in said judgment order.

On October 1, 1945, Van Guilder filed a notice and petition to vacate the default entered against her, and on October 5, 1945, McNeill likewise filed a notice and petition to vacate the default entered against him. On November 26, 1945, an order was entered denying the motions of Van Guilder and McNeill to vacate the orders of default, and on the court’s own motion the judgment order of September 25, 1945, was amended by striking out findings numbered 10 and 12. On December 6, 1945, on motion made by defendants McNeill and Van Guilder to strike the counter complaint of Marzano, the court entered an order striking said counter complaint as to them and dismissing them as party defendants to said cause.

It is contended that the court was without jurisdiction to enter the order of December 6, 1945, because more than 30 days had elapsed after the entry of the judgment of September 25,1945. It is also argued that even if the court is deemed to have had jurisdiction, the counter complaint should not have been stricken because it was in the nature of an interpleader and, as a pleading, satisfied all of the elements "required of a complaint in the nature of a bill of interpleader.

The first contention is without merit. "Within 30 days after the judgment order of September 25, 1945, on notice and petition, a motion was made to vacate the orders of default theretofore entered. The court had jurisdiction to hear and determine the motion. On November 26, 1945, the original judgment order of September 25,1945, was, by an order entered, amended, by striking out the findings above set forth in paragraphs numbered 10 and 12. This left the counter complaint undisposed of and unadjudicated as to defendants McNeill and Van Guilder against whom no final judgment had been entered.

There was no appeal from the judgment order of September 25, 1945, nor from the judgment order amending the same. The appeal is only from the order of December 6, 1945, striking the counter complaint, as already noted.

There are two classes of interpleaders; one, regarded as pure bills of interpleader, to maintain which the following four elements must exist:

“(1) The same thing, debt or duty must be claimed by both or all the parties against whom the relief is demanded;

“(2) All their adverse titles or claims must be dependent or derived from a common source;

“ (3) The person asking the relief, the plaintiff, must not have or claim any interest in the subject-matter; and

“ (4) He must have incurred no independent liability to either of the claimants, that is, he must stand perfectly indifferent between them, in the position of a stakeholder.” City Nat. Bank & Trust Co. v. Dunham, 306 Ill. App. 354, 362 (and cases there cited).

By the judgment order of September 25, 1945, not appealed from, the court adjudicated that Marzano had incurred an independent liability to plaintiff Case and to plaintiff DeWoskin for commissions arising out of the sale in question. Therefore Marzano fails to satisfy the fourth element above noted, necessary to successfully maintain a bill of interpleader. City Nat. Bank & Trust Co. v. Dunham, supra.

In the other class of interpleaders, a complaint in the nature of a bill of interpleader but not purely a bill of interpleader, must seek affirmative relief against one or more of the parties defendant to the complaint as well as an adjudication as to the claims of some of the other defendants to such complaint, even though no affirmative relief against the. latter is sought. This distinction between the two classes of interpleaders is pointed out in Foerster v. Enzenbacher, 178 Ill. App. 551, 555. In the instant case, no affirmative relief is sought against any of the defendants to the counter complaint of Marzano. Hence it cannot be regarded as a complaint in the nature of an interpleader. Foerster v. Enzenbacher, supra.

The present Practice Act (Smith-Hurd Ill. Stat., ch. 110, par. 149, § 25 [Jones Ill. Stats. Ann. 104.025]) does not change the settled rules of equity governing bills of interpleader. City Nat. Bank & Trust Co. v. Dunham, supra.

The appeal by plaintiff Case is wholly without merit. How his interest is affected by the order striking the counter complaint is not shown or argued in plaintiff’s brief. He obtained a judgment, from which he did not appeal. His claim was therefore fully adjudicated.

The circuit court was not without jurisdiction to strike the counter complaint, and for the reasons stated the court was correct in striking it. The order of the circuit court is accordingly affirmed.

Affirmed.

