author: Mr. Justice Lupe

text:
    Beryl Cope and Roland F. Cope, Appellants, v. Alice Gepford, Appellee.
    Gen. No. 42,613.

      Heard in the third division of this court for the first district at the April term, 1943.
    Opinion filed February 14, 1945.
    Rehearing opinion filed May 18, 1945.
    Released for publication June 8, 1945.
    Alfred M. Loeser, of Chicago, for appellants.
    Lord, Bissell & Kadyk, of Chicago, for appellees; Bruce S. Parkhill, of Chicago, of counsel.
   Oh Rehearihg.

Mr. Justice Lupe

delivered the opinion of the court.

Plaintiff Beryl Cope (the former wife of Arthur K. Cope, deceased), and Roland F. Cope, the son of Beryl Cope and Arthur Cope, instituted this suit against Alice Grepford, doing business as “A. C. Inn,” and John Stephen Dennis, the owner of the tavern building, to recover damages under the civil liability provisions of the Liquor Control Act (Ill. Rev. Stat. 1943, ch. 43, par. 135 [Jones Ill. Stats. Ann. 68.042]) for injury to the means of support of both plaintiffs because of the alleged habitual intoxication of Arthur Cope in his lifetime, and by reason of the death of Arthur Cope resulting from being shot by Rose Cope, his third wife, while she was intoxicated.

The court, at the close of plaintiffs’ case directed a verdict in favor of defendant on the allegations of the complaint of Beryl Cope and Roland F. Cope for damages by reason of the alleged habitual intoxication of Arthur Cope. The case, however, was submitted to the jury on the complaint of Beryl Cope against the defendant Alice Gepford on the question of damages by reason of the death of Arthur -Cope. Alice Gepford was the only defendant served with process and the cause proceeded to trial against her alone. The jury returned a verdict of not guilty, plaintiffs’ motions for judgment notwithstanding the verdict and for new trial were denied and overruled, and judgment was entered for defendant on the verdict, from which plaintiffs prosecute this appeal.

The complaint alleges that in the month of March 1940, and for a long time prior thereto the plaintiff Beryl Cope was the divorced wife of Arthur Cope and the plaintiff Roland F. Cope was the son of said Arthur and Beryl, and that under the decree of divorce which was entered on June 20, 1929, Arthur Cope was required to pay the sum of $15 per week to Beryl Cope for the support and maintenance of herself and their son Roland Cope, and that Beryl Cope and Roland F. Cope were persons whom the said Arthur Cope was under a legal obligation to support; that on March 4, 1940, Arthur was in arrears in the sum of $2,000; that one John Stephen Dennis, defendant, who was the owner of premises at 1139 East 43rd street, Chicago, Illinois, rented said premises to defendant Alice Gepford for the purpose of selling alcoholic liquors therein, and that Alice Gepford with the knowledge and consent of John Stephen Dennis sold alcoholic liquors or caused the same to be sold or given to Arthur Cope while Arthur Cope was obligated to support the plaintiffs and that the intoxicating and alcoholic liquors caused Arthur Cope to be and become an habitual drunkard and in consequence thereof he wasted and squandered his money and became greatly impoverished, reduced, and degraded and ruined in body and mind and in his estate.

Paragraph 4 of the complaint charged that Alice Gepford sold to Arthur Cope alcoholic liquors, causing him to become an habitual drunkard and by reason thereof plaintiffs lost the support which by law they then and there were entitled to.

Paragraph 5 alleges that on the 4th day of March 1940, the defendant Alice Gepford sold or caused to be sold or gave alcoholic liquors to Arthur Cope and to Bose Cope, and that Bose Cope, in consequence thereof, became drunk and intoxicated, and, being so drunk and intoxicated, did discharge or cause to be discharged a certain firearm at the said Arthur' Cope, thereby greatly wounding and injuring him and, as a result of which injuries, he died on the 20th day of March 1940.

Paragraph 6 alleged that as a .direct and proximate result of the death of Arthur Cope, which was caused by reason of his intoxication and the intoxication of Bose Cope by drinking of the alcoholic liquors which had been sold or given or caused to be given by the defendant Alice Gepford to said Arthur Cope and Bose Cope at the tavern aforesaid, the plaintiffs did lose divers large sums of money which had already accrued to them by virtue of the decree of the superior court of Cook county, and lost large sums of money which otherwise would have accrued to them in the future.

Paragraph 7 of the complaint charges that by force of the statute, being ch. 43, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 68.001 et seq.], an action had accrued to the plaintiffs against the defendant, and they prayed for judgment in the sum of $50,000.

The answer admitted that defendant Alice Gepford leased the premises from John S. Dennis, but denied each and every other allegation in the complaint with the exception of certain allegations contained in the complaint of and about which she said she had no knowledge.

The statute under which this action is brought (Ill. Rev. Stat. 1939, ch. 43, par. 135 [Jones Ill. Stats. Ann. 68.042]), provides:

“Every husband, wife, child, parent, guardian, employer or other person who shall be injured in person or property or means of support by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action in his or her own name, severally or jointly against any person or persons who shall, by selling or giving alcoholic liquor have caused the intoxication, in whole or in part, of such person,” etc.

It will be noted that the act affords a right of 'action to one injured in person or property or means of support (1) “by any intoxicated person,” or (2) “in consequence of the intoxication, habitual or otherwise, of any person.” In the first instance the action is for a direct injury inflicted by an “intoxicated person,” and in the second instance it is for such injury as may be suffered “in consequence of intoxication” of any person.

It was said in the case of Whiteside v. O’Connors, 162 Ill. App. 108, in discussing the former Dramshop Act, at pp. 112 and 113:

“In King v. Haley, 86 Ill. 106, the injury for which damages were sought to be recovered were directly inflicted by one Koffman, while intoxicated, and the court in construing the ninth section of the act entitled Dram-Shops, held that it provided for two separate and distinct causes of action — one for the direct injury inflicted by ‘an intoxicated person,’ and the other for such damages as might arise ‘in consequence’ of such intoxication.”

The evidence shows that Beryl Cope, one of the plaintiffs herein, was the divorced wife of Arthur K. Cope, and that Boland F. Cope was their son; that Boland became of age on July 13, 1939; that on June 20, 1929, a decree of divorce was entered in the superior court of Cook county on the complaint of the plaintiff herein, wherein she was awarded $15 per week for permanent alimony and support for herself and Boland, their child, in pursuance of which there was due and owing plaintiff the sum of $2,000 at the time of filing the complaint. The record further shows that Alice Gepford, one of the defendants, owned and operated a tavern located at 1139 Bast 43rd street, Chicago, which was known as the A. C. Inn; that she had received a license from the City of Chicago on August 16, 1939, to operate the tavern. Arthur Cope and his third wife, Bose Cope, were employed by the defendant as entertainers in the tavern. After the closing hour which occurred around 2:00 a. m. of March 4, 1940, Arthur and Bose Cope left the tavern, and he was next found in his apartment shot in the abdomen, from which injury, on March 20, 1940, he died.

Many witnesses testified as to the sobriety and insobriety of both Arthur and Bose on the night of the shooting in question. On that point there is a conflict of the evidence. There is evidence that when the police officers arrived at the apartment of the Copes they found a gun under the radiator in the hall outside of the apartment; they also found in the apartment a holster with Arthur Cope’s name on the same and some pellets; that Rose Cope was sitting on the bed and hysterical, and that in their opinion she was intoxicated; and that Arthur Cope was lying on his back on the floor with wounds in his stomach or abdomen, and that they noticed the odor of liquor on his breath. Mrs. Emma Smith, the housekeeper of the apartment which was occupied by the Copes, testified that she had been awakened by the fumbling of Mr. Cope at the door of his apartment; that the Copes’ apartment adjoined hers, a wall separating their bedroom from the Copes’ bedroom; that 10 or 15 minutes after Cope entered his apartment Rose Cope came home, and that shortly thereafter she heard loud talking and argument and then heard a shot; that no one else was in the Copes’ apartment nor did she hear any other voice than of Arthur or Rose. A police officer testified that upon finding the gun he discovered the odor of discharged powder on it. It was stipulated that Arthur Cope came to his death on March 20, 1940 as a result of the wounds received on March 4, 1940.

Complaint is made by plaintiff that the court erred in granting defendant’s motion at the close of plaintiffs’ case; in instructing the jury to find the defendant not guilty as to the claim of Roland F. Cope, and as to the claim of Beryl Cope for damages in consequence of habitual intoxication of Arthur Cope; in giving and refusing to give instructions; in its ruling on the admission of evidence; and in refusing to grant a new trial on the ground that the verdict is against the manifest weight of the evidence.

As to the first point raised by plaintiffs to the propriety of the court’s action in directing a verdict for the defendant, as to the claims for damages of Roland F. Cope and Beryl Cope on the question of habitual intoxication of Arthur, we feel the court was justified in directing the verdict for the defendant on the question of the habitual intoxication of Arthur, as the evidence, the circumstances in evidence, and all reasonable inferences that could be gathered therefrom, failed to establish that Arthur Cope was an habitual drunkard. The court committed no error in directing a verdict for defendant as to the claim for damages of Boland F. Cope, for the further reason that Boland F. Cope, plaintiff, arrived at his majority before the occurrence in question. (Jury v. Ogden, 56 Ill. App. 100.) In view of our holding on this point we feel the court committed no error in its refusal to instruct the jury on the question of the habitual intoxication of Arthur Cope.

