text:
    Mary Mayberry, Appellee, v. Irene Cage and Harold C. Costello, Appellants.
    Gen. No. 42,873.

      Heard in the third division of this court for the first district at the October term, 1943.
    Opinion filed April 26, 1944.
    Rehearing denied May 12, 1944.
    Cassels, Potter & Bentley, of Chicago, for appellants; L. H. Vogel, Harold G. Blake and Anthony S. Ras, all of Chicago, of counsel.
    George Yellen and George E. Sankstone, both of Chicago, for appellees.
   Mr. Justice Burke

delivered the opinion of the court.

Mary Mayberry filed a complaint in the circuit court of Cook county against Irene Cage, Harold C. Costello and Iroquois Management Company, a corporation, to recover for personal injuries claimed to have resulted from an accident which she asserted occurred on May 23, 1942 in the Oriental theatre, Chicago, while she was a patron. The complaint charged the defendants with negligence in maintaining and permitting an obstruction in the passageway between two rows of seats in the theatre, and improperly lighting the aisles. It was charged that as a proximate result of such alleged negligence plaintiff was caused to fall and suffer injury. The obstruction referred to was a ventilator under the seats of the front of the two rows of seats. The case was discontinued as to the Iroquois Management Company. A trial before the court and a jury resulted in a verdict in favor of plaintiff for $1,500. Defendants’ motions for judgment notwithstanding the verdict and for a new trial were overruled. Judgment was entered on the verdict and this appeal followed. Plaintiff’s theory of the case is that the ventilator “being raised above the floor, constituted an obstruction and danger to patrons in the theatre and to this plaintiff, and that the same constitutes negligence on the part of defendants in the operation and management of their theatre.” Defendants’ theory is that they were not guilty of the negligence charged in that there was sufficient light in the aisles, the ventilator did not create a dangerous condition, and any claim of insufficient lighting is untenable because the lighting had no connection with plaintiff’s alleged fall.

The entrance -to the Oriental theatre is on the north side of Randolph street. The stage is to the west. This theatre shows motion pictures. The aisles, running in an easterly and westerly direction, lead from the lobby toward the stage and there are rows of seats between the aisles. On May 23, 1942 at about 11:50 a. m., plaintiff, accompanied by Michael J. Drummond, paid the admission charge and entered the theatre. They walked down aisle four to row four, counting the rows of seats from the rear. She turned in row four to the left, Drummond following, and went about five seats, believing that there were two vacant seats. It was dark, as a motion picture was being shown. Only one seat was available and she started to return to the aisle. Going in between the rows of seats, she moved sideways to her left. She did not turn around, but came out sideways, moving to her right, her face towards the screen. People were seated in back of her, which gave her very little room. She testified that as she came out she stumbled over the ventilator some four or six inches above the floor, situated in back of the row in front of her; that she fell out into the aisle; that as she fell she tried to arrest her fall with her left hand and fell crossways into the aisle, fracturing her left arm. She intended to convey the impression that the ventilator was four to six inches above the floor upon which she was moving. Photographs of the place of the occurrence were introduced as plaintiff’s Exhibits 1 and 2. A drawing of the scene was received in evidence as defendant’s Exhibit 1. Plaintiff asserts that her Exhibit 1 shows the ventilator upon which she fell, and also shows that it is raised as she testified. She maintains that her Exhibit 2, showing the aisle for a number of seats back, also shows that the ventilator is raised as she testified. Defendants’ Exhibit 1 is a drawing made for and on behalf of the defendants by Arthur Land from notes taken at the theatre and then transcribed to the exhibit. It was not until an hour and a half after she fell that any report of the occurrence was made to the persons in the place. In that time she and Mr. Drummond occupied seats and viewed the picture and performance. When complaint was made of the fall she made no reference to any obstruction in the passageway between the seats, but complained only of the supposed condition of insufficient lighting. When this complaint was made, employees of the theatre went to the place pointed out by her as the point where she fell and showed her the aisle lights, which were burning. The photographs and drawing show that the passageway to the row of seats where she was moving was at a higher level than the passageway to the row of seats immediately to the front. The exhibits also show that the ventilator was located under one of the seats in the forward or fifth row. Michael J. Drummond testified in behalf of plaintiff. He identified the photographs as accurately showing the place of the occurrence. He also described the point of the alleged fall and of seeing plaintiff in the aisle after she had fallen. After the accident plaintiff was sent to the office of Dr. Emil C. Duval by the persons in charge of the theatre. He caused x-rays to be taken. A metal splint and cast were placed upon her arm.

Defendants urge that the court erred in refusing to direct a verdict for them at the close of all the evidence and in denying their motion for judgment notwithstanding the verdict. In passing on these motions, the sole question presented is whether, admitting the evidence in favor of the plaintiff to be true, that evidence, together with all legitimate conclusions and inferences, fairly tends to sustain her cause of action; and we have no right to pass upon the credibility of the witnesses, to consider any purported impeachment, the weight thereof, or the weight of the testimony, since the motions admit the evidence in favor of the plaintiff to be true, together with all legitimate inferences. According to the weight of authority, proprietors of theatres are not insurers of the safety of their patrons, but are required to use ordinary care to make the premises as reasonably safe as may be consistent with the practical operation of the business. Dire v. Balaban & Katz, Inc., 241 Ill. App. 199. In resisting the contention of defendants that the court should have directed a verdict, plaintiff states that the photographs introduced by her as Exhibits 1 and 2 accurately portray the obstruction complained of; that the ventilator was raised above the floor and was dangerous; that as a result she fell and sustained injuries; that the pictures show the negligent construction and maintenance; that plaintiff testified that the ventilator was from four to six inches above the level of the floor; that the pictures confirm her testimony; that the jury, the judges of the facts, chose to decide in favor of her contention; that the pictures were viewed by the jury; that the defendants attempted to show by a drawing that the ventilator was not raised or dangerous; that the question as to the lights is not in issue excepting insofar as the dim lights made it impossible for her to see the raised ventilator on which she fell; and that the amount of damages awarded was reasonable. We are of the opinion that under the rules applicable the court did not err in denying defendants’ motions for a directed verdict and for judgment notwithstanding the verdict.

Defendants insist that the judgment is clearly and palpably against the manifest weight of the evidence. Plaintiff states that the evidence fully supports the judgment; and that the evidence preponderates in favor of plaintiff. We agree with plaintiff that a verdict should not be set aside by an appellate court as being against the weight of the evidence unless it is against the manifest weight of the evidence; that where there is a conflict in the testimony it is for the jury to weigh and determine the evidence admitted by the court as competent; and that a reviewing court should not infringe upon the right of trial by jury by weighing and determining if the plaintiff has proved her case by a preponderance of the evidence. As the case was submitted to the jury the charge against the defendants was negligence in permitting an obstruction to be installed and remain between the two rows of seats. Moving picture theatres are necessarily dark while the pictures are being shown, and the lighting of the aisles and walks must be subdued. Plaintiff testified that there were no lights out of order. There was no testimony that the lighting system was improper or inadequate. Plaintiff attempted to prove that she was injured by reason of an obstruction in the walk between the fourth and fifth rows of seats from the rear of the theatre to the left of aisle four. She admitted that when she reported the occurrence to the employees of the theatre she made no complaint of any obstruction, but commented only on the alleged insufficiency of lights. The testimony of Arthur Land, a draftsman of 25 years experience, and the drawing he made shows that the ventilator measures fourteen inches in a direction parallel with the row of seats, or north and south, and ten inches from the front to the back of the seat, or east and west; that it is seventeen and three quarters inches from the front of the seat in the fourth row to the edge of the ventilator; that there is a drop of three inches from the floor level of the fourth row to the floor level of the fifth row of seats; that the ventilator is entirely under the fifth row seat, if the back of the seat is included; that if only the seat proper is considered the ventilator protrudes three inches toward the row in back; that seven inches of the ventilator goes under the seat; that three inches of it are in the aisle between the two rows of seats; that the center of the ventilator is about one inch above the fourth row floor at its highest point; and that the edge of the ventilator under the fifth row seat is level with the floor of the fourth row seats. Plaintiff testified on cross-examination that as she was moving sideways toward the aisle her foot did not go off or down from the level upon which she had been proceeding. She identified the ventilator as the object that she stumbled over. It has frequently been held that the testimony of a witness may contain within itself its own impeachment. She stated that she “stumbled” her foot over a high part raised up in the floor some four to six inches. The ventilator did not cause plaintiff to stumble when she walked into the passageway for the fourth row of seats. She necessarily passed the ventilator in proceeding as far south in the row as the fifth seat. From a consideration of all the testimony and the exhibits, we are convinced that the judgment is contrary to the manifest weight of the evidence. The drawing clearly shows that the ventilator as constructed and maintained was not dangerous. It also shows that the highest point of the ventilator was only one inch above the floor on which plaintiff was walking and that it was level with the floor at the point where the floor and the ventilator came together. The ventilator gradually sloped upward from the floor until at the center the ventilator was one inch above the level of the floor. This is a clear contradiction to plaintiff’s testimony that the obstruction was from four to six inches above the level of the floor. In our opinion, the photographs tend to support the drawing and testimony of Mr. Land.

Defendant maintains that the court erred in denying their motion for leave to file an amendment to their motion for a new trial and in the alternative their motion in the nature of a writ of error coram nobis. At a term subsequent to the term when the judgment was entered, the witness Drummond made an affidavit in which he repudiated some of the testimony he gave. The court denied defendants leave to file their motion or affidavit. These documents have been included in the record and abstract. Plaintiff moved to strike and expunge from the record and abstract all reference to the motion and affidavit and plaintiff’s motion was 'taken with the case. It is now allowed. We have not considered the affidavit of Mr. Drummond in passing on the pbints raised by the parties.