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


author: Mr. Justice Niemeyer

text:
    Ella R. Hopkins, Appellant, Grace C. Gilleland et al., Co-Appellants, v. Paul C. Loeber et al., Defendants. Maurice Berkson et al., Trading as Sonnenschein, Berkson, Lautmann, Levinson and Morse, Appellees.
    Gen. No. 43,732.

      Opinion filed October 14, 1946.
    Released for publication October 28, 1946.
    Shulman, Shulman & Abrams, of Chicago, for appellant ; Meyer Abrams, of Chicago, of counsel.
    J. Edward Jones, of Chicago, for co-appellants.
    SONNENSCHEIN, BERKSON, LAUTMANN, LEVINSON & Morse, of Chicago, for appellees.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Plaintiff and intervenors appeal from an order allowing the claim of petitioners for legal services and expenditures in the amount of $4,007, together with interest to the date of the entry of the order amounting to $2,943.07, and directing the receiver of the trust involved herein to pay to petitioners the total sum of $6,950.07 from and out of the funds in his hands or to be in his hands as receiver of the trust.

In 1930 bankruptcy proceedings were pending against Leight & Company in the United States District Court for the Northern District of Illinois. A composition offer was made to creditors under the terms of which the assets of the bankrupt were to be turned over and delivered to three trustees — Paul F. Loeber, Charles E. Fox and Albert W. Swain, under a trust agreement and upon terms and conditions to be approved by the bankruptcy court. This offer of composition was accepted by the creditors, approved by the court, and the trust agreement executed ón December 23, 1930. At that time certain claims, attorneys’ fees and expenses of administration were allowed and paid out of the assets of the estate and moneys produced by certain investors, who received certificates of interest in the trust for the funds advanced by them. The plaintiff was one of the contributors to that fund and in 1941 she instituted suit against the trustees. That suit is still pending. In the course of proceedings therein a receiver was appointed for the trust, hereafter referred to as the Leight trust. May 12, 1942, petitioners, doing business as Sonnen-schein, Berks on, Lautmann, Levinson & Morse, filed their petition alleging that during the years 1930 and 1931 they were retained by the trustees to render legal services in connection with the creation of the trust and its affairs; that they rendered services for which they charged the trustees the sum of $4,500, made up, as appears from the affidavit of claim made by one of the members of the firm, and exhibits attached to the petition, of statement of February 10,1931: “Services in connection with creation of trust — $3,500,” and an additional statement of March 27, 1931 for services rendered from the date of the creation of the trust, or, from February 10, 1931, the date of the first bill, to March 27, 1931 — $1,000. Claim is also made that petitioners expended on behalf of the trust $184.20 for records, etc.; that the trustees paid on account $677.20, leaving a balance of $4,007 due petitioners, which indebtedness the trustees have acknowledged and promised to pay as soon as funds were available. Plaintiff and intervenors, resisting this claim, filed separate answers. A hearing was had before the court, evidence was heard and the order appealed from was entered.

On the trial petitioners stated that they were not relying on a quantum meruit for services rendered prior to the formation of the trust; that they were relying on ratification by the trustees afterward. This ratification was the approval of petitioners’ bill at a meeting of the trustees on February 11,1941. Plaintiff took the position that no services rendered prior to the creation of the trust (December 23, 1930) could be the basis of a valid claim against the trust assets, and consequently no subsequent ratification by the trustees could give them validity. The interveners adopted the position of the plaintiff and also objected to the claim for services rendered after the formation of the trust, asserting among other objections that this claim was barred by the statute of limitations and by laches.