Complaint is next made that the court erred in its refusal to admit competent evidence on behalf of plaintiff which tended to prove former intoxication of Bose Cope, and in support of plaintiffs’ contention the case of Whiteside v. O’Connors, 162 Ill. App. 108, is cited. After a careful examination of that case, we find that the rule laid down therein has no application to the present case. The evidence of former intoxication of Bose Cope was immaterial to the issues in this case. Whether or not Jtose Cope was an habitual drunkard or had been intoxicated before the date of the occurrence in question was wholly immaterial and irrelevant. The sole question as to her intoxication would be limited to March 4, 1940 or immediately before or at the time of the occurrence in question.

It is next contended by plaintiff that the court committed error in the admission of certain pleadings in evidence. These pleadings referred to the bill for divorce and various petitions in reference to the question of alimony and noncompliance with the order of the decree in reference thereto. The court permitted certain portions of pleadings to be read to the jury on behalf of both plaintiffs and defendant. The record shows that plaintiff presented the decree of divorce, which was properly received in evidence, and she also testified as to the amount due her under said decree which had been entered in her favor against Arthur Cope in the superior court of Cook county. She further testified as to the manner in which he made payments under said decree to her and that at the time of trial there was due approximately $2,000 as alimony for herself and support for their son Boland. She, being the divorced wife of Arthur and receiving support by reason of the decree of the superior court, had a right to maintain this suit by virtue of the provisions of the Act.

The evidence offered by the defendant tending to show that the deceased had not made any payment to plaintiff or had failed to comply with the decree or had paid an amount greater than plaintiffs testified that she had received, was properly admissible by way of impeachment of the testimony of the plaintiff as to the amount that she claimed was due and unpaid under the terms of the decree at the time of death of her divorced husband.

It is next urged that the court erred in" giving certain instructions and the refusal to give other instructions offered on behalf of plaintiff. On behalf of defendant the court gave the following instructions :

“Before the plaintiff can recover from the defendant, she must prove each of the following five propositions by a preponderance of the evidence.
“1. That Arthur Cope was shot by Bose Cope on the occasion in question.
“2. That at the time Arthur Cope was shot, if you find he was so shot, Bose Cope was in fact intoxicated.
“3. That the defendant, Alice Gepford, or her agents, sold or gave intoxicating liquor to Bose Cope, which contributed to cause her intoxication, if you find she was intoxicated.
“4. That such intoxication, if any, was the proximate cause of such shooting, if any.
“5. That as a result of the shooting of Arthur Cope, if any, the plaintiff, Beryl Cope, was injured in her means of "support.
“If the plaintiff has failed to prove any One or more of the foregoing elements by a preponderance of the evidence, then under the law you must find the defendant not guilty.”

We are of the opinion this instruction does not correctly state the law and in giving the same the court committed error.

We have hereinbefore pointed out the two theories under which plaintiffs in dram shop cases may proceed. Defendant argues, and we agree, that plaintiffs’ case was tried on the “in consequence” theory. This is borne out by the evidence and the fact that plaintiffs submitted no instructions on the “direct” theory. Their instructions were limited to the “in consequence” theory. But the instruction complained of, given by the court in defendant’s behalf, injected the “direct” theory into the case, it erroneously stated the law, and, moreover, was peremptory. It required, among other conditions of plaintiffs’ recovery, that they prove by a preponderance of evidence that Rose Cope shot' Arthur Cope, and that the intoxication of Rose was the proximate cause of the injury. The first condition noted is not consistent with the theory which defendant insists was adopted exclusively by plaintiffs.

This is enough to condemn the instruction. We point out, however, that the instruction has an additional defect, for while it requires proving of the shooting as in a “direct” theory, it required proving of the cause as in an “in consequence” theory.

It is the law of this State that when the action is for an injury resulting from the direct affirmative act of an intoxicated person the doctrine of proximate cause has no application,, and, when liability accrues upon proof of that fact, but where the action is for an injury resulting “in consequence of intoxication, habitual or otherwise,” it is incumbent upon the plaintiff to show that such intoxication was the proximate cause of the injury. (Haw v. 1933 Grill, Inc., 297 Ill. App. 37, 43; Whiteside v. O’Connors, 162 Ill. App. 108; King v. Haley, 86 Ill. 106.)

Although there are many other points raised, we deem it unnecessary to consider them at this time, as the case must be retried for the reasons hereinabove given.

The judgment of the superior court of Cook county is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.

Judgment reversed and cause ' remanded.

Burke, P. J., and Kiley, J., concur.


source: Caselaw Access Project

author: Mr. Justice. Lupe

license: Public Domain

text:
    Arthur G. Hintze et al., Appellees, v. Gertrude C. Allen et al., Appellants.
    Gen. No. 42,703.

      Heard in the third division of this court for the first district at the December term, 1943.
    Opinion filed May 18, 1945.
    Released for publication June 8, 1945.
    Hoffman, Hoffman & McCabe, of Chicago, for appellants; Harry Hoffman and Irving Hoffman, both of Chicago, of counsel.
    Thomas Tighe and Chardes Liebman, both of Chicago, for appellees.
   Mr. Justice. Lupe

delivered the opinion of the court.

Plaintiffs are the owners in joint tenancy of lot 32 in block 6 of Manheim Eoad and Twenty-second street subdivision which is located within the Village of Westchester. Westchester is approximately five miles west of the limits of the City of Chicago. Plaintiffs’ deed of conveyance contained covenants restricting until 1970 the use of the lot for any purpose other than the construction of two- or three-story and basement apartment buildings. The buildings under the restriction were to be constructed of brick, stone, tile, and concrete or similar material, said buildings to cost not less than a certain amount therein stated. The complaint alleged that the plaintiffs brought their suit to modify said restrictions in so far as they refer to 217 lots adapted for residential purposes. A decree was entered modifying the restrictions so that' the lots owned by plaintiffs and others joining with them might be used for one-, two- or three story and basement residential buildings which were permitted to be constructed at a lower cost than named in the restrictions. This appeal followed.

In the complaint it is alleged that Ella Westphal, as owner of the property involved in this proceeding, on September 23, 1925, executed and filed in the office of the registrar of titles of Cook, county a plat subdividing the premises into lots and blocks; that the plat bore a legend with reference to the types of buildings to be erected upon said lots, known as building restrictions: Lots fronting on Brainard avenue and 22nd street may be used for business purposes; all other lots may be used for two- or three-story and basement apartment buildings; all buildings must be constructed of brick, stone, tile, and concrete or similar materials. Thereafter on December 1, 1925, the Chicago Title & Trust Company, a corporation, as trustee, became the owner of the premises, and it executed and filed in the office of the registrar of titles of Cook county, Illinois, a declaration which was joined in by Ella Westphal, which declaration contained building restrictions as to all the lots in the subdivision in question. That plaintiffs, on August 7, 1939, became the owners and acquired title in joint tenancy to lot 32 in block 6 of the subdivision, and that they are now the owners of said lot; that on October 3, 1925, the subdivision was incorporated within the village limits of the Village of Westchester; that the village covers an area of 3% square miles and has a population of approximately 600 persons; that the village was incorporated on October 3, 1925, as a result of the extension of the Chicago Bapid Transit Company to the area now covered by the village. It is alleged that the extension of the elevated railway, was conceived and executed during the real estate “boom” in Chicago and was based upon unreasonable and impossible expectations by the promoters of the extension and persons interested in selling the neighboring real estate, and that in order to make it appear that the subdivision in question had a higher value so that greater prices could be obtained for the lots, the restrictions complained of were put on the property, and' the purchasers were told that the portions of the property adapted for residential purposes were peculiarly suited for two- and three-apartment buildings as provided for in said restrictions; that the purpose of the restrictions was to maintain the premises at a higher value and to enable them to be utilized on the basis of their highest economic value. It is further alleged that said representation proved to be wholly groundless. It then describes the population of the Village of Westchester, the nature of the buildings constructed within its limits, and sets forth that all building substantially was had prior to 1929; that no structure of any kind has ever been built on any of the* lots in this subdivision since the filing of the plat; that it had been impossible to obtain capital to finance the construction of two- and three-apartment buildings on the portion of the subdivision adapted for residential use; that the subdivision, by virtue of the changing financial and general conditions, is now well adapted for the construction of one-family residential buildings, and is wholly unadapted, because of the changing financial and general conditions, for the construction of two- and three-apartment residential buildings that so long as the restrictions in question remain of record against the premises they constitute a cloud on the title and render all of said real estate wholly valueless for any purpose; that in adjoining subdivisions which were restricted to two- and three-story apartment buildings, no such buildings 'had been built, but that in such subdivisions, when such restrictions were lately removed, the building of one-family buildings on a large scale occurred immediately. The complaint then alleges that if the restrictions be removed from the subdivision all of the lots thereof will immediately obtain a substantial economic value and that loans will be made available for the construction of single-family dwellings, and the community as a whole will be greatly benefited; that plaintiffs bring suit to modify the restrictions in so far as they refer to the lots adapted for residential purposes, and also for a decree providing for the construetion of one-family dwellings thereon; that the suit is brought not only on behalf of plaintiffs but on behalf of all persons interested in the lots who may seek to join and contribute their share of expenses of conducting the'proceedings. A decree is sought charging such reasonable expense against all persons who choose to take the benefit of these proceedings. All persons interested in lots in the subdivision are made parties defendant, and plaintiffs pray in their complaint, that the court by its decree modify the building restrictions to permit the erection of one-unit family residence dwellings at a cost of not less than $4,500; that the court may perpetually enjoin all persons from attempting to enforce the building restrictions with respect to the lots adapted for residential purposes, and that the court shall determine the expense of this proceeding including necessary disbursements and reasonable attorney’s fees, and that the decree provide for the payment of such expenses and disbursements by all persons who may choose to claim the benefit of these proceedings prior to or after the entry of a decree.