Other points have been urged by defendants. In view of our finding, it is unnecessary to consider these points. The judgment of the circuit court of Cook county is reversed and the cause remanded with directions for further proceedings not inconsistent with this opinion.

Judgment reversed and cause remanded with directions.

Hebel, P. J., and Kilby, J., concur.


source: Caselaw Access Project

author: Mr. Justice Kilby

license: Public Domain

text:
    John F. Cahill, Administrator of Estate of James Burke, Deceased, Appellee, v. Walter J. Cummings and Daniel C. Green, Receivers, etc., et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 42,369.

      Heard in the third division of this court for the first district at the October term, 1942.
    Opinion filed April 26, 1944.
    Rehearing denied May 12, 1944.
    Frank L. Kriete, Charles E. Green and Arthur J. Donovan, all of Chicago, for appellants; -William J. Flaherty, of Chicago, of counsel.
    Black & Beermann and William J. Terrell, all of Chicago, for appellee; Benj. H. Black, of Chicago, of counsel.
   Mr. Justice Kilby

delivered the opinion of the court.

This is an action commenced July 13, 1939 under the Injuries Act, ch. 70, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 38.01 et seq.], arising from the death of James Burke. Verdict and judgment were for plaintiff in the amount of $2,500. Defendants appeal.

On April 26, 1939, decedent while going east on Washington Boulevard, was crossing defendants’ southbound tracks in Paulina street, Chicago, when struck by defendants’ southbound street car. He died three days later. The verdict was upon complaint that while decedent was exercising due care, defendants negligently operated their car in that they did not have it under proper control and negligently operated it while approaching the intersection. Defendants made issue on the essential elements and charged that decedent’s death was due to his negligence. Defendants argue that decedent was guilty of such negligence as a matter of law that plaintiff cannot recover; and that, as a matter of law, no negligence was shown on their part.

Favorable evidence for plaintiff is that the motorman first saw decedent when the car was about 125 feet north of the crosswalk and decedent 5 or 6 feet east of the west curb; that decedent was then looking north; that the lights about that time changed in the car’s favor and it increased its speed south while decedent was proceeding east, and struck him as he was about to clear the southbound tracks. This evidence, with-proper inferences most strongly in plaintiff’s favor, is sufficient basis for submitting the case to the jury, unless for some reason the sum of the evidence and inferences has been held to constitute lack of due care. Defendants cite Letush v. New York Cent. R., 267 Ill. App. 526 in support of their theory that decedent having looked at the car, must have seen it, and should have known a car going 8 miles per hour requires about 30 feet and one going 14 miles per hour about 60 feet for stopping. The case is not applicable, for the jury may have found that the motorman, when he saw the lights against him and the decedent in the act of crossing, should have reduced the speed of the car to bring it under control so that decedent could cross in safety. Since decedent had the green light and was well into the intersection and saw the car more than 125 feet away, it would seem that he would be in the exercise of due care if he devoted his attention more directly to other factors necessary to his crossing. There must be some advantage to traffic control lights, with the green light as a guide to one’s conduct or else pedestrians may well become extinct. Our Motor Vehicle Law, ch. 95%, Art. Ill, par. 129, subpar. 1, Ill. Rev. Stats. 1941 [Jones ILl. Stats. Ann. 85.161], provides such an advantage. They rely strongly upon the sounding of the gong by the motorman and his best efforts to stop the car. Favorable inferences might be that since decedent was lawfully in the intersection, the clanging gong and onrushing car served only to confuse him. Defendants say that even if decedent had the green light and the right of way, a red light cannot stop a street car and decedent must have seen the car was too close and coming at such a speed, it was impossible to stop, whether traffic control lights were favorable or unfavorable. We have already discussed one phase of this contention. As to the other phase— the pedestrian has an obligation to use due care commensurate with the danger that confronts him, but he cannot adjust his conduct to deal with disregard of traffic laws. The matter of traffic control and rights of way is not a case of survival of the strongest or swiftest.

Defendants in arguing that decedent was guilty of negligence as a matter of law, say that under Russell v. Richardson, 308 Ill. App. 11, the question of due care is a separate and distinct question from any claim of defendants’ negligence. We think that, while it is a separate question, due care cannot always be determined without reference to defendant’s conduct. They say that decedent, having looked north when the car was about 125 feet away, was bound to see the car bearing down upon him and should have realized the danger and should not have attempted to cross in front of it. We hold that the jury would have been justified in concluding that plaintiff had a right to cross in safety, not because a pedestrian may rely absolutely upon the efficacy of traffic lights, but because the motorman had ample opportunity to avoid the accident. To sustain their contention that decedent was negligent, they rely upon Russell v. Richardson, 308 Ill. App. 11; Rajeh v. Cummings, 314 Ill. App. 465; Mortell v. Richardson, 285 Ill. App. 586. The facts in those cases are different from those in the case before us; there were not traffic control lights involved in any of them and, in the Russell case, the court found that the car tracks constituted a dangerous place, under the circumstances there. In the Raj eh case the motorman did not see the decedent before the accident, and in the Mortell case the court found the decedent took a chance in crossing in front of the approaching car. We cannot hold that decedent, under the circumstances here should be considered as having taken a chance. Defendant's cite Hooper v. Corliss, 146 Wash. 50, 261 Pac. 645, for a rule which we think supports our view, that is that neither the pedestrian nor vehicle has the absolute right-of-way, but that the term right-of-way is relative and the right must be exercised prudently in the light of existing conditions. It is our conclusion that decedent was not guilty of contributory negligence as a matter of law.

Chicago Union Traction Co. v. Browdy, 206 Ill. 615, is cited by defendants for the rule that their servant must have had an opportunity to become conscious to the duty where the alleged negligence consists of an omission of duty suddenly and unexpectedly arising ; and have had a reasonable opportunity to perform the duty. That rule has no application, for the jury may well have believed that the motorman had ample opportunity in circumstances which were not sudden or unexpected. The motorman says he increased his speed when the lights changed and, since he saw at that time decedent was lawfully in the intersection, we cannot say he did everything possible to avoid the accident. His conduct is sought to be justified on the strained principle that taxpayers riding the street cars are entitled to reasonably swift traffic. Human lives cannot be sacrificed needlessly on any such theory. Defendants argue their case as though it were confined to the area between the tracks. We think their obligation under the circumstances here extended to the intersection. We believe, therefore, there is no merit to defendants ’ contention that it was not guilty of negligence as a matter of law.

Defendants contend that the clear weight of the evidence shows decedent was guilty of contributory negligence and that the traffic lights changed before he undertook to cross the street car tracks and at a time when the car was too close to be stopped, although the motorman did everything possible under the circumstances to avoid the accident. There were four occurrence witnesses, one of whom, Mattigan, an employee of defendants, we consider unreliable. A pedestrian testified that the lights favored decedent when he started across the intersection, and that he was almost across the tracks when the traffic light changed and the car speeded up and struck him. It is undisputed that the east side of the car struck decedent. The driver of an automobile westbound on Washington Boulevard said the light turned red against him as he came to Paulina street and that as he came to a .stop, he looked and saw the accident. This evidence corroborates the pedestrian witness. The motorman testified he first noticed decedent when the car was,about 125 feet north of the crosswalk and that the latter was then 5 or 6 feet east of the west curb of Paulina street and that the lights then changed in favor of the motorman. He says that decedent faced him at first, ,and when the lights changed and the speed of the car increased to 14 miles an hour, decedent turned his back as though returning to the curb and, when the car was about 10 feet away, broke into a “dead run” in an easterly and southeasterly direction. It is clear from this evidence that the jury would be justified in finding that the lights favored decedent until he was well into the intersection, if not partially across the tracks; and in finding that the motorman was negligent in increasing the speed of the car and ringing the bell under the circumstances, and in failing to bring his car under control when he first observed decedent with the light in his favor several feet in the intersection, so that decedent could proceed out of danger.

Decedent was 62 years of age and a painter and decorator who had done little wo'rk in his trade for two years prior to his death. His income seems to have been rather meagre from his work as a handyman or janitor in a rooming house, and he and his wife from whom he was separated had been on relief and his average contribution for the support of his two children was about $10 a week. For these reasons defendants say that the allowance of $2,500 as damages was excessive. We believe that the jury could, reasonably, have found that the increase in demand for tradesmen of all kinds since decedent’s death, would have served to bring him back to his trade and'have increased his income. We find, accordingly, that the judgment is not excessive. This conclusion because of our views on the question of liability disposes of the defendants’ further complaint of the inflammatory and prejudicial arguments of decedent’s counsel

Finally defendants contend that the court committed reversible error in giving plaintiff’s instruction, as follows:

“31. The court instructs the jury that if they believe from the evidence that on the 26th day of April, 1939, James Burke came to his death while in the exercise of ordinary care for his own safety, in the manner and by the means set forth in the Complaint filed herein, and if the jury further believe from the evidence that the death of said James Burke was caused by the negligence of the defendant company, as charged in the complaint; and if the jury further believe from the evidence that the said James Burke left him surviving, a widow and minor children, as charged in the Complaint, and that such widow and minor children by the death of the said James Burke have been and are deprived of their means of support, then, in law, the plaintiff is entitled to recover. ’ ’

They say it directs a verdict and assumes defendants’ negligence. That instruction is .substantially the same as the plaintiff’s sole instruction in Economy Light Co. v. Stephen, 187 Ill. 137. Defendants say the objection made here was not raised there. The objections there raised to the instruction were that it based the right to recovery on plaintiff’s financial condition, and was erroneous on the question of the measure of damages. The court held the objections untenable and said:

“It simply tells the jury that if they find the facts -to be as therein stated the plaintiff is entitled to recover. ’ ’

And later:

“It may be that this single instruction does not, of itself, fully instruct the jury as to every principle of law applicable to the case; but the question here is, whether, standing alone, it is erroneous in its announcement of the rules of law applicable to the case or calculated to mislead the jury to the prejudice of the defendant.”