The member of the petitioning firm who performed the services rendered and appeared on the hearing in support of the claim, testified that the firm had rendered services to Loeber in 1930 in connection with the Leight bankruptcy and were paid by him for such services the sum of $500; that he, the witness, was then requested by Loeber in the late summer of 1930 to draft the trust agreement which was to be submitted with a composition offer by Leight and under the terms of which Loeber was to be a trustee; that he prepared the trust agreement and then waited until informed that the necessary orders had been entered in the bankruptcy court; that he filed no appearance and was not of record there and took no part in those proceedings until informed that it was proper for the trustees under the trust agreement to receive from the trustee in bankruptcy or the bankrupt the various assets which comprised the trust property; that the trust was created by the execution by the trustees of the trust agreement on December 23, 1930; that he could not give the dates on which the services concerning which he had testified to were rendered; that it was utterly impossible for him to determine any division of time between the services rendered by him in the matter of the creation of the trust and other services between December 23, 1930 and February 10, 1931; that no claim was filed in the bankruptcy court for the services rendered by them in the creation of the' trust; that none of the investors in the trust who put in their money and got certificates were told that there was an outstanding claim against the bankrupt for fees of $3,500 that was not scheduled in the bankruptcy court and for which no petition or claim was filed there.

After the lapse of more than 10 years after the services were rendered, petitioners seek in this proceeding to charge the assets which were turned over to the trustees under, the composition agreement with an undisclosed claim for $3,500 and interest for services rendered in the creation of the trust at the request of a person not even a trustee when petitioners ’ services were engaged. The only authority cited in support of the claim is Reichwald v. Commercial Hotel Co., 106 Ill. 439, 448, which relates to a charge against a corporation of debts created by its promoters in the organization of the corporation and in view thereof. This case has no application to the matters before us. The composition when approved by the court became a contract between the bankrupt, or debtor, and his creditors. In re Leight & Co., 139 F. (2d) 313. The rights of the respective parties were fixed by that agreement. The trust agreement here involved was presented to the court and the creditors as a part of the composition offer. Its preparation was an obligation resting upon the bankrupt. In the case of In re Fogarty, 187 Fed. 773 (C. C. A. 7), the court said: “If they (the bankrupt and his backers) are successful in having the composition confirmed, they certainly should not be permitted to take their attorney’s fees out of the composition fund which they have deposited to stand in lieu of the estate.”

'A trustee has nó'authórity until the execution of the agreement cheating the trust, and his authority thereafter is limited by the terms of the trust agreement. No provision of the trust agreement gives authority to the trustees to charge the trust assets for services rendered to or expenses incurred by any of the trustees prior to the creation of the trust. The investors in the trust and the creditors of the bankrupt became parties to the composition upon an implied if not a direct representation that the assets to be turned over to the trustees for the benefit of the trust beneficiaries were subject to no lien, claim or demand except those stated in the offer of composition, including the proposed trust agreement and the order of confirmation by the court. Petitioners are chargeable with knowledge of the law governing the situation and of the fact that their claim for services in the creation of the trust was not included in the composition but was hidden and concealed from the persons to be benefited by the trust fund. To now permit petitioners to charge the trust assets with services which were not properly chargeable against such assets when rendered, would constitute a fraud upon the beneficiaries of the trust, and, since the trustees could not bind the trust estate for services rendered prior to the execution of the trust agreement, they were equally powerless to bind the trust estate by subsequent approval for payment of a bill for such services, or by any other action that they might take.

The last services rendered by the petitioners were rendered on March 27, 1931. Claim for these services was filed May 12, 1942, more than 10 years after the alleged cause of action accrued. Petitioners insist that within the 10 years, to-wit: on January 4, 1933, the trustees acknowledged their indebtedness to petitioners and promised to pay same. This alleged acknowledgment is based upon a letter dated January 4, 1933 addressed to Mr. Levinson (one of the members of the petitioning firm) and signed by Paul C. Loeber, as managing trustee, stating: “Your letter of the 31st ultimo has been received in reference to the Leight trust account. ... If you will bear with us just a little longer you will receive a check for our account.” This letter is defective as a toll of the statute of limitations for two reasons. Mr. Levinson’s letter of the 31st ultimo was not introduced in evidence and there is nothing in the record to indicate what accounts were referred to in that letter. Waldron v. Alexander, 136 Ill. 550. The burden of affirmatively showing this rested on petitioners. Secondly, the letter is signed by Loeber as managing trustee. He was one of three trustees who must act in their joint capacity, and there is nothing to indicate that the remaining trustees were concurring in Loeber’s letter. Warner v. Rogers, 255 Ill. App. 78, 83; Maton Bros., Inc. v. Central Illinois Public Service Co., 356 Ill. 584, 592.