Answers were filed by certain defendants, which admitted the existing restrictions and neither admitted nor denied the other allegations of the complaint but averred that the allegations in the complaint, with reference to the beneficial effects to ensue as'a result of the removal of the restrictions were mere conclusions, speculations, and hopes of the plaintiffs, and asked that they be stricken. The answers further set forth that the defendants had purchased their lots on the basis of the restrictions and had paid the full price for said lots in the belief that said restrictions will give the real estate a higher value than if the restrictions were removed, and that the defendants feel and know that if said restrictions were removed or modified in any way the value of their lots would immediately be reduced; that the restrictions were reasonable and not against public policy and that under these restrictions one-story buildings may be erected at a cost of not less than $5,000, whereas, plaintiffs desire to modify the restrictions to enable the owners to erect one-story buildings at a cost of not less than $4,500, and that said modifications cannot in any way improve the situation and cause or bring about the results -as described in the complaint. Defendants further aver that they answered the complaint not only on behalf of themselves but on behalf of all other persons interested in the lots who desire to join in the defense of the suit and who desire to partake of the benefits of any decree which may be entered herein, upon contributing a fair and just amount of the expense in defending the proceedings. The answers denied that plaintiffs were entitled to the relief sought.

While this case was pending in the trial court, the Appellate Court of the First District decided the case of Ockenga v. Aiken, 314 Ill. App. 389. The exact language and allegations contained in the complaint in the present case were used in the Ockenga case. The ruling affirmed the decision of the superior court dismissing the bill for want of equity. There was no evidence heard in the Ockenga case and the ruling of the court was had on a motion to strike the complaint. After the decision in the Ockenga case, plaintiff in the instant case was granted leave to file an amendment and supplement to the complaint, and in it alleges that the promoters of the subdivision, in order to sell the lots in question and to inflate the selling price thereof, and to induce prospective purchasers to pay large prices therefor,, made representations to the purchasers that the lots were suitable for the immediate construction of two- and three-flat apartment buildings, and that within a short time a large number of apartment buildings would be built upon the lots; that the promoters expressly and impliedly represented that apartment buildings would continue to be economically feasible and that there would be a free and active market for the lots subject to such restrictions. It alleged further that the character of the neighborhood at the time of the placing of said restrictions was such that it could have reasonably been supposed that the lots were suitable for the erection of apartment buildings in accordance with the restrictions, but there has occurred a radical change in the character of the neighborhood so that for many years in the past the neighborhood has not been suitable for the construction of buildings in accordance with said restrictions.' That people who were living in Westchester at the time the restrictions were placed upon the property were those of middle type, accustomed to pay rentals from $88 to $125 per month, but that such persons have moved out of the village, and that persons now living there are able and accustomed to pay no more than $45 to $55 per month for apartments; that as a result of the war and preparations therefor there has been constructed in the western suburbs a large number of defense plants; that as a result of the construction of said plants there has arisen an acute shortage of housing facilities for people who will shortly be needed in work in said plants; that the subdivision in question is almost in the geographical center of the defense plant area; that by reason of the war the only housing construction now being authorized by the war priorities board is defense housing, consisting of single dwelling family residential units, to cost not exceeding $4,500, and that there are also being constructed large blocks of cheap residential buildings, commonly known as ‘' row house ’ ’ dwellings. It further alleges that because of the radical change in the neighborhood due to the construction of defense plants and the change in character of the neighborhood due to the class of persons who now reside therein, the highest and best use of said land, and the only feasible use thereof, is for residential construction of the character now approved by the federal housing authority for single family units.

Certain defendants filed their answers to the amended and supplemented complaint, denying the material allegations thereof. They further denied that the plaintiff was interested in relieving shortage of housing facilities, and alleged that the plaintiffs were only interested in taking advantage of the present war situation for their personal and selfish interests, and to the detriment and harm of the defendant and defense workers. They denied that housing shortage could he relieved- by merely lessening the restrictions on the lots owned by the plaintiffs.

The case was referred to a master and upon his report the court entered a decree modifying the restrictions as prayed in the complaint. The decree further provided that it was impossible at the time of the entry of the decree to anticipate the number of persons who would choose to come in and partake of the benefits of the decree. It further found that the suit was properly brought by plaintiffs for the use and benefit not only of themselves but of all persons who might choose to come in and partake of the benefits thereof or of the benefits of the decree; that all of the defendants have a common and identical interest in a common and identical question of law and fact namely, the question of whether the building restrictions affecting the residential lots in the subdivision aforesaid of the plaintiffs and those who adopt their position should be modified; and that the defendants who have been served with process herein are truly representative and can and do adequately represent, defend and advance the interests of all of the defendants herein and all persons interested in all of said lots upon the doctrine and theory of representation; and that all persons interested in the real estate affected by the restrictions first above mentioned have either been duly served with process of this court or are properly and fully represented in this proceeding, so that this court has jurisdiction over them and they are bound by this decree.

Defendants contend that the court erred in holding that the instant case comes under the classification of a representative suit, whereas plaintiffs contend that the instant suit was brought by plaintiffs not only on their own behalf but on behalf of those who actually wish to come in with the plaintiffs, and that the restrictions are modified on only four lots, three lots owned by the plaintiffs and the lot of Miss Boughton and they further argue that the restrictions remain in full force and effect as to all other lots. Defendants rely upon the case of Otto v. Alexander, 383 Ill. 482, in support of their contention. In that case the court said, at pages 484-488:

“The prayer of the complaint was that the court modify the building restrictions as to certain lots and provide, by its decree, that on said lots one-unit family-residential dwellings may be erected at a mininmTm cost of $4500. This, of course, would constitute a reformation of all the deeds by striking out the restrictions contained therein, and inserting an entirely different restriction.
“As already observed, there were four plaintiffs named in the complaint. It was alleged, however, that they brought the suit for their own benefit and for the benefit of all persons interested in lots in the subdivision who desired to join in the prosecution of the suit, or who may, thereafter, desire to partake of the benefits of any decree entered.
i" . . . .
“In paragraph 21 it is alleged that in addition to the persons named in the preceding paragraphs, and who were made defendants to the suit, there are still others who have, or claim, some right, title, interest or lien in, to or upon, the real estate described in the complaint. It is further alleged that the names of such persons are also unknown, and cannot, on diligent inquiry, be ascertained. It is averred that the.se persons are also made parties to the suit, as ‘unknown owners.’ It is alleged in said paragraph, ‘that the defendants who will be served with process herein, are directly representative of the interests of all other persons who may be interested in said premises, and as such representatives, are likewise made parties hereto, so that in any decree herein, the interests of all other persons not served, who may have an interest in said premises,, may be determined, and such persons not served ought to be held bound by such decree on the principle of representation.’
" . . . . .
“At the threshold of the inquiry, we are confronted with the question of whether a suit of this character can be maintained by a part, only, of the lot owners purporting to represent all the owners of lots in the subdivision, and against a part, only, of the named and the ‘unknown’ defendants vicariously represented by the comparatively small number of defendants actually served with process.
“The purpose of this suit is to cancel the restrictions contained in all the deeds by which each lot owner in the subdivision acquired title to the lot or lots owned by him, and to substitute a new and different restriction in each of those deeds. The restrictive agreement did not purport to constitute a joint obligation or liability. It constituted the several obligations of all the lot owners and those claiming under them. The restrictive covenant ran severally to every other owner of a lot in the subdivision. Every lot owner was a party to the covenant in each deed, and was directly interested therein, as a party for whose benefit it was made.
“One of the objections raised by the motion to dismiss is that if the relief sought by the plaintiffs was granted, it would deprive the defendants of their property without due process of law. The court, in sustaining the motion, expressly held that the entry of a decree cancelling or modifying the restrictions sought to be set aside, would deprive the defendants of their property without due process of law, in violation of the State constitution and the fourteenth amendment to the constitution of the United States.
“The same question was involved in Lee v. Hansberry, 372 Ill. 369. That case involved the same character of restrictive covenants. It was a suit to enforce a restrictive covenant contained in a contract signed by some 500 property owners, owning property in a certain district in the' city of Chicago. It appeared in that ease that prior to the institution of the suit, a similar suit had been brought by another property owner in the restricted territory, purportedly against all other property owners signing the agreement, as a representative suit. The prior case is Burke v. Klieman, 277 Ill. App. 519. In disposing of the Eansberry case this court held that the judgment or decree in Burke v. Klieman, 277 Ill. App. 519, was res judicata and constituted a bar to the action in Lee v. Hansberry, 372 Ill. 369; that the Burke v. Klieman suit was a representative suit, involving the same restrictive agreement and covenant, and was binding upon all the parties to the agreement, notwithstanding they were parties to the suit only by representation.
‘ ‘ The Supreme Court of the United States, however, reversed the judgment of this court. It held that a representative suit could not be maintained by a part, only, of the property owners for whose use and benefit the restrictive covenants were made. In the course of the opinion, that court said: ‘It is plain that in such circumstances all those alleged to be bound by the agreement would not constitute a single class in any litigation brought to enforce it. Those who sought to secure its benefits by enforcing it could not be said to be in the same class with or represent those whose interest was in resisting performance, for the agreement by its terms imposes obligations and confers rights on the owner of each plot of land who signs it. If those who thus seek to secure the benefits of the agreement were rightly regarded by the State Supreme Court as constituting a class, it is evident that those signers or their successors who are interested in challenging the validity of the agreement and resisting its performance are not of the same class in the sense that their interests are identical so that any group who had elected to. enforce rights conferred by the agreement could be said to be acting in the interest of any others who were free to deny its obligation. Because of the dual and potentially conflicting interests of those who are putative parties to the agreement in compelling or resisting its performance, it is impossible to say, solely because they are parties to it, that any two of them are of the same class. Nor without more, and with the due regard for the protection of the rights of absent parties which due process exacts, can some be permitted to stand in judgment for all.’ The court there concluded that an attempt to litigate the validity of restrictive covenants in a representative suit, to which some of the parties were parties by representation, only, was a denial of due process of law, in violation of the fourteenth amendment. (Hansberry v. Lee, 311 Ill. S. 32, 61 S. Ct. 115, 85 L. ed. 22.) This decision is conclusive and is binding on this court. The questions raised in this case are no different from the questions considered and decided by the court in that case.”