It then said that if other necessary instructions were not given, it was defendant’s fault and it approved the action of the Appellate Court, holding there was no reversible error in giving the instruction. Defendants’ instructions No. 13, 14, 15, 17, 19, 21, 27, 28 and 29 relate to the proof required to establish its negligence and several of them were peremptory. We believe plaintiff’s instruction under consideration was peremptory and carefully read, an assumption of defendants ’ negligence may be. seen. The matter of instructions is difficult. Here plaintiff’s attorneys used in substance an instruction approved by an Appellate and the Supreme Court. Not unmindful of the clear rule regarding erroneous peremptory instructions (Grifenhan v. Chicago Rys. Co., 290 Ill. 590; Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544), we think that under the circumstances here and in view of the defendants’ instructions, that a grave injustice would be done plaintiff by reversing the judgment on that instruction.

For the reasons herein given the judgment of the circuit court is hereby affirmed.

Judgment affirmed.

Hebel, P.J., and Burke, J., concur.


text:
    Lesley Pope Cook, Administrator de bonis non with Will Annexed of Estate of Henry P. Pope, Deceased, Appellant, v. Gordon A. Ramsay, Appellee.
    Gen. No. 42,533.
    Heard in the third division of this court for the first district at the December term, 1942.
    Opinion filed April 26, 1944.
    Russell J. Topper, of Chicago, for appellant.
    Beckman, Healy, Reid & Hough, of Chicago, for appellee.
   Mr. Justice Kilby

delivered the opinion of the court.

This is an action, filed April 8, 1942, of conversion and for an accounting in one count; and for damages through fraud and deceit in the other. Plaintiff demanded a jury trial. May 4, 1942, defendant made a motion “to dismiss and for judgment.” July 6, 1942, Judge Schwaba sustained the motion and gave plaintiff leave “to present” within thirty days an amended complaint, but reserved jurisdiction to pass upon the sufficiency thereof prior to the filing of the same. August 5,1942 Judge Nelson, sitting in vacation, entered an order extending the time for “filing” of plaintiff’s amended complaint to September 15, 1942. Later, the same day, Judge Nelson entered an order vacating the prior extension order, entered plaintiff’s motion and continued the hearing to August 6, and directed defendant’s counsel to notify plaintiff’s counsel of the order. August 7, 1942, Judge Nelson denied the motion for an extension, found that an amended complaint had not been presented, dismissed the cause and gave plaintiff leave to file an affidavit in support of the motion which had been denied. Plaintiff appeals from the orders of July 6, the second order of August 5, and the order of August 7. .

Plaintiff charges Ramsay with violation of his trust as attorney for Henry Pope and for the executors of Pope’s Estate by defrauding Pope and the estate of money and assets. She alleges that Pope loaned Albert Cook about $5,855 and employed Ramsay to devise a plan to secure the loans; that Ramsay formed' a corporation issuing 577 of the 600 shares to Pope and the balance to Ramsay’s nominees and caused Cook and wife to convey Chicago property to the corporation to secure the loans; that these steps were part of a fraudulent scheme which was furthered by a sale of the security for $82,000 in which Pope was caused to make affidavit that he owned all the stock; that out of the proceeds Ramsay fraudulently retained a commission, gave Pope only $5,855 of the amount due him; gave Cook only $20,000 and retained the balance ; and that he represented conflicting interests. She further alleged that Bamsay falsely represented to the executors of Pope’s estate that Cook charged Pope with fraud in the transaction and claimed $100,000 damages; that he had settled the claim using $40,000 of the proceeds of the sale which had been deposited in a brokerage account and that Pope had agreed to pay him $1,000 out of the balance in the account; that Bamsay hid the true nature of Cook’s claim and his own conflicting representation from the executors; and that as a result of these false statements and concéalments, had succeeded in acquiring $1,000, certain securities and cash which the estate had obtained from the broker’s account as assets. She finally alleged that on December 18, 1941, she commenced investigation, learned the facts, made demand on Bamsay and was refused. In Count I she asks an accounting of the moneys “converted” and in Count II a judgment for $40,000.

In support of his motion Bamsay filed an affidavit accompanied by a petition filed by him in the Probate Court in the Pope Estate, April 22, 1929, in which he stated that Pope had given him $40,000 to settle Cook’s claim, agreeing to a fee of $1,000; that the money was put in a “Bamsay Special” brokerage account designated “For H. P. Pope”; that the claim was compromised and. Bamsay with the $1,000 fee purchased through the account the items which he asked that the executors be directed to return to him. In the petition he advised the court that he was attorney for the executors. Also attached to the affidavit is a letter written by Pope to the brokers, notifying them that Bamsay was his attorney and agent with power over the account to withdraw, sell, etc.; and the order of Judge Horner granting the relief asked in the petition.

Defendant’s motion to dismiss and for judgment, was based' on the statute of limitations, insufficiency of the allegations and prior adjudication of plaintiff’s claim in the Probate Court. There was no attack made by plaintiff on defendant’s motion, but the trial court gave her leave to “present” an amended complaint which was never presented. The court ruled that the cause of action was barred by the statute of limitations. There is no dispute about the five-year limitation governing the cause of action alleged, but the issue concerns the starting point of the period. That issue arises out of the claim by plaintiff that Ramsay fraudulently concealed the cause of action, and that consequently, under Paragraph 23 of the Limitations Act, Chapter 83, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 107.282], the five years did not commence until plaintiff discovered the cause of action in December, 1941. Paragraph 23 provides that where a person liable to, an action fraudulently conceals the cause of action, from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the latter discovers that he has the cause of action. The parties agree that it is the law of this State that where there is no fiduciary relationship, the statute of limitations does not begin to run in cases of fraud until discovery of the fraud, or until such time as it could have been discovered by the use of reasonable diligence. The parties dispute plaintiff’s contention that in case of a fiduciary, his mere silence without affirmative action to conceal is sufficient to protect a claimant under Paragraph 23, regardless of the question whether plaintiff used reasonable diligence to discover.

We assume that both agree that Paragraph 23 does not operate after a fiduciary discloses the facts. Plaintiff claims that under Vigus v. O’Bannon, 118 Ill. 334 and Keithley v. Mutual Life Ins. Co., 271 Ill. 584, she was not required to exercise due diligence, but that defendant was obliged to disclose the truth, in order to prevent operation of Paragraph 23. We believe that in considering the question of defendant’s motion, the court had a right to consider not only the affidavit and exhibits in support thereof but also the allegations of the complaint. Under this record, both must be taken as true. Plaintiff was charged with notice of the Probate Court proceedings. There is a full disclosure of Ramsay’s doings there. The. cause of action, if any, alleged in Counts 1 and 2, accrued then and, accordingly, were barred by laches and the statute of limitations respectively, when the suit was filed. These conclusions are consistent with the holding in Lancaster v. Springer, 239 Ill. 472, and obviate the necessity of considering other cases cited by the parties which bear upon the dispute heretofore recited.

Plaintiff complains of the refusal of the trial court on July 6, 1942, to give her leave to file an amended complaint. The record indicates that the court gave her 30 days in which to present an amended complaint, so that it could determine whether the “Amended Complaint” wets vulnerable to defendant’s motion before giving leave to file. At that time the court had sustained the motion and had before it the complaint, defendant’s motion and the briefs of the parties thereon. Under the circumstances we believe the court exercised its discretion reasonably. Plaintiff further argues that the order of August 5, 1942, vacating the prior order of that date, granting an extension was entered without notice. The record shows, and plaintiff does not deny, that when the first order of that date was entered defendant’s counsel who was present in the courtroom had “stepped out” for a brief period, during which the order was entered. The trial court upon counsel returning to the courtroom and explaining the circumstances, vacated the order and advised counsel to notify plaintiff’s attorney. We see no, abuse of the court’s discretion in connection with the order. It is finally contended that the trial court committed error in refusing on August 7th to allow plaintiff an extension of time within which to file an amended complaint. The affidavit filed in support of the motion for an extension states that plaintiff’s counsel was closely engaged in other important matters in July and August, and that Judge Schwaba who heard the matter in July was absent on vacation and would not return until August 24th and that even if the amended complaint were preparéd, it could not be presented in Judge Schwaba’s absence. When Judge Schwaba entered the order, July 6th, he informed plaintiff’s counsel that he would be sitting for the next two weeks. No motion was made in that two week period for an extension, nor any showing made as to what plaintiff’s amended complaint would contain. The motion for an extension was not made until the 30th day, and still no indication as to what the substance of the amended complaint would contain. Under these circumstances and in view of 'the foundation for defendant’s “motion to dismiss and for judgment,” we cannot say the trial court abused its discretion.

For the reasons given, the decree of dismissal and the subsequent orders are affirmed.

Decree of dismissal and subsequent orders affirmed.

Hebel, P. J., and Burke, J., concur.


text:
    Charles A. Harker, Appellee, v. Julius Levy and Elizabeth Levy, Appellants. Appeal of Elizabeth Levy.
    Gen. No. 42,826.
    Heard in the third division of this court for the first district at the October term, 1943.
    Opinion filed April 26, 1944.
    Earl J. Walker, of Chicago, for certain appellant.
    William: E. Gaiher, of Chicago, for appellee.
   Mr. Justice Kilby

delivered the opinion of the court.