Petitioners having failed to establish a valid promise by the trustees to pay the indebtedness, the running of the statute was not tolled and the claim as to all of the services rendered and the money expended is barred by the statute of limitations. Chapter 83, sec. 16 [par. 17], Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 107.276]. In fixing the period in which claims are barred by laches equity follows the law and as a general rule adopts the period of limitation fixed by the statute. Wall v. Chicago Park District, 378 Ill. 81, 96. For this reason there can be no recovery for services rendered the trustees after the creation of the trust and expenditures made in their behalf.

The order appealed from is reversed.

Reversed.

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


text:
    People of State of Illinois ex rel. Frank Siegal, Appel-lee, v. Harry K. Rogers et al., Appellants.
    Gen. No. 43,742.
    Opinion filed October 14, 1946.
    Rehearing denied October 28, 1946. Released for publication October 28, 1946.
    Peter J. Struck, of Chicago, for appellants; Thomas A. Matthews, of Chicago, of counsel.
    McCarthy, Toomey & Reynolds, of Chicago, for ap-pellee; Frank A. McCarthy and John E. Toomey,. both of Chicago, of counsel..
   Mr. Justice Niemeyer

delivered the opinion of the court.

The Village of Skokie (formerly the Village of Niles Center), its president, trustees, treasurer and clerk, and the members of its board of fire and police commissioners, respondents in a mandamus action, appeal from a judgment directing the reinstatement of the relator to the position of member of the police department of the village and the payment of his salary as patrolman from the date of his discharge to the date of the judgment order.

Since 1906, through the transactions involved herein, the ordinances of the village (sec. 53) provided: “The Village Police shall consist of the regularly appointed Village Marshal, and such other deputy Marshals and special policemen as may be from time to time appointed by the President and Board of Trustees.” At the regular village election of April 17, 1945, the Fire and Police Commissioners Act (Article 14 of the Revised Cities and Villages Act [Ill. Rev. Stat. 1945, ch. 24, par. 14—1 et seq.; Jones Ill Stats. Ann. § 21.1367 et seq.]) was adopted. At that time section 11 of the Act [Ill. Rev. Stat. 1945, ch. 24, par. 14 — 11; Jones Ill. Stats. Ann. 21.1377], so far as it is applicable here, provided: “No officer or member of the fire or police department of any municipality which adopts this article, who has held that position for more than one year prior to the adoption of this article by that municipality, . . . shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense.” The section also provided that all officers and members of either the fire or police department of any municipality holding their positions by virtue of one of the methods specified in the section, which included the method above quoted, “are city officers and shall be entitled to the protection afforded by this article. ’ ’ On April 28, 1945, before the members of the board of the fire and police commissioners had been appointed and qualified, relator, who had been acting as a patrolman and member of the police department of the village since 1935, was discharged by the chief of police. No written charges were filed against him and no opportunity was given him to be heard in his own defense.

Mandamus is an extraordinary remedy, and one petitioning for such writ must show a clear and undoubted right to the relief demanded. People v. Board of Review of Cook Co., 351 Ill. 301. "Where one seeks restoration to an office he must show the legal existence of the office and that he is an officer de jure as distinguished from an officer de facto. People v. Coffin, 282 Ill. 599; McNeill v. City of Chicago, 212 Ill. 481. In instituting this action relator recognized the rule just stated. In the petition he sets out the provisions of the village ordinances relating to the police department, including the section quoted above, and asserts that he “has been g, regular member of the Police Department of the village since 1935, having been then appointed by the President and unanimously confirmed by the Board of Trustees; that he occupied the office or position of patrolman constantly from 1935 up to the 28th day of April, 1945,” when he was discharged by the chief of police. Respondents traversed these allegations. On the trial relator proved only that he was appointed to the police department by the mayor about May 1934. It is conceded that there is no evidence of any appointment of relator by the board of trustees. His position here is that “After the adoption of the Fire and Police Commissioners’ Act by a municipality a discharged policeman is . not required to show that he is a de jure officer of the village in order to secure reinstatement.”