Plaintiffs argue in their brief thát the Supreme Court in Otto v. Alexander did not decide that case on the merits but stopped on the threshold by holding that the doctrine of representation did not apply. We see no merit in this argument.

We feel that the question of the right of plaintiffs to maintain this suit was precisely the question upon which Otto v. Alexander was decided. That case is therefore controlling here. Since plaintiffs have not the right to maintain this suit, we need consider none of the other points raised in the briefs. The above case had not been decided when the chancellor entered the decree appealed from herein, and he therefore did not have the benefit of that decision.

Accordingly, the decree is reversed and the cause remanded to the superior court with directions to dismiss the complaint for want of equity.

Reversed and remanded with directions.

Burke, P. J. and Kiley, J., concur.


text:
    Chicago Title and Trust Company, Plaintiff, v. Joseph Wolchinovesky et al., Defendants. Abigail Gillmer, Appellee, v. Harry Cohen, Appellant.
    Gen. No. 42,761.

      Heard in the third division of this court for the first district at the October term, 1943.
    Opinion filed May 18, 1945.
    Released for publication June 8, 1945.
    H. J. Rosenberg, Irving S. Berman and Samuel B. Barnett, all of Chicago, for appellant; Abraham Miller, of Chicago, of counsel.
    Maurice H. Kamm and Maurice L. Davis, both of Chicago, for appellee; Maurice L. Davis, of Chicago, of counsel.
   Mr. Justice Lupe

delivered the opinion of°the court.

This is an appeal by Harry Cohen, counterclaimant, from an order striking his answer and counterclaim and dismissing the same for want of equity.

A decree of foreclosure and sale was entered in this cause on June 26, 1937. This decree found that there was due to complainant Chicago Title & Trust Company, a corporation, as successor trustee, from defendant Joseph Wolchinovesky the aggregate sum of $493,100.11, and ordered the sale of the premises in the event said amount had not been paid. The same not having been paid, a sale was had and on June 17,1942 an order was entered approving the sale pursuant to said decree. On September 24, 1942, the master’s report of distribution was approved by the court and a deficiency decree entered against Becky Clemitz, as administratrix of the estate of Joseph Wolchinovesky, deceased, in the sum of $557,880.21. In this order the court reserved jurisdiction of the matters which were reserved by the decree of June 26, 1937, wherein the court reserved jurisdiction to enter such orders not inconsistent with the decree as might seem necessary or proper to execute or enforce the terms of the decree, and to enter a personal decree against Joseph Wolchinovesky for any deficiency on the sale. The order entering the deficiency was declared by the decree to be a lien upon the rents, issues and profits from the premises foreclosed upon, during the statutory period of redemption. The record discloses an order was entered on June 27, 1936, that all further proceedings in the cause hereafter be governed by the provisions of the Civil Practice Act.

On December 15, 1941, Abigail Gillmer filed her suit in the superior court of Cook county for a strict foreclosure of a second mortgage on the same premises; on March 17, 1942, a decree of strict foreclosure was entered, and on June 19,1942, pursuant to said decree, a master’s deed was issued, conveying title to the premises to Abigail Gillmer. On November 9, 1942, Abigail Gillmer redeemed from the first mortgage foreclosure sale. On January 8, 1943, Gillmer filed her petition in this cause alleging that she was the owner of the equity of redemption and had redeemed from the sale under the first mortgage foreclosure decree; that she was the owner of the premises subject only to the rights of the first mortgage bondholders who were entitled to receive the net income derived from the premises during the remaining portion of the period of redemption. Gillmer requested the court for leave to deposit the sum of $6,500 with the complainant Chicago Title & Trust Company, successor trustee, in full for the net rents, issues and profits that might accrue from the premises during the remaining period of redemption, from February 1, 1943, to August 31, 1943, and that possession of the premises be delivered to her.

On January 15, 1943, Harry Cohen, the owner of three first mortgage bonds in the sum of $500 each, filed his answer and counterclaim to Gillmer’s petition. The chancellor treated the counterclaim as an additional answer, so that the allegations of both of Harry Cohen’s pleadings were treated as an answer by him to the petition of Gillmer. Counsel for Cohen contends that the chancellor held the proceedings herein were not governed by the Civil Practice Act and therefore no counterclaim could be maintained by Cohen. With this contention we cannot agree.

The written opinion of the chancellor was made part of the record in this case. We find upon an examination of the opinion the chancellor construing the applicable provision of the Civil Practice Act found,

“Under Section 38 of the Civil Practice Act any demand by one or more defendants against any one or more plaintiffs or against any one or more defendants may be'pleaded as a counterclaim. Under this section it is not contemplated that rights of parties not parties to the record may be settled and determined upon a counter-claim filed after the issues have been disposed of on the. main case, and with reservation of jurisdiction only as to distribution of the amount collected during the statutory period of 'redemption. The counter-claim filed herein is not filed against the plaintiffs nor is it filed against any of the defendants to this cause, but said counter-claim seeks the adjudication of the rights of one Harry Brainin who is not a party defendant herein except as it is attempted to make him one by said counter-claim.
“The court, therefore, holds that no counter-claim can be maintained herein and said Harry Brainin cannot now be made a defendant herein and compelled in this cause to try the issues raised by said counterclaim. The court, however, will pass upon the answer of said Harry . Cohen, and will treat the counter-claim of Cohen as an additional answer to the petition of Abigail Gillmer. ’ ’

We are of the opinion that the chancellor was correct in his ruling. This cbunterclaim is not between the parties to the suit and therefore was not proper under the provisions of the Practice Act. (Countiss v. Whiting, 306 Ill. App. 548, 552.)

At the time G-illmer filed her petition herein, the court had long prior thereto entered decrees with reference to the forclosure of the first mortgage trust deed, and approval of the salé and distribution of the proceeds of sale, so that the only jurisdiction the court retained was with reference to the collection of rents, issues and profits from the premises during the redemption period and distribution of the same to the parties entitled thereto.

The trial court therefore had jurisdiction to pass upon any question which would affect the distribution of the motíéys collected during the period of redemption, but had no jurisdiction to pass upon any question which had previously been determined by the decree of the foreclosure and sale, the decree approving the sale and the decree approving the distribution of the proceeds of the sale. All of these decrees were final in their nature and all questions determined by these decrees could not again be passed upon by the trial court in this proceeding. No matter what pleading Cohen might file, or by what name he should designate it, the trial court could only pass on the questions which would affect the distribution of moneys received from the rentals of the property during the redemption period.