This is a forcible entry and detainer action involving a question of the applicability of Rent Control Regulations of the United States Office of Price Administration. Judgment was for plaintiff-landlord, from which Elizabeth Levy, wife of Julius who was served but did not appear, has appealed.

The facts were stipulated. Dr. Levy, his wife and two minor children occupied an apartment in plaintiff’s building under a yearly lease at $75 per month, which expired by its terms on April 30,1943. August 4, 1942, Dr. Levy sued for divorce and his wife filed a counter action. Under an order entered in that proceeding, Dr. Levy, among other things, paid the rent for the apartment, though he did not occupy it after the filing of that suit. Prior to the expiration of the lease, plaintiff tendered Dr. Levy a lease for the same premises for the year commencing May 1, 1943, which carried a stamped notice that, “Until further notice, and acting under the order of the Office of Price Administration, Rent Control Division, the monthly charge for the occupancy of this unit shall be $70.00,” and a further stamped statement that the prescribed rent was the O.P.A. maximum. Dr. Levy returned the proffered lease unsigned, notifying plaintiff he was no longer living with his wife and had no desire to renew the lease. March 6, Mrs. Levy wrote plaintiff that she was able to keep the apartment by virtue of the divorce court order and wished to obtain a lease and offered guaranty. March 15,1943, plaintiff served Dr. Levy and Mrs. Levy with a demand for possession on April 30, 1943,.“In accordance with Section 6 of the Rent Regulations of the Office of Price Administration.” April 5, Mrs. Levy demanded that she and her family be permitted to continue occupancy and April 28, remitted a check for $70 for May rent. The check was returned to her with advice that her application for a lease had been denied. May 4, plaintiff commenced this action and gave notice thereof to the O.P.A. At the trial plaintiff’s counsel said that one of the reasons for denying Mrs. Levy’s application' was that she was not financially prepared to carry out the terms of the lease. In her application Mrs. Levy offered to pay the first and last months’ rent in advance, gave individual business references as guarantors and under a notation entitled, “Remarks” it was stated that she “has no income, or resources other than her furniture, but she intends to go to work.”

The complaint alleged that plaintiff was entitled to ■ the premises and that defendants were unlawfully withholding possession. In giving judgment for possession to plaintiff, the trial court found that under Illinois law and regulations of the O.P.A., there was no relationship of landlord and tenant between plaintiff and Mrs. Levy and, accordingly, no right in her to occupy the premises. The Office of Price Administration was created under authority of the Emergency Price Control Act of 1942. To serve the purposes of the Act and to bring rentals under control in this area, the O.P.A. promulgated Maximum Rent Regulations under which Mrs. Levy contends she is a tenant entitled to continue her occupancy under the prior lease, and therefore is protected against eviction. Plaintiff contends that Mrs. Levy is not a tenant under the Regulations, and that the judgment should be sustained.

Under Section 13 (a) 9 of the Regulations, the term tenant is . said to include sub-tenants, lessees, sub-lessees “or other person entitled to the possession or to the use or occupancy of any housing accommodations.” Section 6 (a) provides that so long as the tenant continues to pay the required rent, he shall not be removed, notwithstanding that hé has no lease or that his lease has expired, unless “(1) the tenant who had a written lease . . . has refused upon demand of the Landlord to execute a written extension or renewal. ...”

It is Mrs. Levy’s contention that she is a “person entitled to possession” under Section 13 and, therefore, a tenant under Section 6 (a). A person entitled to possession is one to whom the right of possession has been given. (Webster’s New Int’l Diet. 2nd Ed.). The lease which expired April 30, 1943, was between plaintiff and Dr. Levy. There was no contract between plaintiff and Mrs. Levy covering the premises. Any right she had in the premises was derived from her husband, Dr. Levy. When his right under the lease was extinguished by his refusal of the new lease (Sec. 6 (a-1) ) whatever right Mrs. Levy had was extinguished. She was not, therefore, a “person entitled to possession, . . .” and accordingly, not a tenant under Sec. 6 (a) of the Regulations and not within their protection.

Another point raised by Mrs. Levy is that plaintiff did not comply with requirements of the Regulations preliminary to suing for eviction. Plaintiff answers that Mrs. Levy did not complain in the trial court and, furthermore, is not a tenant and cannot claim any violation of the Regulations. The prerequisites referred to are in Section 6 (d) 1 and 6 (d) 2 and have to do with notices, and requirements thereof, to the tenant and O.P.A., relating to eviction. Since we have held that Mrs. Levy is not a tenant within the meaning of the Regulations, and that they do, not apply to her, plaintiff was not required to follow the Regulations in his action against her and was required only to follow the Illinois law governing the action. There is no claim that he did not follow the local law. We need not decide what effect any failure to comply would have had were Mrs. Levy a tenant under the Regulations ; nor how the trial court should have proceeded had Mrs. Levy raised the point before trial.

The judgment of the Municipal Court is affirmed.

Judgment affirmed.

Hebel, P. J., and Burke, J., concur.


author: Mr. Justice Wolfe

text:
    Frank Munyon and Verne T. Brassard, Appellants, v. Arthur Roy Wilson, Also Known as Arthur R. Wilson, et al., Appellees.
    Gen. No. 9,948.

      Heard in this court at the February term, 1944.
    Opinion filed April 27, 1944.
    E. P. Harney, of Momence, for appellants.

      John H. Beckers and C. M. Granger, both of Kankakee, for certain appellees.
    Vaughan, Tilley & Humphrey, of Chicago, pro se; Franklin E. Vaughan, of Chicago, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

This is an appeal by the plaintiffs from a decree of the circuit court of Kankakee county. The suit was brought by appellants for the purpose of removing certain alleged clouds on their title to the real estate described in the complaint.

From the record it appears that appellants claimed to be the owners of a tract of land located in Kankakee county, consisting of slightly more than 950 acres. In the complaint it was alleged that the plaintiffs acquired color of title by quitclaim deeds; that they immediately went into possession of said real estate, under the said deeds, and continued in possession thereof, and paid all the taxes thereon for a period of seven years. Upon these facts they alleged that they were the owners of limitation title to said real estate, based-upon that deed, as color of title, followed by possession and the payment of taxes, for the period of seven years, under section 6 of the Limitations Act. Ill. Rev. Stat. 1943, ch. 83, par. 6 [Jones Ill. Stats. Ann. 107.264].

They further alleged in the complaint that at the time said deeds were issued, which is the origin of their title, there were certain outstanding trust deeds of record against said real estate. It was alleged that the limitation title acquired by them took precedence over the trust deeds and that their title was not subject to the liens of the trust deeds. Answers were filed by the trustees named in two of the trust deeds, and a separate answer by the holders of some of the notes, secured by one of the trust deeds. Issues were joined upon the complaint, the answers and plaintiffs ’ replies to such answers.

Upon a hearing, the court, by its decree, canceled and removed all of the alleged clouds on the title of the plaintiffs, except a trust deed held by Chicago Title and Trust Company, as trustee, purporting to secure an indebtedness of $45,000, also a trust deed held by City Trust & Savings Bank, as trustee, purporting to secure an indebtedness of $150,000. The court held that the liens of these two trust deeds on the property were not affected by the title acquired by plaintiffs, and that such title was subject to the liens. From that decree appellants perfected an appeal to the Supreme Court. The Supreme Court held that the question whether the plaintiffs’ title is subject to a lien of the trust deed, does not involve a freehold', and transferred the case to this court.

The evidence shows that after the plaintiffs procured their quitclaim deeds to the property in question in the spring of 1934, they entered into the possession of said land and have been in possession of the same to the date they filed their complaint in this case. During that time, which is a period of over seven successive years, they paid all the general and special taxes levied against said land, and it is their contention that their possession of the premises was adverse, actual, visible and continuous, and under a claim of color of title, and their title is paramount to the trust deeds in question, and that the same should be removed as a cloud upon their title. That the appellants were in actual possession of the property, does not seem to be disputed, but as to whether their possession and title was adverse to the appellees in the case, there is a serious dispute.

The elements necessary to render possession to premises a bar to the legal assertion of the title of the owner are set forth in the case of Zirngibl v. Calumet & Chicago Canal & Dock Co., 157 Ill. 430, where the court said: ‘ ‘ The adverse possession which is required to constitute a bar to the assertion of a legal title by the owner of it must include these five elements: It must be (1) hostile or adverse, (2) actual, (3) visible, notorious and exclusive, (4) continuous, and (5) under a claim or color of title. (1 Am. & Eng. Ency. of Law, p. 228, and cases cited in notes.) In Wallace’s note to Nepeau v. Doe, etc., 2 Smith’s Lead. Cases, part 2, 707, it is said that the possession must be an actual, continued, visible, notorious, distinct and hostile possession. Substantially the same doctrine has frequently been announced by this court. McClellan v. Kellogg, 17 Ill. 498; Turney v. Chamberlin, 15 id. 271; Weaver v. Wilson, 48 id. 125; Ambrose v. Raley, 58 id. 506; Lancey v. Brock, 110 id. 609.

“Adverse possession cannot be made out by inference or implication, for the presumptions are all in favor of the true owner, and the proof to establish it must be strict, clear, positive and unequivocal. McClellan v. Kellogg, supra; Jackson v. Berner, 48 Ill. 203; Ambrose v. Raley, supra; Trustees of Schools v. Schroll, 120 Ill. 509; authorities cited in note 2 to page 228, 1 Am. & Eng. Ency. of Law, supra.”