The statute as originally passed brought within its protection officers and members of the fire or police departments of any village adopting the Act “who shall have been such for more than one year prior to the passage of the Act.” In construing that provision in a mandamus action the Supreme Court in Moon v. Mayor of City of Champaign, 214 Ill. 40, held “that it was not sufficient to entitle appellant to the writ that it should appear from the petition merely that the petitioner was de facto a member of the police department of the city,” and that it was “essential that the petition should show that he was an officer de jure and not merely a de facto policeman.” In 1937 the section was amended by extending the protection of the Act to officers or members of the fire or police department “who shall have been such for more than one year prior to the adoption of this Act by such city, village or incorporated town,” and by providing that regular employment as an officer or member of the fire or police department for more than one year shall constitute such officers or members municipal officers. In a mandamus action to compel reinstatement to the police department of a village under the 1937 amendment the Appellate Court of the second district in People ex rel. Mitchell v. Armspach, 314 Ill. App. 573, held that the relator, not having beeli appointed by action of the president and board of trustees, as provided by the ordinances of the village there involved, was not a de jure officer and was not entitled to the writ.

Relator relies very strongly upon the case of Reed v. City of Peoria, 318 Ill. App. 271, also decided by the Appellate Court of the second district. We find no conflict between the two decisions. In the Reed case it was held that the purpose of the 1937 amendment was to remove an ambiguity caused by a reference in the original Act to the passage of the Act, instead of to the adoption of the Act by the city, village or incorporated town, and (p. 277), “Also it was the intention of the legislature, by the amendment to give city firemen and policemen the status of municipal, or city officers, to the extent of making them eligible to apply to the courts for an examination and protection of their rights under the Act. ’ ’ In that case certain firemen were seeking reinstatement, asserting their right to office by virtue of having been regular members of the fire department for more than a year prior to the adoption of the Fire and Police Commissioners Act by the City of Peoria. Respondents, contending that the petition should show that relators were legally appointed as de jure officers, moved to dismiss the petition. In granting the motion the trial court stated that the 1937 amendment did not “obviate the necessity of an ordinance creating a fire department and designating the number of members thereof to make operative the provisions of the Act, and constitute the members de jure officers.” The Appellate Court reversed the judgment, holding that the allegations of the petition met the objections raised against it. The right .of a de facto member of the fire department to reinstatement was not considered.

The board of trustees having failed to join with the president of the village in the appointment of the relator as a member of the police department, he was merely a de facto member of the department, subject to discharge at will, and not entitled to reinstatement. People ex rel. Mitchell v. Armspach, supra.

The judgment is reversed and the cause remanded with directions to enter a judgment denying the writ.

Judgment reversed and cause remanded with directions.

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


text:
    Christine Marie Scarpaci, minor, by Frank Scarpaci, father, Appellee, v. City of Chicago, Appellant.
    Gen. No. 43,762.

      Opinion filed October 14, 1946.
    Released for publication October 28, 1946.
    Barnet Hodes, Corporation Counsel, for appellant ; J. Herzl Segal, Head of Appeals and Review Division, and Adam E. Patterson, Assistant Corporation Counsel, of counsel.
    David S. Chesrow and Reuben L. Benjamin, both of Chicago, for appellee; Reuben L. Benjamin, of Chicago, of counsel.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Defendant appeals from a judgment entered against it in an action to recover for personal injuries sustained as a result of the falling of a metal stop sign erected and maintained by the defendant in the parkway between the sidewalk and the curb in Polk street near its. intersection with Wood street in Chicago.