The questions raised by Cohen’s pleadings which refer to the distribution of moneys collected during the redemption period are: (1) the question of merger of the $200,000 of bonds claimed to be owned by Harry Brainin with the title also claimed to be owned by Brainin; and (2) the question of the subordination of Brainin’s bonds. Under the reserved jurisdiction of the court the trial court had no jurisdiction under any pleading by Cohen to determine whether the equitable title of Brainin became subject to the lien of the full amount found due under the foreclosure decree, to determine whether Brainin became obligated to pay the full amount of the deficiency decree or to determine that Brainin should be required to repay the money he had received upon bonds secured by the first mortgage trust deed as his pro rata share of the proceeds of sale. Those could only be determined in separate suit to which Brainin was a party and which had jurisdiction of the subject matter of those questions. The only matters that we are called upon to determine in this state of the record are whether the allegations of Cohen’s pleadings, whether by answer to Grillmer’s petition or by counterclaim, show a merger of the bonds owned by Brainin with the title, and whether the Brainin bonds became subordinate to the other bonds secured by the first mortgage trust deed.

On the question of merger, it is well settled in this State that merger is a question of intention, and that no merger of a lesser with a greater' estate will result unless it is shown that the party ydto owns the two estates actually intended that a merger should result. In the case of Moffet v. Farwell, 222 Ill. 543, the court in passing on the question of merger, said (p. 548):

‘ ‘ The principal question in this record is, whether, by the acceptance by Charles B. Farwell of a deed from Crain, the mortgage became merged in the fee and ceased to be a.prior lien on the premises as against the judgment held by plaintiff in error. Whether a merger results from a greater and less estate uniting in the same person depends upon what will best subserve the purposes of justice and the intention of the parties. This court has held the question always to be one of intention, and that the interests of the parties and their intentions are controlling considerations. (Richardson v. Hockenhull, 85 Ill. 124.) ‘The intention is the controlling consideration, where it has been made known dr can be inferred from the acts and conduct of the party, and the court will look into all of the circumstances of the case to ascertain his real intention. If it appears that he intended to discharge the encumbrance and rely exclusively upon his newly acquired title, the encumbrance is regarded as extinguished and cannot afterward be set up to strengthen and support that title. If no intention has been manifested, equity will consider the encumbrance as subsisting or extinguished, as may be most conducive to the interests of the party. ’ (Campbell v. Carter, 14 Ill. 286.) In Edgerton v. Young, 43 Ill. 464, it was held that whether a merger resulted from a greater and less estate meeting in the same person depends upon the intent and interest of the parties, and that a court of equity will keep alive both estates if it appears necessary to the ends of justice to do so. It was said in Shippen v. Whittier, 117 Ill. 282: ‘The conveyance of the mortgagor’s estate to the mortgagee does not operate as a merger, in equity, unless it was intended to have that effect.’ These principles are sustained by Lowman v. Lowman, 118 Ill. 582, Shaver v. Williams, 87 id. 469, and Farrand v. Long, 184 id. 100.”

The same principle is announced in Hooper v. Goldstein, 336 Ill. 125; Continental Illinois Nat. Bank & Trust Co. of Chicago v. Cunningham, 291 Ill. App. 180; Albers v. Westberg, 299 Ill. App. 41; and Winters v. Polin, 309 Ill. App. 458.

The pleadings filed by Cohen do not allege sufficient facts on which a merger can be based. He alleges that as a result of the acquirement of title through the strict foreclosure proceeding and the ownership of the $200,000 in bonds, a merger resulted, but this is a mere conclusion of the pleader and an .erroneous conclusion of law. The law does not raise a presumption of a merger, under the facts alleged, but, on the contrary, raises a presumption of no merger. So far as the allegations of Cohen’s pleading are concerned, the bonds owned by Brainin were not canceled or discharged, and there is no fact alleged by Cohen which could be pointed to as evidence of any intention to merge the bonds and the title. From the facts alleged, the reverse must be presumed, because the manner in which the bonds and the title were held separately, and the manner in which the title was procured by a foreclosure proceeding, negative any finding of intention on the part of Brainin to merge the bonds with the title. Cohen further contends that the Brainin bonds were subordinated to the other outstanding bonds secured by the first mortgage. This contention is based on the claim that Brainin or Gillmer became liable for the first mortgage indebtedness. The acquirement of the equity of redemption by a third person who was not liable for the mortgage does not pender the purchaser liable for the mortgage debt unless there is an express assumption of such debt by the purchaser. And when a title holder who is not liable for the mortgage debt effects a redemption, the redemption does not revive the balance due on the mortgage debt. (French v. Toman, 375 Ill. 389.) In passing on this point, the court in that case said (pp. 394, 395):

“Inasmuch as the sale extinguished the lien, and the redemption voided the sale and the certificate, the decisive question is whether the redemption revived the lien. The record does not show how appellee acquired title, but since it shows she is the sole owner, and acquired title after, the taxes became a lien, her position is that of a grantee from the one who owned the property when the taxes were assessed. A junior encumbrancer, who redeems from a foreclosure sale, takes free from any lien for the unpaid portion of the debt not realized by the sale. (Seligman v. Laubheimer, supra [58 Ill. 124]; Ogle v. Koerner, supra [140 Ill. 170].) The rights and obligations of a grantee and a junior encumbrancer who redeem are the same. (Seligman v. Laubheimer, supra.) The reason for this is that each redeems for his own benefit and not because of any relation with the party primarily liable for the debt. There is no logical ground for distinguishing between them. It follows, that if redemption by a junior mortgagee does not revive the lien of a prior encumbrance, a redemption by a grantee of the lien debtor will not do so. In Ogle v. Koerner, supra, it is said: ‘When the redemption is made by a party primarily liable on the mortgage debt, it may be that the same property may be resorted to again for the purpose of subjecting it to the payment of an unpaid balance due on the mortgage, but that is not because of any right to enforce the mortgage lien against the same property a second time, but because of the rule of law which subjects all the property of a debtor to the payment of his debts until they are satisfied in full. But where the redemption is made by a party not liable upon the mortgage debt, the mortgage lien having been exhausted, the property cannot be subjected a second time to the satisfaction of' the same lien. The party redeeming does so for his own benefit, and the holders of the senior mortgage having, by the sale, become entire strangers to the property, are in no position to derive any advantage from the redemption. ’ This is in accord with our holding as to deficiency decrees in Strause v. Dutch, supra [250 Ill. 326].
“It is of. no consequence that because the redemption voided the sale, appellee still has the same title as before the foreclosure. She is not a person primarily liable for the debt. Her position is that of a grantee from the former owner. She redeemed in an independent position from that of the former owner and for her own benefit, and her title is free from the lien of the taxes.”

When Gillmer or Brainin foreclosed upon the second mortgage, this foreclosure wiped out the second mortgage debt but it did not wipe out the $200,000 first mortgage bonds held by Brainin, because the first mortgage bonds were in no wise involved in the second mortgage foreclosure proceeding. If a party holds a portion of a first mortgage indebtedness and also owns the second mortgage indebtedness, a foreclosure of the second mortgage lien does not in any way affect his holding of a portion of the first mortgage indebtedness. Nor are the covenants of the mortgagor in the second mortgage with reference to the payment of the first mortgage indebtedness, covenants of the mortgagee. The mortgagee under the second mortgage, by foreclosing certainly did not become obligated for the covenants of the mortgagor.

For the reasons hereinabove given, the order of the circuit court of Cook county striking the answer and counterclaim of Harry Cohen and dismissing the same for want of equity, is affirmed.

Affirmed.

Burke, P. J., and Kiley, J., concur.


text:
    Alfred Krueger, Appellant, v. Guy A. Richardson and Walter J. Cummings, Receivers of Chicago Railways Company et al., Appellees.
    Gen. No. 42,831.

      Heard in the third division of this court for the first district at the October term, 1943.
    Opinion filed May 18, 1945.
    Released for publication June 8, 1945.
    Irving G. Zazove and Louis B. Goldberg, both of Chicago, for appellant; Irving G. Zazove, of Chicago, of counsel.
    Frank L. Kriete, Erwin H. Wright and Arthur J. Donovan, all of Chicago, for appellees; William J. Flaherty, of Chicago, of counsel.
   Mr. Justice Lupe

delivered the opinion of the court.

This is a suit for damages for personal injuries received by plaintiff while a passenger on defendants’ street car. At the close of plaintiff’s evidence the court directed a verdict finding defendants not guilty. Judgment was entered thereon. Plaintiff brings this appeal. In a prior appeal in this case the judgment was reversed and the cause remanded because of error in denying plaintiff a change of venue. (314 Ill. App. 492.) Plaintiff alleges in his amended complaint that on July 8, 1939, the defendants were engaged in business as common carrier and as such constructed, managed, operated and controlled a street car along Halsted street at or near 26th street in Chicago, Illinois; that the street car was equipped with divers electric boxes, fuses and wiring for operating and propelling the same; that the interior of the street car contained seats and benches for the use of passengers; that the defendants owed the duty to all passengers to keep, equip, maintain and control said street car and equipment so that the same would not be a source of danger to passengers nor subject them to electric shocks or fires; that they owed passengers the duty to exercise the highest degree of care consistent with the practical operation of said business and mode of conveyance; that plaintiff was a passenger on defendants’ street car; that the defendants knew or should have known that other vehicles might run into, strike, or collide with the same, and it was the duty of the defendants so to place the fuse box and electric equipment, and so to equip electrically the interior and seats, that any collision with another object or vehicle would not unavoidably strike the fuse box and other electrical equipment, mechanism, or wiring and cause an explosion in the interior of said car.