It is claimed by the appellants that payment of taxes by them for the years since they procured their quitclaim deeds, was notice to the appellees that they were in possession of the premises, and that the appellees were therefore charged with the knowledge that they were claiming to be the owners of the same. The cases cited by the appellants in support of their contention, no doubt, state the law applicable to such cases, but in this case there is a different set of circumstances existing. While the record in this case shows that the appellants furnished money, and did pay the taxes, the tax records show they were paid in the name of the former owner, namely, J. P. Wilson. The holders of the trust deed were under no obligation to pay the taxes, and if they had gone to the record to investigate whether the taxes were paid, they would have seen that they had been paid, so far as the record was concerned by the proper party, J. F. Wilson, and they would have a right to rely upon that record as being correct. If the noteholders, or the trustees under the deeds, had examined the record and found that the taxes had been paid by some one else not connected with the record title, perhaps then it would be sufficient notice to them to make inquiries as to who was paying the taxes.

The opinion of the learned trial judge is incorporated in the record, and is in part as follows: “In the case now under consideration, at the time the alleged color of title was obtained by the plaintiffs, the mortgages or the trust deeds were of record, one for $150,000.00 and the other for $45,000.00. The $45,000.00 mortgage recited on its face that it was a purchase money mortgage. The consideration paid by the plaintiffs was $1,852.00 each. They were chargeable with notice of the lien of this indebtedness because of the record, and entered into the possession of the premises with these liens valid and subsisting. In fact, there is no contention as to the validity of these trust deeds. From all that appears in the record the first the owners of the indebtedness secured by these trust deeds knew of the claims of the plaintiffs was when this litigation started. The record is barren of any proof of the plaintiffs bringing home to the owners of the indebtedness the fact that the plaintiffs claimed to own the property covered by the trust deeds. The indebtedness is still valid and subsisting liens on the property covered by the mortgages or trust deeds, and there is no contention that the Statute of Limitations as to mortgages and indebtedness has run nor has it. ’ ’

After reading the evidence, as abstracted in this case, we concur in what the trial court found to be the facts. In the absence of proof to show notice was brought home to the owners of indebtedness of the claim of the plaintiffs, it is our conclusion that the possession of the plaintiffs was not adverse to the owners of the indebtedness involved herein.

The appellants have devoted some time in their argument to the legal effect of the tax deed of their grantor. No mention was made of this deed in the pleadings. It was introduced in evidence over the objections of the appellees and admitted for one purpose only, namely, to show good faith and hostile intent on the part of the plaintiffs. It cannot now be considered for any other purpose than that for which it was offered.

The appellants allege in their complaint that there was no consideration given whatever for the notes secured in the two trust deeds, and that they are not only worthless, but without value. The defendants, by their answer, deny this allegation, and allege that they were given for a valuable consideration. The plaintiffs offered no proof whatever to prove their claim. The trust deed of $50,000 recites on its face that it was given to secure a part of the purchase money of the major portion of the land in question, and the proof shows that the notes secured by the two trust deeds are given for a valuable consideration.

The appellants contend that the rights of the defendants are governed by section 6 of the Limitation Act [Jones Ill. Stats. Ann. 107.264], The defendants claim that they are not bound by that section, but by sections 11 and 16 of that act [Jones Ill. Stats. Ann. 107.269 and 107.276], and those two sections should be considered together. The appellees are supported in their contention by the language used in the case of Kraft v. Holsmann, 206 Ill. 548, where it is said: (549) “The first contention of the,appellants is, that when the bill was filed to foreclose the deed of trust the suit was barred by the eleventh section of the act in regard to limitations, which section is as follows: ‘No person shall commence an action or make a sale to foreclose any mortgage or deed of trust in the nature of a mortgage, unless within ten years after the right of action or right to make such sale- accrues. ’ (Hurd’s Stat. 1901, p. 1163.)

“We have repeatedly held in such cases, that the debt is the principal thing and the mortgage or trust deed but an incident thereto; that section 11 of the Limitation Act must be construed in connection with section 16, applicable to promissory notes, and that the mortgage will not be barred until the debt is barred. (Emory v. Keighan, 88 Ill. 482; Schifferstein v. Allison, 123 id. 662; Hibernian Banking Ass. v. Commercial Nat. Bank, 157 id. 52,4; Aetna Life Ins. Co. v. Mc-Ncely, 166 id. 540; Richey v. Sinclair, 167 id. 184; Wellman v. Miner, 179 id. 326; Murray v. Emery, 187 id. 408.)”

We think that section 6 of the Limitation Act does not apply to the holders of the notes and the trust deeds in the present case. We find no reversible error in the case, and the decree of the circuit court- is hereby affirmed.

Decree affirmed.


author: Per Curiam.

text:
    Crowley Brothers, Inc., Appellee, v. Henry F. Ward et al. Henry F. Ward, Appellant.
    Gen. No. 9,884.

      Heard in this court at the May term, 1943;
    opinion filed July 8, 1943;
    rehearing granted October 13, 1943; rehearing opinion filed April 27, 1944.
    Leon E. Sutherland and Shelton P. McGrath, for appellant; Bartley & Younge and Thomas B. Kennedy, for appellee.
   Per Curiam.

Not to be published in full.


author: Presiding Justice Friend.

text:
    People of the State of Illinois, for use of all Taxpayers of City of Chicago, by Harry Wolfberg, Taxpayer, Appellant, v. Peter J. Brady et al., Appellees.
    Gen. No. 42,475.
    Heard in the second division, first district, this court at the October term, 1942;
    opinion filed April 6, 1944.
    Gold & Liebman and Morris H. Sachs, for appellant; Charles Liebman, of counsel; Burke, James & Burke, for certain appellees; Edmund W. Burke, of counsel; Hoyne, O’Connor, Rubinkam & Melaniphy, for certain other appellee; John C. Melaniphy, of counsel; Barnet Hodes, Corporation Counsel; for certain other appellee; James A. Yelde and Alphonse Cerza, Assistant Corporation Counsel, of counsel.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    Harry O. Owen, Appellant, v. Mathias Klein and Sons, Appellee.
    Gen. No. 42,866.
    Heard in the second division, first district, this court at the October term, 1943;
    opinion filed April 6, 1944.
    Sidney J. & Arthur Wolf, for appellant; Sidney J. Wolf, of counsel; Scott, MacLeish & Falk, for appellee; Walter S. Underwood and Wendell J. Brown, of counsel.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


text:
    Novel Leon Reiger, Appellee, v. Walter Bruce, Appellant.
    Gen. No. 42,971.
    Heard in the second division, first district, this court at the February term,. 1944;
    opinion filed April 6, 1944;
    rehearing denied April 20, 1944.
    C. Francis Stradford, for appellant; B. G. Clanton, for appellee.
   Opinion by

Presiding Justice Friend.

Not to be published in full.


author: Justice Scanlan.

text:
    In re Estate of Hugh McLennan, Deceased. B. K. Goodman, Appellant, v. Katherine Howell McLennan, Executrix Under Last Will and Testament of Hugh McLennan, Deceased, Appellee.
    Gen. No. 42,115.
    Heard in the second division, first district, this court at the February term, 1942;
    opinion filed April 6, 1944.
    Samuel A. & Leonard B. Ettelson, for appellant; Edward C. Higgins and Elmer Gertz,. of counsel; Eckert & Peterson, for appellee; Tom Deeming and Henry P. C. W. Barber, of counsel.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Emma Hill, Appellee, v. New York Life Insurance Company, Appellant.
    Gen. No. 42,256.
    Heard in the second division, first district, this court at the June term, 1942;
    opinion filed April 6, 1944.
    Scott, MaeLeish & Falk and Ferdinand H. Pease, for appellant; Wendell J. Brown and Bruce M. Smith, of counsel; no appearance for appellee.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Rae Michelson, Appellant, v. Handel Brothers, Inc., Appellee.
    Gen. No. 42,878.
    Heard in the second division, first district, this court at the October term, 1943;
    opinion filed April 6, 1944.
    Peter D. Giaehini and Hieran P. O’Gallagher, for appellant; B. S. Quigley, for appellee; Ezra L. D’Isa, of counsel.
   Opinion by

Justice Scanlan.

Not to be published in full.


author: Justice Sullivan.

text:
    Charles Tidholm, Appellant, v. Amy D. Tidholm, Individually and Executrix of Instrument Purported to be Last Will and Testament of August Tidholm, Deceased, et al., Appellees.
    Gen. No. 42,220.
    Heard in the second division, first district, this court at the April term, 1942;
    opinion filed April 6, 1944.
    Richard W. Proctor, for appellant; Byron C. Thorpe and Thomas M. Poynton, for appellees.
   Opinion by

Justice Sullivan.

Not to be published in full.


author: Presiding Justice Sullivan.

text:
    H. C. Phillips, Plaintiff Below, v. Julius F. Smietanka, Trustee, et al., Defendants Below. H. A. Williams and Sewell and Sons, Inc., Appellees. George W. Lawrence and Pauline J. Lawrence, Appellants.
    Gen. No. 42,295.
    Heal’d in the second division, first district, this court at the June term, 1942;
    opinion filed April 6, 1944.
    Jerry M. Brumfield, for appellants; Harry Z. & Bernard Perel, for appellees; Arthur B. Sachs, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in fuU.


text:
    Herlihy Mid-Continental Company, Appellant, v. Sanitary District of Chicago, Appellee.
    Gen. No. 42,571.
    Heard in the second division, first district, this court at the February term, 1943;
    opinion filed April 6, 1944.
    Sheehan & Crilly, for appellant; Ernst Buehler and John H. Bishop, for appellee.
   Opinion by

Justice Sullivan.