Plaintiff’s claim is based upon the violation of defendant’s duty to maintain its public streets - and highways in a reasonably safe condition of repair by suffering the stop sign to exist in a defective and dangerous condition for a long period of time. Defendant’s sole contention on appeal is that the stop sign was erected and maintained by the city in the exercise of governmental functions pursuant to the mandate and authority of the statutes of the State, and therefore it is not liable for any negligence in failing to properly maintain the sign.

Section 86 (art. 12) of the Uniform Act Regulating-Traffic on Highways (ch. 95½, par. 183, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 85.215]) provided that “local authorities with reference to . . . highways under their jurisdiction may designate through highways and erect stop signs at specified entrances thereto or may designate any intersection as a stop intersection and erect like signs at one or more entrances to such intersection.” Section 30 (art. 3 of the same Act [Ill. Rev. Stat. 1943, ch. 95½, par. 127; Jones Ill. Stats. Ann. 85.159]) directs that “Local authorities in their respective jurisdiction shall place and maintain such traffic-control devices upon highways under their jurisdiction as they may deem necessary to indicate and to carry out the provisions of this Act or local traffic ordinances or to regulate, warn, or guide traffic. All such traffic-control devices hereafter erected shall conform to the State manual and specifications.” Section 27 of article 23 of the revised Cities and Villages Act (Ill. Rev. Stat. 1943, ch. 24 [Jones Ill. Stats. Ann. 21.1658]) authorizes cities “To regulate traffic and sales upon the streets, sidewalks, public places, and municipal property.” In compliance with these statutes the defendant erected a stop sign consisting of a hexagonal metal plate about 18 inches across and weighing about 25 pounds, fastened by four screws to a rod or pole about 6 or 7 feet in length set perpendicularly in a base about 18 inches in diameter, placed in the parkway between the sidewalk and curb on the east side of Wood street about 15 feet south of its intersection at right angles with Polk street, which defendant had designated as a stop or through street. For three or four months before the injury to plaintiff this plate was loosely fastened to the pole by only one screw which had worn thin. On the night of the accident it fell, apparently of its own weight, striking the foot of plaintiff, a child seven years of age, who was standing in the parkway near the sign.