The specific and general acts of negligence alleged are that the defendants disregarded their duty by negligently permitting the fuse box to be so attached to the car as to expose it to unnecessary and' unavoidable danger if another vehicle or object came in contact with it, and that defendant negligently made connection from the main electrical power through the interior of the car and seats and that the same became a source of danger to the passengers who were seated on said seats, including the plaintiff, and that the defendants negligently ran and operated connections and wiring through the interior and seats, and that the seats became unavoidably charged with a high voltage electricity which subjected passengers sitting thereon, including the plaintiff, to unnecessary and unavoidable danger of receiving an electric shock; and that defendants failed in their duty properly to run such wires, in that they ran them in close proximity to the seats so that said wires would become unavoidably charged with electricity and set aflame if any object came in contact wdth the fuse box; that the defendants negligently failed to insulate and protect the wires so that they would not cause an explosion in the interior of the car; and that defendants failed and neglected to furnish plaintiff and other passengers a safe place to sit in said car. That while plaintiff was such a passenger and sitting on one of the seats in the car under defendants’ sole control, the seat became suddenly electrically charged and caught fire, the exact cause thereof being to the plaintiff unknown; that an explosion in the interior of the car caused the seat to become electrically charged and set on fire, the cause of which also was unknown to the plaintiff. That one Frank Biondo operated his truck too close to said street car in such a way as to come in contact with the street car and that as a direct and proximate result of defendants’ acts of negligence, while plaintiff was in the exercise of due care, there was a sudden explosion in the interior of the street car and the seats and divers parts of the car became electrically charged and a sudden flame appeared in the street car which dangerously and permanently injured plaintiff. Plaintiff sought damages in the sum of $25,000.

The second count of the amended complaint averred that plaintiff was a passenger for hire on one of defendants’ street cars; that all the machinery, electrical devices, wiring, controller and fuse box used in operating the street car were in the exclusive control of the defendants; that plaintiff occupied a seat in said street car and was in the exercise of due care; and that while plaintiff was so seated there was an explosion and flames from an unknown cause, which gave plaintiff an electric shock which seriously and permanently injured plaintiff, etc.

Defendants filed their answer denying the material allegations of the amended complaint and each count thereof.

The defendant Frank Biondo was dismissed out of the case on motion of plaintiff.

The plaintiff contends that the second count of the amended complaint alleges general negligence and that the evidence presented made a clear case for the application of the res ipsa loquitur maxim; that the legal presumption of negligence of the defendant arose from the undisputed evidence in behalf of plaintiff; that as defendant offered no proof to overcome that presumption the court erred in directing a verdict for defendants.

The question presented on this appeal is whether or not the trial court committed error in directing a verdict for defendant at the close of plaintiff’s evidence.

In an action at law tried by a jury the law is well settled that on a motion to direct a verdict the power of the trial court is limited strictly to determining whether there is or is not evidence legally tending to prove the facts alleged, and if the evidence for plaintiff tends to establish a cause of action, a trial court has not the right to direct a verdict for defendant. (Myers v. Northwestern Elevated R. Co., 318 Ill. 24.)

A motion to direct at the close of plaintiff’s evidence is in the nature of a demurrer to the evidence, and the testimony so demurred to, together with all reasonable inferences arising therefrom, must be taken most strongly in favor of the plaintiff. (Capelle v. Chicago & N. W. Ry. Co., 280 Ill. App. 471; McCune v. Reynolds, 288 Ill. 188.)

It is equally well settled that the action of a trial court in directing a verdict at the close of plaintiff’s proof is presumptively correct, and the burden is on the plaintiff to overcome that presumption, and it is for the plaintiff to point out evidence from which the jury could reasonably have found in his favor under one of the counts of his declaration. (Kelly v. Fox, 318 Ill. App. 481, 488.)

Plaintiff argues that since his evidence and that of his witnesses must be taken as true against the motion for a directed verdict, he made out a prima facie case, and that the court erred in directing the verdict. It therefore becomes necessary that we examine the testimony which applies to plaintiff’s case.

It appears from the evidence that plaintiff, in the early morning of July 2,. 1939, was riding in defendant’s southbound Halsted street car in Chicago, Illinois, as a fare passenger. As the street car approached 26th street, just before or as it stopped for the intersection, an automobile scraped or bumped into the side of the street car, and -immediately thereafter an explosion occurred in the controller at the rear of the car, which sounded like a bolt of lightning, and flames enveloped the back end of the car. Bolts of electricity began shooting from the rear to the front of the car and back to the rear. The front-end controller also exploded and began to blaze. Bolts of electricity shot from the ceiling around the lamps to the floor and went along the seats and walls of the car. Passengers became panic stricken, some falling to the floor, a woman jumped ont of the window and another woman and two men, including the plaintiff, were electrically shocked. Plaintiff received an electric shock to his leg, back, and side while he was seated by a window about the middle of the car. Plaintiff testified that he heard an explosion and saw a flash of light that appeared to be in front of his face, which blinded him, and that he was rendered unconscious; that his hat, tie and shirt, and the seat of his trousers were left with brown marks, holes, and burns; that the street car was burning and the fire had to be extinguished by the fire department. He then testified as to his injuries and the extent thereof, which we do not deem necessary to consider for a decision on this appeal.

Another witness called on behalf of plaintiff was Charles Cebeatis, who testified that he was one of the passengers in the street car at the time and was seated on the east side of the car on one of the long seats at the rear when ah automobile hit the car, and that he saw the accident in question. He said the accident occurred at about 4 o’clock in the morning, at which time the street car was half filled with passengers; that the first time he observed anything unusual on the street car was when he got to the place of the occurrence; that at the time of the occurrence the car was in motion and was about to either go or to start and that the automobile hit the street car and there was a big burst of fire on the rear end of the street car on the platform and that it made a lot of noise; that at the time this occurred the people in the street car started running toward the front of the car; that the entire platform was all aflame, and that those people, including the conductor, who were on the platform ran off, and that the flames were shooting all around; that as the people were running toward the front end of the street car a fire broke out there and the people then ran back in the street car and that all of a sudden there was a strong current breaking in the street car from one end of the car to the back and fire was going up and down; that people were falling down, and that he fell on the floor of the car; that all of a sudden the street car went dark; that it took about a minute from the time he saw the first explosion on the rear platform until he saw the explosion on the front; he was unable to testify how long after the explosion he saw the current in the street car; the current, he testified, appeared about five feet from the floor toward the front and hack; that it was like a terrific flame and it was all over the car.

He further testified that the scraping of the car was on the left side of the street car; that it was a light scraping; that after he got out of the car he noticed the street car was in flame, and that the back end of the car was on fire and that the fire department came and extinguished it.

On cross-examination, he testified that the seats in the car were of straw cane type; that the bottom of the seats as well as the back were made of the same material, and that the floor of the car was constructed of wood; that the ceiling, it appeared, was of the same construction; that he imagined there was some wood and iron both on the side of the car; that the only iron inside of the car would be the seat foundations and the handles on the seat, and that the lighting of the car was from overhead lights in the ceiling.

He further testified that, at the time of the scraping, the street car was not moving very fast, it was almost at a standstill, and that the car was at its regular stopping place at 26th street. He further said that he was unable to say whether or not the sound appeared as though it was metal scraping against metal, that it was a scraping sound, a noise of some kind; that he saw the automobile. In describing the current, the witness testified the sparks were coming from both ends of the car, that it touched the sides thereof, and that the sparks were shooting like roman candles through the entire street car.

Mrs. Ruth Rubin was called by the plaintiff and testified that she was a passenger in the street car at the time of the occurrence in question; that she heard a crash, a bump, on the side of the car, and saw then one end of the car burst into flames; that she was directed by the conductor to get out of the car; that she was knocked up against the seat and that her back was hurt; that some person that was sitting alongside of her jumped out of the window; as she was moving toward the front end of the car it burst into flames; that the first flame that she noticed was like a bolt of lightning; that both ends of the car were in flames; that she became unconscious, and when she came to she was lying in the street.

On cross-examination she testified that she was seated in one of the seats that accommodate two persons, and that she was sitting on the side nearer to the aisle; that there was nothing unusual about the street car; that it was a regular street car, nothing unusual about it, and that the seats were made of cane; that the street car stopped after it was hit; it seemed to be in the middle of the block; that the street car was hit hard; that the bump was on the left side toward the rear; with that it started to burst into flames at the back and as she went toward-the front the front platform burst into flames; both ends of the car were on fire, and that she was trapped in the middle of the car; that there may have been flames shooting from the front end of the street car, shooting all the way to the back, but that she was so busy trying to get out she could not say; that she could not remember if the lights went out in the car; that she did not know when the flames ended. She further testified that she did not receive an electric shock.