Not to be published in full.


text:
    Charles J. Ekstrand et al., Appellees, v. N. P. Severin et al., Appellants.
    Gen. No. 42,857.
    Heard in the second division, first district, this court at the October term, 1943;
    opinion filed April 6, 1944.
    J. E. Yaffe, for appellants; England & O’Toole, for appellees.
   Opinion by

Justice Sullivan.

Not to be published in full.


text:
    People of the State of Illinois, Defendant in Error, v. William F. Katelhut, Plaintiff in Error.
    Gen. No. 42,980.

      Heard in the second division, first district, this court at the February term, 1944;
    opinion filed April 6, 1944.
    Judson L. Parker, for plaintiff in error; Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Opinion by

Justice Sullivan.

Not to be published in full.


author: Presiding Justice Dadt.

text:
    A. Claude Foreman, Appellant, v. Harry C. Daniels, Appellee.
    Gen. No. 9,417.
    Heard in this court at the February term, 1944;
    opinion filed April 12, 1944.
    Graham & Graham, for appellant; A. W. Sehimmel, for appellee.
   Opinion by

Presiding Justice Dadt.

Not to be published in full.


author: Presiding Justice Hebel.

text:
    Clara M. Russell, Appellee, v. George Ortseifen, Appellant.
    Gen. No. 42,381.
    Heard in the third division, first district, this court at the October term, 1942;
    opinion filed April 26, 1944.
    Abraham Lepine, for appellant; Elliodor M. Libonati, for' appellee; Abraham Miller, of counsel.
   Opinion by

Presiding Justice Hebel.

Not to be published in full.


text:
    People of the State of Illinois, Defendant in Error, v. Michael Healy and Walter O’Brien, Plaintiff in Error.
    Gen. No. 42,606.
    Heard in the third division, first district, this court at the April term, 1943;
    opinion filed April 26, 1944.
    Benedict J. Short and Ode L. Rankin, for plaintiffs in error; Thomas jf. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Joseph A. Pope, Assistant State’s Attorneys, of counsel.
   Opinion by

Presiding Justice Hebel.

Not to be published in full.


text:
    City of Chicago, Appellee, v. Jacob M. Roth, Appellant.
    Gen. No. 42,642.
    Heard in the third division, first district, this court at the April term, 1943;
    opinion filed April 26, 1944;
    rehearing denied May 12, 1944.
    Herbert M. Wetzel, for appellant; Barnet Hodes, Corporation Counsel, for appellee; J. Herzl Segal and L. Louis Hartón, Assistant Corporation Counsel, of counsel.
   Opinion by

Presiding Justice Hebel.

Not to be published in full.


text:
    People of the State of Illinois, Defendant in Error, v. O. C. Moe, Plaintiff in Error.
    Gen. No. 42,890.
    Heard in the third division, first district, this court at the October term, 1943;
    opinion filed April 26, 1944.
    Bay E. Lane, for plaintiff in error; George P. Barrett, Attorney General, for defendant in error; Thomas J. Courtney, State’s Attorney, Edward E. Wilson, John T. Gallagher and Melvin S. Bembe, Assistant State’s Attorneys, of counsel.
   Opinion by

Presiding Justice Hebel.

Not to be published in full.


author: Justice Burke.

text:
    Fara F. Kaplan (William Wallace McCallum, Assignee), Appellee, v. Stevens Hotel Corporation, Appellant.
    Gen. No. 42,772.
    Heard in the third division, first district, this court at the October term, 1943;
    opinion filed April 26, 1944.
    Samuel Levin, for appellant; Elwyn R. Shaw, of counsel; Marion J. Hannigan and William Wallace McCallum, for appellees.
   Opinion by

Justice Burke.

Not to be published in full.


text:
    Matchless Metal Polish Company, Plaintiff, v. George Knippel et al., Defendants. Appeal of Edward A. Miller, Objector, Appellant, v. Florence R. Cannon, Administratrix of Estate of Glenn Cannon, Deceased, Receiver, Appellee.
    Gen. No. 42,858.
    Heard in the third division, first district, this court at the October term, 1943;
    opinion filed April 26, 1944.
    Edward A. Miller, pro se; Frederick A. Thulin and Irving G. Brown, for appellee.
   Opinion by

Justice Burke.

Not to be published in full.


text:
    Van V. Lain and William Lain, Trading as Lain and Son, Appellants, v. Metropolitan Life Insurance Company, Appellee.
    Gen. No. 42,879.
    Heard in the third division, first district, this court at the October term, 1943;
    opinion filed April 26, 1944.
    Fisher & Fisher, for appellants; Joseph Fisher, of counsel; Hoyne, O’Connor & Rubinkam,»for appellee; Nathaniel Rubinkam and Melvin L. Gibbard, of counsel.
   Opinion by

Justice Burke.

Not to be published in full.


text:
    Herbert Novitsky and Fannie Novitsky, Appellants, v. Thomas P. Boland, Jr., Appellee.
    Gen. No. 42,895.
    Heard in the third division, first district, this court at the December term, 1943;
    opinion filed April 26, 1944.
    H. H. Patterson, for appellants; Edmund C. Maurer, of counsel; B. S. Quigley, for appellee; Ezra L. D’Isa, of counsel.
   Opinion by

Justice Burke.

Not to be published in full


author: Presiding Justice Burke.

text:
    Clara M. Dunn, Appellee, v. Edith L. Fradgley et al. Appeal of Alice Dunn, Appellant.
    Gen. No. 42,914.
    Heard in the third division, first district, this court at the October term, 1943;
    opinion filed April 26, 1944.
    H. M. Phipps, for appellant; Ray E. Lane, for appellee.
   Opinion by

Presiding Justice Burke.

Not to be published in full.


text:
    Laura G. Watson, Appellant, v. George D. Gray et al., Appellees.
    Gen. No. 42,929.
    Heard in the third division, first district, this court at the December term, 1943;
    opinion filed April 26, 1944.
    John B. King, for appellant; George Delbert Gray and Kerner, Jaros & Tittle, for appellees.
   Opinion by

Justice Burke.

Not to be published in full.


author: Justice Kilby.

text:
    George B. McLane et al., Plaintiffs, v. Louis Romano et al., Defendants. Bartenders and Beverage Dispensers Union, Local 278, of Hotel and Restaurant Employees International Alliance, etc., et al., Appellants, v. Roy D. Keehn et al., Appellees.
    Gen. No. 41,976.
    Heard in the third division, first district, this court at the October term, 1941;
    opinion filed April 26, 1944;
    rehearing denied May 12, 1944.
    Harold L. Levy, for appellants; Lawrence S. Jacobson and Grenville Beardsley, of counsel; W. M. Keeley, for certain appellee; A. C. Lewis, pro se and for certain other appellee; Charles McGuire, pro se; Raymond F. Hayes, pro se; J. Glenn Shehee, of counsel.
   Opinion by

Justice Kilby.

Not to be published in full.


author: Justice Kilet.

text:
    Jeanette Rohwedder, Appellant, v. City of Chicago, Appellee. Richard O. Rohwedder, Appellant, v. City of Chicago, Appellee.
    Gen. No. 42,473.

      Heard in the third division, first district, this court at the October term, 1942;
    opinion filed April 26, 1944;
    rehearing denied May 12, 1944.
    Ben W. Goldman, for appellants; Barnet Hodes, Corporation Counsel, for appellee; J. Herzl Segal, Adam B. Patterson and L. Louis Hartón, Assistant Corporation Counsel, of counsel.
   Opinion by

Justice Kilet.

Not to be published in full.


text:
    Herman Rothenberg, Appellant, v. Lester L. Seifried et al., Appellees.
    Gen. No. 42,481.
    Heard in the third division, first district, this court at the October term, 1942;
    opinion filed April 26, 1944.
    Shulman, Shulman & Abrams, and Sehwartzberg & Barnett, -for appellant; Meyer Abrams, of counsel; Jerome J. Sladkey, for certain appellee; George P. Novak, for certain other appellees.
   Opinion by

Justice Kilet.

Not to be published in full.


text:
    Louise Crystal Christofferson, Appellant, v. General Motors Corporation, Appellee.
    Gen. No. 42,521.
    Heard in the third division, first district, this court at the December term, 1942;
    opinion filed April 26, 1944.
    Wilhartz & Hirsch, for appellant; Samuel E. Hirsch, William Huger and Julian H. Levi, of counsel; Taylor, Miller, Busch & Boyden, for appellee; Preston Boyden, Cassius M. Doty and Richard A. Back, of counsel.
   Opinion by

Justice Kilby.

Not to be published in full.


author: Presiding Justice Dove.

text:
    William Spars, Administrator of Estate of Julia Spars, Deceased, Appellant, v. Amelia Werth and William Werth, Appellees.
    Gen. No. 9,926.
    Heard in this court at the February term, 1944;
    opinion filed April 27, 1944.
    Anson H. Brown and Weaver & Weaver, for appellant; Edwin R. Farrar, of counsel; Mark Bemis and Bathje & Woodward, for appellees; John S. Woodward, of counsel.
   Opinion by

Presiding Justice Dove.

Not to be published in full.


author: Presiding Justice Dove-.

text:
    Walter Fitch, Minor, by His Next Friend, Beulah Fitch, Appellant, v. Charles W. Thomson, Trustee, and Sam Smith, Appellees.
    Gen. No. 9,949.
    Heard in this court at the February term, 1944;
    opinion filed April 27, 1944.
    Emil J. Benson and Raphael E. Yalden, for appellant; Hyer & Gill, for appellees; Nelson J. Wilcox, for certain appellee.
   Opinion by

Presiding Justice Dove-.