Regulation of traffic on public streets under the police power conferred upon a city by the legislature, is the exercise of a governmental function as to which the city is not liable for misuser or nonuser. Evans v. City of Kankakee, 231 Ill. 223; Hanrahan v. City of Chicago, 289 Ill. 400; Roumbos v. City of Chicago, 332 Ill. 70; Gebhardt v. Village of LaGrange Park, 354 Ill. 234; City of Evanston v. Wazau, 364 Ill. 198; LePitre v. Chicago Park Dist., 374 Ill. 184; Merrill v. City of Wheaton, 379 Ill. 504; Kirk v. City of Muskogee, 183 Okla. 536, 83 P. (2d) 594; Bradley v. City of Oskaloosa, 193 Iowa 1072, 188 N. W. 896; Auslander v. St. Louis, 332 Mo. 145. This exemption does not extend to liability of the city for damages resulting from its failure to keep its public streets reasonably safe and free of dangerous conditions or obstructions. In Village of Palestine v. Siler, 225 Ill. 630, action was brought against the village to recover for injuries sustained from contact with an uninsulated electric wire in the public street. To the declaration .the village filed a special plea averring that it as a municipal corporation was authorized under the police power of the State to provide for lighting its public streets, and that pursuant to such authority it was operating an electric light plant, with poles and wires on the public streets, and that the injury complained of in plaintiff’s declaration was occasioned while the defendant was lighting the lamps along its streets pursuant to its authority under the police power of the State. In affirming the action of the trial court in sustaining a demurrer to this plea the Supreme Court said that the defendant had misapprehended the gravamen of plaintiff’s cause of action as set up in the declaration; that “The wrong done to the plaintiff, as there alleged, was not merely in the negligent operation of the electric light plant, but the charge is, and the evidence proved, that the deceased came to his death by reason of the defendant’s omission of duty in keeping its public streets and sidewalks free from obstructions and the deadly wires of its light plant. Clearly, the charge is not merely that the defendant negligently maintained and operated its electric light plant, but is that it suffered and permitted uninsulated wires to obstruct the public street so as to render it dangerous .to persons passing along the same. The section of the statute conferring powers upon cities, villages and towns, (section 62 of chapter 24,) imposes the duty upon the municipal authorities to regulate the use of streets and ‘prevent and remove encroachments or obstructions upon' the same. ’ The declaration expressly charged the defendant with a violation of the duty of keeping its streets free from obstructions and dangerous obstacles, and it was no answer to those allegations to say by the pleas that the defendant maintained the electric light plant in its public, municipal capacity.” Under substantially similar facts the court in Goetzke v. City of Chicago, 174 Ill. App. 446, 450, said: “The declaration in this case alleges that through the negligence of the defendant the electric light wire fell into the street and thereby came in contact with the plaintiff, etc. This is an allegation of a violation by the defendant of its duty of keeping its streets free from obstructions and dangerous obstacles, and if sustained by the evidence entitled the plaintiff to recover under the rule announced in Palestine v. Siler [225 Ill. 630], although the defendant maintained the electric light plant in its public municipal capacity.” In Curtis v. City of Paris, 234 Ill. App. 157, cited by defendant, the court had under consideration an action for injuries sustained by a passenger in an automobile when she was thrown from the car as the driver was avoiding a rope barrier placed across the street by the board of health to create a quiet zone.. The court said (p. 163): “Where a dangerous condition exists in the street of a city, whether caused by the action of the city in the exercise of its police power, by unauthorized persons, or by the servants of the city acting in a ministerial capacity, if the city has notice of such dangerous condition or of such facts and circumstances as would by the exercise of reasonable diligence lead a prudent person to such knowledge, and a sufficient time has elapsed to have given the city an opportunity to have remedied such dangerous situation, the city is liable for an injury resulting from such dangerous situation to a person who is in the exercise of ordinary care for his own safety. City of Chicago v. Stearns, 105 Ill. 554.”

The rule laid down in the cases cited is in accord with the weight of authority. In 25 Am. Jur., Highways, § 358, it is said: “The rule which is supported by the weight of authority and seems to be more consistent with ¡fundamental principles is that public liability for injuries resulting from defective streets or other public ways may be predicated upon unsafe conditions resulting from acts done by public officers in the exercise of the police power or in the performance of governmental duties, where the responsible highway authorities are chargeable with negligence in permitting such conditions to continue, after notice, actual or constructive, of their existence.” Authorities supporting this position are Hillstrom v. City of St. Paul, 134 Minn. 451; Emery v. Philadelphia, 208 Pa. 492; Twist v. City of Rochester, 37 App. Div. 307, 55 N. Y. S. 850, 855, affirmed in 165 N. Y. 619; City of Circleville v. Sohn, 59 Ohio St. 285, 305; Sheets v. City of McCook, 95 Neb. 139; Kirk v. City of Muskogee, 183 Okla. 536, 83 P. (2d) 594, cited by defendant; Aaronson v. City of New Haven, 94 Conn. 690,110 Atl. 872. In Hillstrom v. City of St. Paul, supra, the court sustained recovery of damages for the death of a boy who was struck by a falling pole which the city had erected in one of its streets and used solely for the purpose of supporting a telegraph wire and an alarm box of the fire alarm system belonging to the city fire department. This pole had rotted through where it entered the ground. The court said (454): “While the city is not liable for negligence of the officers of its fire department in performing their official duties, it is liable for negligence in failing to keep its streets safe. And we see little room for making a distinction between a dangerous condition of the street caused by a third party, for whose acts the city is not responsible, and a dangerous condition caused by a department of the city, for whose negligence the city is not liable. It is the duty of the city to exercise reasonable care to keep its streets free from danger, and it possesses the power to do whatever is necessary to accomplish this purpose. If, through negligence, it fails to perform this duty, and injury results from a dangerous condition in one of its streets, the city cannot avoid liability by showing that negligence in earing for an instrumentality used in the performance of a governmental duty is what brought about the dangerous condition.” In Kirk v. City of Muskogee, supra, action for injuries sustained in an automobile collision at a street intersection was based on the alleged failure of the city to properly maintain a stop sign as a warning to automobilists approaching the intersection. The court held that, the maintenance of the traffic sign being an exercise of a governmental function, there was no liability of the city for failure to maintain it, and said (597): “Since there was no legal obligation upon the City of Muskogee to keep the traffic sign standing at the corner of K and Houston Streets in said city, no liability accrues when said sign is removed or broken, outside of the liability for injuries directly caused by it as a defect in the street as distinguished from a traffic regulator.” (Emphasis ours.) The case of Aaronson v. City of New Haven, supra, involved an action for injuries sustained by driving against a so-called silent policeman, consisting of a heavy circular base and an upright post, surmounted by a sign and a suitable light. This device, placed at or about the center of the intersection of two city streets, had toppled over and lay in the traveled part of the highway when plaintiff came in contact with it. The Supreme Court said: “The city is required to exercise reasonable supervision and control of silent policemen on its highways, but no breach of legal duty giving rise to a cause of action can occur unless and until the highway becomes defective. And then the city is not liable unless it has either failed to use reasonable care in discovering the existence of the defect, or has failed after actual notice or constructive notice to use reasonable care in repairing it.” '»