Plaintiff’s evidence showed that he was a passenger in one of the defendant’s southbound Halsted street cars and that at the time of the injury he was in the exercise of due care, when an automobile either scraped or bumped into the left rear side of the street car, dislodging a fuse box of the street car’ at about the point on the street car which received the force of the impact; that immediately thereafter there occurred an explosion in the rear end of the car which, as the witnesses described, sounded like a bolt of lightning and enveloped the back end of the car; that bolts of electricity began shooting from the rear to the front of the car and back again to the rear, and that about that time the front-end controller exploded and began to burn, and that plaintiff, while sitting on one of the seats in the car, received electric shocks from which he suffered burns and other injuries.

In order to ascertain liability on the part of defendant we must determine whether or not the defendant was guilty of negligence. Defendant owed to plaintiff, as one of its passengers, the highest degree of care consistent with the practical operation of its business. (West Chicago St. R. Co. v. Tuerk, 193 Ill. 385.) The carrier should do all that human care, vigilance and foresight can reasonably do, consistently with the mode of conveyance and the practical operation of the road. (Pittsburgh, C. & St. L. R. Co. v. Thompson, 56 Ill. 138; Chicago, P. & St. L. R. Co. v. Lewis, 145 Ill. 67.)

While it is the duty of a street car company toward its passengers to exercise the highest degree of care consistent with the mode of conveyance adopted and the practical operation of the business, yet it is also the rule that the company is not an absolute insurer of the safety of its passengers against possible danger from a collision. (Grubczak v. Chicago Rys. Co., 242 Ill. App. 384, 488; Coulter v. Illinois Cent. R. Co., 264 Ill. 414, 420; Holler v. Chicago City R. Co., 209 Ill. App. 140.)

The rule requiring carriers of passengers to exercise the highest degree of care consistent with the mode of conveyance adopted and the practical operation of the business, infers the duty to exercise the highest degree of care in furnishing cars which are safe and "which are provided with proper appliances. (6 Cyc. of L. & P., 621; 10 C. J. 958.)

Plaintiff argues that the proof is conclusive of the fact that the injury was caused by some defects in the mechanical equipment of the car, as the evidence shows that the explosion occurred in the controller at the end of the car, and, as the equipment was the proximate cause of the injury and was wholly and exclusively under the control of defendant, only one deducible inference is reasonable, that the equipment on the car was either negligently installed or was negligently maintained and operated. He further contends that, because of such conclusive inference, this is a res ipsa loquitur case.

The doctrine of res ipsa loqidtur may be stated thus: When a thing which has caused an injury is shown to be under the management of the party charged with negligence and the accident is such as in the ordinary course of things will not happen if those who have such management use proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from the want of proper care. (Chicago Union Traction Co. v. Giese, 229 Ill. 260; Feldman v. Chicago Rys. Co., 289 Ill. 25, 34.)

The burden placed upon the carrier by law of explaining away presumptive negligence in the injury to a passenger exercising ordinary care while being transported, is well set forth in the case of Arado v. Epstein, 323 Ill. App. 194, at page 199, wherein the court cited with approval the statement by Mr. Justice Goodwin, in Bolger v. City of Chicago, 198 Ill. App. 123, 125 (cert. den. id. xii):

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

Other Dlinois cases in which that principle has been applied are Harper v. Owen H. Fay Livery Co., 177 Ill. App. 138, 140 (affirmed 264 Ill. 459); Fugett v. Murray, 311 Ill. App. 323, 327; Belding v. Belding, 358 Ill. 216, 220; Cope v. Air Associates, Inc., 283 Ill. App. 40, 43, 44 (app. den. id. xiv); Swanson v. S. S. Kresge Co., 302 Ill. App. 455, 466.

There can be no question that plaintiff sustained his injuries by reason of electric shock while a passenger in defendant’s street car and that the agencies causing said shock were under defendant’s control and management.

A jury, lacking the explanation required of defendant by law, might have concluded from the evidence and the reasonable inferences it might draw therefrom, that had that care, foresight and vigilance been used by the defendant which would have anticipated that an automobile might either scrape the side of a street car or run into the same at or near where the fuse box was lodged, and that the same might or could have disarranged or dislodged the fuse box, which .might cause the electrical disturbances! and bring about injury to plaintiff, and had the defendant taken precautions which would have prevented the liberation of high voltage electricity and its pervading the seats and interior of defendant’s street car, the plaintiff would not have received his injuries. The jury might also have concluded, in absence of expíanation, that the escape of the electric current may have been brought about by reason of the location, construction, installation, insulation, inspection or maintenance of the wiring, or other electrical appliances or equipment on the street car, or by defendant’s failure properly to maintain the same.

The law requires of common carriers the doing of all that human care, vigilance, and foresight can reasonably do, under the circumstances and in view of the character of the mode of conveyance adopted, reasonably to guard against accidents, and against consequential injury, and if' they neglect' so to do they are to be held strictly responsible for all consequences which flow from such neglect.

The collision between the automobile, and the street car was not the proximate cause of the injury to plaintiff. If may have been a concurrent cause or one of many causes that brought about the ultimate injury to plaintiff. The law is well settled that if there were concurrent causes that brought about the injury to plaintiff, defendant owing to plaintiff the highest degree of care consistent with the practical operation of its road, would not be excused from liability. The evidence shows that the street car was electrically charged; that the floor and the seat upon which plaintiff was sitting became charged with electricity and burned holes in the seat of his trousers. This evidence raises a presumption of negligence under the doctrine of res ipsa loquitur. Common carriers such as street railways are aware that collisions occur between automobiles and street cars, and that street cars come in contact with other objects.

While the carrier is not an insurer for the absolute safety of the passenger, it does, in legal contemplation, undertake to exercise the highest degree of care to secure the safety of the passenger. The care required of the carrier applies alike to the safe and proper construction of its cars, its equipment, and the road, and the employment of skilful and prudent operators and the faithful performance by them of their respective duties. (Chicago & A. R. Co. v. Byrum, 153 Ill. 131; Chicago, B. & Q. R. Co. v. Mehlsack, 131 Ill. 61; Chicago & A. R. Co. v. Pillsbury, 123 Ill. 9; Galena & C. U. R. Co. v. Fay, 16 Ill. 558.)

As to the machinery and cars furnished for the carriage of passengers, the passengers must rely solely on the carrier, and can do nothing to insure their personal safety. For that reason, the carrier, in this respect, is obligated to the highest reasonable and practical skill and diligence. The safety of passengers requires a strict and rigid observance of this rule- against all carriers. The carrier must omit no care to discover and prevent dangers to passengers that is reasonable and practical. Public security demands such duty of the carrier at all times and under all circumstances. (Chicago & A. R. Co. v. Pillsbury, 123 Ill. 9, 23.)

Defendant contends in view of the fact there was no evidence that there was anything wrong with the location, construction, installation, insulation, inspection or maintenance of the fuse box, wiring, or electrical equipment on the street car or that it was not standard equipment such as is in general use in street cars in Chicago and elsewhere, that the only reasonable conclusion that could be arrived at was that the electrical disturbance which resulted in injury to plaintiff was brought about by an automobile coming in contact with the street car, and it argues that the doctrine of res ipsa loquitur does not apply where an accident is caused in whole or in part by an instrumentality over which the party sought to be charged has no control. With this contention we cannot agree.

All of the cases cited by defendant are distinguishable from the instant case. If plaintiff had been struck by the automobile that ran against the car, or, if the impact of the auto with the street car had caused injury to the plaintiff by a severe jar or jolt, or by throwing him off the car or on to the floor, the authorities relied on by defendant would be applicable. In the instant case the injury was caused by an appliance or instrumentality exclusively under the control of defendant, the common carrier, which distinguishes the instant case from those relied on by defendant.

It is next contended that when specific negligence is charged, its proof is not aided by res ipsa loquitur, and that it must be affirmatively proved.

It is well settled that the doctrine of res ipsa loquitur applies where general negligence is charged, but it has no application where specific negligence is relied upon. Where one charges specific acts of negligence the law puts upon him the duty of proving it. (Chicago Union Traction Co. v. Giese, 229 Ill. 260; O’Callaghan v. Dellwood Park Co., 242 Ill. 336.) As a part of the allegations of the complaint charges general negligence, the evidence in this case was sufficient to throw upon the defendant the burden of rebutting the negligence alleged. In the case of Arado v. Epstein, 323 Ill. App. 194, the court quoted from North Chicago St. R. Co. v. Cotton, 140 Ill. 486, 495, saying:

“ ‘Even if it be admitted that the presumption is one of negligence generally and not of any specific negligence; we think it sufficient to throw upon the defendant the burden of rebutting the specific negligence alleged. ’ - In other words, the knowledge of the facts being possessed only by the defendant, it must reveal them and show that it is not guilty of the specific negligence charged, or verdict must go against it.”

Nor was it necessary for the plaintiff to prove all the allegations of the complaint.

In Arado v. Epstein, 323 Ill. App. 194, at page 201, the court said:

“It is not necessary in actions ex delicto to prove all the allegations of the declaration. If plaintiff makes out a cause of action by proving the material allegations he is entitled to recover even though there be other averments of the declaration which are not proved.” (Citing cases.)