Not to be published in full.


author: Justice Huffman.

text:
    Margaret Barrett, Appellant, v. Patrick Hennebry, Trustee Under Last Will and Testament of Mary Fitzgerald, Deceased, et al., Appellees.
    Gen. No. 9,941.

      Heard in this court at the February term, 1944;
    opinion filed April 27, 1944.
    Donovan, Bray & Gray, for appellant; Kirkland, Fleming, Green, Martin & Ellis, for certain appellees; Gariepy & Gariepy, for certain other appellee; James G. Holbrook, co-counsel for appellees; Walter C. Senne, Fred A. Gariepy and John Spalding, of counsel.
   Opinion by

Justice Huffman.

Not to be published in full.


author: Mr. Justice Huffman

text:
    Perry B. Goodwin, Adminstrator of Estate of Mabelle Goodwin, Deceased, Appellee, v. Country Club of Peoria, Appellant.
    Gen. No. 9,910.
    Opinion filed April 27, 1944.
    Hunter, Kavanagh & McLaughlin, of Peoria, for appellant.
    Cassidy, Sloan & Crutcher, of Peoria, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

This is an action by appellee administrator for the wrongful death of his wife, occasioned from swallowing a bone which lodged in her throat, while eating creamed chicken. The complaint consists of three counts, two based on negligence and one on breach of warranty. Trial resulted in a verdict for plaintiff. The defendant appeals from judgment rendered thereon.

Appellant is a nonprofit corporation under the statutes of this State relative to such organizations. Its activities are such as are common to a country club. The deceased was a member of the Chapter of D. A. E. at Peoria. This organization had secured permission from appellant for use of its club house for a luncheon and afternoon party to be held on June 16, 1941. The cost of the luncheon was charged directly to the chapter and it made settlement therefor, collecting from its respective members their proper charge. Creamed chicken was the meat course of the luncheon. It appears from the evidence, that although the meat course is termed creamed chicken, yet as a matter of fact, it was made from turkey, and that on occasions like this, it is usual and customary to use turkey, when possible, in preparing what is ordinarily termed creamed chicken.

Charles Jones, the cook, testified as a witness for appellee. He states that he had been a cook since 1914; that he had worked in various hotels, restaurants and clubs; that he had lived in Peoria since 1933; that he had been advised of the luncheon on the preceding day and that the meat course would be creamed chicken; that turkeys were boiled; that he deboned and diced the turkey meat; that he had prepared creamed chicken many times and that the method he used was the ordinary regular method uniformly followed by cooks; that the meat was diced into cubes of approximately one inch in size; that no one worked with him while he was deboning and dicing the meat; that the kitchen was large and well lighted; that he took the hones from the carcass and deposited them in the garbage can; that he did not drop any of the bones into the turkey meat; that after the meat was diced, he placed it in the cooler where it was to be kept until time to be served; and that there were no bones in the vicinity of where he placed the meat in the cooler.

It appears that some six or more people were employed in the kitchen of appellant. One other employee was called as a witness by appellee. She was the wife of the cook, Mr. Jones. She states there was a larger attendance at the luncheon than had been expected ; that it became necessary to prepare additional meat; and that she saw another cook deboning and dicing turkey for the additional guests.

During the course of the luncheon and while eating creamed chicken, Mrs. Goodwin swallowed a bone, which became lodged in her throat. She retired to the ladies lounge with a companion, who called Mrs. Goodwin’s husband, a practicing physician. He advised this lady to bring his wife immediately to the Jefferson building. Here he met them and took Mrs. Goodwin to Dr. Sneller’s office for examination and treatment. He states that Dr. Sneller gave him some powder for Mrs. Goodwin to take and directed that an ice pack be placed at her throat. She was then taken to the Proctor Hospital where Dr. Sneller saw her on the following day, June 17th. On the evening of that day, she returned home. She did not partake of solid foods but limited her diet to liquids. She was able to be up and about the house. Dr. Goodwin says she did not seem to be in a great amount of pain. This situation continued until June 20th, when Dr. Goodwin says he noticed Mrs. Goodwin was not swallowing properly, whereupon he called Dr. Sneller, who suggested that an X-ray should be taken. He says Mrs. Goodwin did not wish to have the X-ray pictures made on that day and the matter rested until the following Monday, June 23rd, when she was taken to the Proctor Hospital for X-ray pictures. Dr. Goodwin specialized in this work, and was in charge of such work in the Proctor and St. Francis Hospitals. He gave Mrs. Goodwin barium meal to drink. It was discovered there was an obstruction in the esophagus. Following the taking of the X-ray pictures, Dr. Goodwin took Mrs. Goodwin home and reported his findings to Dr. Sneller. Subsequently, and on June 23rd, Dr. Goodwin took Mrs. Goodwin to the St. Francis Hospital. He states that her condition at this time seemed to be the same as it had been. On the following day, June 24th, Dr. Sneller inserted an esophagoscope into the esophagus for the purpose of examination and of removing the obstruction. The operation consumed about 40 minutes. The record does not disclose what the results were and Dr. Sneller did not testify. Following this operation and later in the day, Mrs. Goodwin was removed to the Proctor Hospital. On the evening of this day, Dr. Jennings made an examination of Mrs. Goodwin. He states he found her abdomen distended and that she complained of pain in the left side of the chest. She subsequently developed difficulty in breathing and a collapsed lung. Dr. Jennings states he obtained the history of her swallowing a foreign body, which lodged in the esophagus. He gives as his opinion that her death was caused from infection resulting from such foreign body. Dr. Burroughs and Dr. Boynton were called in consultation on June 28th. Mrs. Goodwin died on that day. The history they obtained in the case was the same as above detailed.

‘ Dr. Goodwin says that in his opinion Mrs. Goodwin died from perforation of the esophagus, resulting in infection which spread into the chest cavity; that he does not know when the perforation occurred, but there was no temperature until after the operation with the esophagoscope.

Appellant urges four grounds for reversal. . First, that the presence of a bone which is natural to the type of meat served, is not a breach of the implied warranty placed by law upon a restaurant keeper that the food is wholesome and fit for human consumption; second, that there was no evidence of negligence on the part of appellant.; third, that plaintiff’s intestate was a licensee and not a guest; and fourth, that her death was the result of negligence in failing to provide adequate medical attention within a reasonable time.

Appellant caused to be submitted to the jury a special interrogatory as to whether the bone which plaintiff’s intestate swallowed was a part of the fowl from which the food in question had been prepared. The jury answered this interrogatory in the affirmative. Appellant does not question the finding of the jury in this regard, thus the source of the bone is not in dispute.

Appellant cites the following three cases in support of its first ground for reversal: Brown v. Nebiker, 229 Iowa 1223, 296 N. W. 366 (1941); Mix v. Ingersoll Candy Co., 6 Cal. (2d) 674, 59 P. (2d) 144 (1936) ; Silva v. F. W. Woolworth Co., 28 Cal. App. (2d) 649, 83 P. (2d) 76 (1938).

The casé of Brown v. Nebiker was a suit to recover damages for death due to a sliver of bone from a pork chop, which lodged in the deceased’s throat, punctured the esophagus, from the effects of which he died. The deceased was a salesman and attending a dinner of fellow salesmen on the evening of April 20th. The meat served was pork chops. While eating this meat, a sliver of bone became lodged in his throat. On the morning of April 21st, the attending physician inserted an esophagoscope in the throat of the deceased. In attempting to remove the sliver of bone it was pushed down into the opening of the stomach. The doctor at this time noticed a tear in the esophagus. This man died two days later. The trial court in that case directed a verdict for the defendant. This action was affirmed by the Supreme Court, on the ground that there was no evidence the pork chop contained any foreign substance. It was there held that bones which were natural to the type of meat being served, were not to be considered as foreign substance or such as to render the food in question unwholesome and unfit for human consumption. The court observed»that common experience of life dictates that one eating meats from animals, fowl, or fish, should do so with a knowledge that such food might contain pieces of bone peculiar to the type of meat being eaten, and that such were not to be considered foreign to the food being served, nor could it be said such bones rendered the food unfit for human consumption. The conclusion of the court was that one eating meat dishes, to which bones are natural, should do so with a due regard to such condition. The court discusses and quotes at length from the case of Mix v. Ingersoll Candy Co., supra. That action grew out of injuries received by the plaintiff from a chicken bone lodging in his throat while eating chicken pie at a restaurant. Two years subsequent to the Mix case, a second case of a similar character arose (Silva v. Woolworth Co., supra) which had to do with the plaintiff being injured by a fragment of turkey bone contained in roast turkey and dressing. That case followed the rule announced in the Mix case, the court holding that the criterion upon which liability was to be determined was whether the object causing the injury was foreign to the dish served. It then commented on the fact that bones in meat, fowl and fish were natural to such food and could not be considered as foreign thereto or as rendering the same unfit for human consumption.

Appellee relies upon the case of Bonenberger v. Pittsburg Mercantile Co., 345 Pa. 559, 28 A. (2d) 913 (1942). This case is also reported in 143 A. L. R. 1417. Following this case will be found annotations on the question here involved, which discuss both of the California cases. Other annotations of interest will be found in 105 A. L. R. 1042; 4 A. L. R. 1560; 47 A. L. R. 150; 35 A. L. R. 921; and 104 A. L. R. 1033. In the Pennsylvania case urged by appellee, the action was for recovery of damages due to a piece of oyster shell which lodged in the plaintiff’s esophagus and necessitated an operation for its removal. The trial court directed a verdict for the defendant, which on appeal was reversed and the cause remanded for a new trial. Plaintiffs in that case based their right of recovery upon a State statute, and the court there said that right of recovery was dependent upon the consideration to be given the statutory act in question. After a study of that case, we do not consider it persuasive in the case at bar. A review of the above case will be found in Temple University Law Quarterly, Vol. XVII, No. 2 (Feb. 1943).