When the stop sign involved herein, through the absence of proper fastening of the metal plate to the sign post or pole, became dangerous to persons using the public street or the parkway, it became an obstruction or defect in the street for the continuance of which the defendant became liable after reasonable notice, even though the sign post was an instrumentality used by the city in the performance of a governmental function.

The judgment is affirmed.

Affirmed.

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


author: Presiding Justice O’Connor.

text:
    In re Estate of Harris Katz, Deceased. Irwin Katz, Executor of Will of Harris Katz, Deceased, Appellant, v. Claim of Buick and Guild and Carl M. Pedersen and Company, Appellees.
    Gen. No. 43,735.
    opinion filed October 14, 1946;
    released for publication October 28, 1946.
    Freeman & Freeman, for appellant; Earl Freeman, of counsel; John S. Wegerzyn and David H. Kraft, for appellees; David H. Kraft, of counsel.
   Opinion by

Presiding Justice O’Connor.

Hot to be published in full.


text:
    People of State of Illinois, Defendant in Error, v. Gerald L. K. Smith, Plaintiff in Error. People of State of Illinois, Defendant in Error, v. Don Lohbeck, Plaintiff in Error.
    Gen. Nos. 43,756, 43,757.

      opinion filed October 14, 1946;
    rehearing denied October 28, 1946; released for publication October 28, 1946.
    Maximilian J. St. George and Albert W. Dilling, for plaintiffs in error; William J. Tuohy, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, W. S. Miroslawski, Joseph A. Pope and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


text:
    Fannie May Scoville, Appellee, v. Thomas Paper Stock Company, Appellant.
    Gen. No. 43,765.
    opinion filed October 14, 1946;
    released for publication October 28, 1946.
    Cohon & Goldstein, for appellant; Bell, Boyd & Marshall, for appellee; Charles E. Herzog, of counsel.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


author: Justice Feinberg.

text:
    Reba L. Goodman, now known as Reba L. Dubelman, Appellant, v. Ephraim F. Goodman, Appellee.
    Gen. No. 43,758.
    opinion filed October 14, 1946;
    rehearing denied October 28, 1946; released for publication October 28, 1946.
    Irving Eisenman, for appellant; Lipman & Lochtan, for appellee; Harry G. Fins, of counsel.
   Opinion by

Justice Feinberg.

Not to be published in full.