It is generally considered that one who serves food to "be consumed upon the premises, impliedly warrants the same to be fit and wholesome. Cases of this State and many others will be found in support of this rule in 35 A. L. R. 922. However, such warranty should be construed in the light of common knowledge with reference to the nature and character of the food being served. Certain fruits and relishes containing seeds, are commonly served. It is also common knowledge that bone is as much a part of the carcass of animals, fowl and fish as the meat. The bone usually remains with the meat during the process of cooking and preparation for human consumption. As said in the Iowa case, common experience dictates that one eating the meat of animals, fowl or fish, should do so with the knowledge that such food may contain pieces of bone.

In most of the cases dealing with this general subject, the principal question is usually found to involve that of an implied warranty of fitness. In a majority of such cases the unfitness of which complaint was made, was where the presence of foreign matter in the food, or the diseased, decayed or otherwise spoiled and poisonous condition of the food itself, was involved. The instant case presents a situation involving the question of implied warranty of reasonable fitness of food for human consumption and whether such warranty is breached by the presence therein of a substance natural to the food being served, and not removed therefrom in the process of its preparation for consumption. The only cases we find dealing directly with this point are the three cited by appellant and the one cited by appellee. Reference has been had to the National Reporter System and the American Digest. No further cases were discovered. Although the rule that a restaurant keeper is liable for foreign substances in food served to patrons, and is held to impliedly warrant food to be fit and wholesome to be eaten, is well settled in this State, yet the precise question presented by this appeal presents a new situation. We do not believe the rule as established in this jurisdiction, exceeds an implied warranty that food served shall be wholesome and fit to be eaten. The importance of pure food to the public must not be ignored. Modern conditions require that establishments serving food shall be operated in a sanitary way and furnish food that is wholesome and fit to be eaten. However, such rule should be construed and applied in a reasonable manner, taking into consideration the common experience of life. When viewed in this light, it must be conceded that practically all meat dishes, whether they consist of beef, pork, fish or fowl, do contain bones peculiar to the food being served.

Appellant made motion for directed verdict at the close of the plaintiff’s evidence, which motion was denied. A similar motion was made at the close of all the evidence, which was likewise denied. The action of the court in such respect is assigned as error.

We are of the opinion the rule upon which appellant bases its first ground for reversal is a sound and well reasoned one, and should prevail in cases of this character.

In view of this situation, appellant’s motion for directed verdict was in order. The judgment is therefore reversed.

Judgment reversed.


text:
    Robert E. Spencer, Appellee, v. City of Peoria et al., Appellants.
    Gen. No. 9,938.
    Opinion filed April 27, 1944.
    J. Edward Radley, Corporation Counsel, and C. E. McNemar, Assistant Corporation Counsel, for appellants.
    McGrath & Copeland, of Peoria, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

Appellee brings mandamus to compel restoration to office as First Assistant Fire Marshal and for back pay during the time he claims to have been illegally ousted from such office. He makes the City of Peoria, a municipal corporation, Edward N. Woodreff, Mayor; Patrick W. Malone, Fire Marshal; Louis E. Kauffman, Comptroller; Lester J. Pratt, City Treasurer; John Buchele; and the Members of the Board of Fire and Police Commissioners of said city, defendants. It was stipulated that the electors of said city in 1910, adopted the provisions of the Fire and Police Commissioners Act (Laws of 1903, p. 97; ch. 24, par. 543 et seq.; now designated as Article 14, ch. 24, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 21.1367 et seq.~\); and has operated thereunder continuously since the adoption of said act.

Appellee alleges that he has been a member of the fire department of appellant city for approximately 16 years; that in May 1939, he was examined by the Board of Fire and Police Commissioners for the office of First Assistant Fire Marshal; that he passed such examination, was appointed and confirmed to said office, and qualified therefor by giving the required bond and filing oath. He further alleges that he continued to serve in said office up to and including May 6, 1941, on which date he alleges he was wrongfully and illegally ousted from such office and denied the right to further perform the duties thereof, by appellants; that he repeatedly requested to be permitted to resume such duties, but was denied such permission; that he notified the Board of Fire and Police Commissioners of the situation, and requested them to take such steps as necessary to enable him to resume and perform the duties of such office; that said board made no reply to such request nor took any action; that no written charges of any kind were ever filed against him for his removal or suspension from such office; that no hearing was ever had before the Board of Fire and Police Commissioners with respect to his suspension or removal from office; that said board had entered no order suspending him, from office, finding him guilty of any charges as cause for his suspension or removal," and had entered no order for his discharge. Appellee alleges that he was ever ready, willing and able to perform the duties in connection with said office. He charges that he was illegally and wrongfully denied the right to exercise the functions and perform the duties thereof and to receive the salary connected therewith. He prays that he be reinstated as First Assistant Fire Marshal of said city, and that he be reimbursed for the salary connected therewith for the time he was wrongfully and illegally prevented from performing the duties of such office.

The answer admits that appellee was the duly appointed and acting First Assistant Fire Marshal until the night of May 6, 1941, when it is alleged that he voluntarily abandoned said office, and failed to thereafter return and perform any duties in connection therewith. It is admitted that no charges were ever preferred against him and no claim is made that he was suspended or removed from office by the Board of Fire and Police Commissioners.

The court .found that appellee had been illegally and wrongfully ousted from said office and thereby deprived of..the right to perform the duties and receive the salary connected therewith. Writ was ordered issued commanding appellants to reinstate appellee as First Assistant Fire Marshal, and that he recover the compensation connected with such office during the time he had been denied the right to perform the duties thereof. Appellants bring this appeal from said judgment.

Appellant city was experiencing a change of Mayors. The inaugural ceremonies for the incoming Mayor were held on the evening of May 6, 1941. A change took place that night in the offices of Chief Fire Marshal and First Assistant Fire Marshal. Two witnesses testified for appellants. They are the persons who on the evening in question assumed the duties of Chief Fire Marshal and First Assistant Fire Marshal. It appears from their testimony that they attended the inaugural ceremonies together. Later in the evening they proceeded to the central engine house where appellee was then on duty as the First Assistant Fire Marshal. Mr. Patrick W. Malone assumed the office of Chief Fire Marshal, and Mr. John L. Buchele the office of First Assistant Fire Marshal. Mr. Buchele reached the central engine house at about 10:30 on the evening of May 6th. Mr. Malone arrived approximately ten minutes thereafter. Here conversations were had by the parties regarding their assuming the offices above indicated. Malone and Buchele testified regarding the conversation had between them and appellee at the time in question. The substance-of this conversation was, that appellee wanted to know what they were going to do with him, and that they advised him they could tell him nothing, nor do anything; that he would have to see the Mayor and the Board of Fire and Police Commissioners, because they could not place him without orders either from the Commission or the Mayor. The testimony of Mr. Malone discloses that appellee came to him on numerous occasions with respect to resuming duty, and at such times he adviséd appellee the same as on the night of May 6th, which was to the effect that he had no authority to place him, or to do anything in regard to his case; that he had received no orders to put him to work, and that he would have to see the Mayor and Board of Fire and Police Commissioners. This situation continued until September 1941, when this suit resulted.

Mr. Malone states that he was advised by one of the Fire and Police Commissioners at three o’clock in the afternoon of May 6th, that he would be made Fire Marshal, and that the Mayor also advised him to the same effect, and told him to go over to the central engine house and take charge; and he did so on the evening of May 6,1941, and that his salary as such officer began with May 7, 1941, and has continued since said date. He says that he knew Buchele was to take the office of First Assistant Fire Marshal held by appellee ; that he obtained such information on the evening of May 6th, when he and Mr. Buchele were at the council meeting.

Buchele was a captain in the fire department. His testimony with respect to the conversation of appellee on the night in question corroborates that of Mr. Malone. He states that he took charge as First Assistant Fire Marshal on the night of May 6, 1941; that this was the position then held by appellee; and that his pay began with the succeeding day, as in the case of the chief.

Appellee testifies that pursuant to his conversation with Mr. Malone, he went to see the Mayor but was unsuccessful in securing an interview; that he waited all day until 7 o’clock in the evening; that-he reported the situation to Malone, who told him to go back again, and that he would not be able to return to work until he had seen the Mayor. Appellee returned to the Mayor’s office on the following day where he advised the Mayor that Mr. Malone had sent him over for instructions as to his returning to work. He says he advised the Mayor that he wanted to return to work, and that the Mayor told him to, wait a few days and come back and see him. Appellee reported the results of this visit to Chief Malone. Various trips were made by appellee to see the Mayor and to see the Chief, all of which proved to be unavailing so far as his being returned to the force.

Appellants urge that mandamus is not a proper remedy in this case. We are of the opinion it is. People v. Dreher, 302 Ill. 50; People v. Thompson, 316 Ill. 11; Reed v. City of Peoria, 318 Ill. App. 271.

Appellants also urge that a judgment awarding writ of mandamus to compel reinstatement to office cannot include the payment of salary, citing in this respect the case of People v. Schmidt, 281 Ill. 211. The rule announced in this case is not applicable when the relator has been illegally or wrongfully removed from office and the salary thereof paid to another who was illegally appointed in his stead. Under such circumstances, the officer so illegally or wrongfully removed may maintain an action of mandamus to compel his reinstatement, and recovery of his salary during the period of his illegal removal. “A judgment awarding the writ of mandamus to compel reinstatement in office may include a command to pay salary.” People v. Thompson, 316 Ill. 11, 16, 17.

The judgment of the trial court is affirmed.

Judgment affirmed.