It therefore follows that plaintiff was not required to prove the specific acts of negligence as alleged but they had a right to rely upon the proof and with the reasonable inferences from the evidence to establish a prima facie case of general negligence. This we feel plaintiff did.

It is argued by defendants that the evidence shows that a force or instrumentality which was not under the control of defendant knocked off the fuse box which controlled the voltage and that it cannot reasonably be said that such evidence shows or tends to show that the accident could not have happened without the negligence on the part of the carrier. They further argue that it is common knowledge that the voltage carried in the primary wires or cables is controlled by a fuse box or a transformer before it enters the electrical appliances where it is to be applied, and when such fuse box or transformer is damaged or disarranged the control of the high voltage is removed and its unrestricted flow will naturally result in an overloading of the appliances and an electrical disturbance of more or less intensity, depending upon the voltage, will be liberated. We cannot agree that such technical facts are matters of common knowledge. These facts and their application to the particular installations in question are especially within the knowledge of defendants herein.

From the evidence in this case we feel that defendants should have been called upon to explain what caused their street can to become electrically charged, causing the injury to plaintiff. The knowledge thereof was possessed by defendants and not by plaintiff, as defendants had control and management of the agencies that caused the injury to plaintiff. The mere fact that an automobile either scraped or came in contact with the side of the car, dislodging or disarranging a fuse box would not of itself excuse defendants from liability without some showing or explanation on their part that the electrical disturbances causing plaintiff’s injuries came about through no neglect or omission of duty on the part of defendants.

Under the doctrine of res ipsa loquitur, the plaintiff having shown that he was a passenger in the exercise of due care, and that he was injured in the car of the defendants by some instrumentality wholly under the control and management of the defendants, a prima facie case of negligence on the part of the defendants was established, and the burden of proof was upon the defendants to show that the accident was without their fault.

For the reasons hereinabove given, the judgment of the superior court of Cook county is reversed and the cause is remanded for further proceedings not inconsistent with the views above expressed.

Reversed and remanded.

Burke, P. J., and Kiley, J., concur.


text:
    Leo Schultz, Appellant, v. Martin O. Johnson et al., Appellees. William O. Jackson, Counterclaimant.
    Gen. No. 43,049.

      Heard in the third division of this court for the first district at the April term, 1944.
    Opinion filed May 18, 1945.
    Released for publication June 8, 1945.
    John O. Wagner, of Chicago, for appellant.
    Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellee; Emil F. Meier, of Chicago, of counsel.
   Mr. Justice Lupe

delivered the opinion of the court.

Plaintiff’s complaint sought to partition certain improved real estate and to remove the lien of a trust deed against the same.

The defendants, Martin 0. Johnson and Jennie M. Johnson, his wife, on April 2; 1936, were indebted to the .counterclaimant William 0. Jackson, in the sum of $2,750, and gave their note for that amount. This was secured by the trust deed sought to be removed as a cloud on the property involved herein. At the time of the giving of the mortgage, Martin 0. J ohnson and his wife were joint owners of the real estate. On November 23, 1936, the Johnsons conveyed the property to the counterclaimant and the deed of conveyance was duly recorded.

Thereafter, on February 10,1937, a petition in bankruptcy was filed against defendant Martin O. J ohnson, in the United States district court for the northern district of Illinois and he was adjudged a bankrupt. Thereafter, on January 8, 1938, Arthur C. Wick was appointed trustee of the bankrupt’s estate and effects.

On petition filed on behalf of the creditors, the district court found that the conveyance by Johnson and his wife to counterclaimant was made within four months preceding the date of the filing of the petition in bankruptcy, and that the same was made without consideration. On May 12,1938, Jackson and his wife deeded the property back to Johnson and his wife, the deed being made subject to the lien of the trust deed involved herein. On May 21, 1938, Johnson deeded to Arthur C. Wick, trustee in bankruptcy, all his interest in the real estate in question. The deed to Wick as trustee was made subject to the trust deed. Thereafter, an order was entered in the district court directing the sale of the interest of Johnson in said property by the trustee in bankruptcy. Plaintiff purchased the same for the sum of $300 from the trustee in bankruptcy, who executed and delivered to plaintiff on September 22, 1938, his trustee’s deed, wherein he quitclaimed his right, title and interest in the property in question, subject “to any and all mortgages, homestead, encumbrances, judgments, liens, taxes, and other charges that may constitute a lien upon said described real estate.” Plaintiff thus became the owner of an undivided one half interest in said real estate.

Based on the title conveyed to him by this deed, plaintiff filed his partition proceeding and sought to remove the trust deed held by Jackson as a lien upon the réal estate. Jackson filed his counterclaim to foreclose the trust deed. The cause was referred to a master in chancery, who found that the trust deed was a valid lien upon the premises, securing the principal sum of $2,750 and interest thereon. This finding was approved by the chancellor, who thereupon entered a decree for the foreclosure and sale of the premises involved for the amount of the indebtedness due to Jackson. Plaintiff appealed from this decree of foreclosure.

Plaintiff contends that because Jackson was a party to the fraudulent conveyance from Johnson and his wife, by which title was vested in Jackson, that Jackson’s participation in Johnson’s purpose of defrauding his creditors can be referred to the trust deed held by Jackson, so that the trust deed can be held fraudulent. It is the law that a conveyance made with intent to hinder and delay creditors, is void as against such creditors and, where the grantee participates or has knowledge of the fraudulent intention of the grantor, the conveyance may be set aside by the grantor’s creditors, even though the grantee has paid a valuable consideration for the transfer. (Garlick v. Imgruet, 340 Ill. 136; Svalina v. Saravana, 341 Ill. 236; Sherwin-Williams Co. v. Watson Industries, Inc., 361 Ill. 598.) It is plaintiff’s contention that if a person has a valid incumbrance duly registered or recorded, and subsequently the holder of the incumbrance engages in a fraudulent agreement with the holder of the equity, by which the equity is transferred to the holder of the incumbrance, such holder of the incumbrance would thereby forfeit, and could be deprived by equitable proceedings of his prior lien upon the real estate. With this contention we cannot agree.

The conveyance of the equity is the transaction which is tainted with fraud and it is that transaction which can be set aside and held for naught, but the previous transaction by which the loan was made, and the note, and trust deed given to secure that loan, not being tainted with fraud, is valid, and the subsequent fraud cannot relate back to the prior bona fide transaction and taint that transaction with, fraud. The two transactions in this case were separate and had no relation each to the other, and, therefore, the fraud in one cannot be extended to the other. In the case of Pitzele v. Cohn, 217 Ill. 30, a similar question was presented, and in deciding the case the court said (pp. 37-38):

“And if it were conceded that the original arrangement, whereby H. Cohn, through Charles A. Levy, obtained title to said real estate at said receiver’s sale, was fraudulent, as an attempt to hinder and delay the other creditors of A. & N. Pitzele in the collection of their claims, we do not think the note and trust deed now sought to be foreclosed would be so tainted with fraud that in this suit the plaintiffs in error could set up such fraud and thereby defeat the foreclosure of said trust deed. The real estate covered by the trust deed was transferred by Levy to Bose and Hannah Pitzele, and the note and trust deed in question were executed by them and their husbands to H. Cohn to secure the payment of what is conceded to be a valid debt of A. & N. Pitzele to H. Cohn and his firm, unless such indebtedness had otherwise been paid, which we have held it had not. The consideration of said note and trust deed was therefore a valid debt of A. & 1ST. Pitzele to H. Cohn and his firm, and was not, affected ,by the fraud, if any, whereby H. Cohn obtained title, through Levy, to said premises at the receiver’s sale, and the payment of said note and trust deed cannot be defeated by showing that H. Cohn was guilty of fraud in acquiring the title to said real estate, as the wrongdoing which will defeat a recovery on the ground that a litigant does not come into a court of equity with clean hands must be in regard to the matter in litigation, and does not apply to the misconduct of the complainant in other matters not immediately connected with the then pending litigation. In Guilfoil v. Arthur, 158 Ill 600, it was held a new contract founded on a new consideration, although in relation to property respecting which there had been unlawful transactions between the parties, is not itself unlawful. And in City of Chicago v. Union Stock Yards and Transit Co., 164 Ill. 224, it was said (p. 238) the maxim that a party must come into a court of equity with clean hands only applies to the particular transaction under consideration, for a court will not go outside of the case for the purpose of examining the conduct of the complainant in other matters or questioning his general character for fair dealing. The wrong must have been done to the defendant himself and must have been in regard to the matter in litigation.’ ”

Plaintiff further contends that by the conveyance of the property from Johnson and his wife to Jackson, Jackson then being the holder of the trust deed, a merger was effected, so that the lien of the trust deed was merged in the title, and when Jackson subsequently conveyed the premises back to Johnson and his wife the lien of the trust deed had been extinguished.

In equity, merger is a matter of intention. (Richardson v. Hockenhull, 85 Ill. 124; Jones v. Taylor, 261 Ill. App. 403; Edgar County Building & Loan Ass’n v. Calvin, 268 Ill. App. 125.) On the question of whether Jackson intended to merge the lien of the trust deed in the fee, we find ample evidence that Jackson did not intend so to do. The record discloses that Jackson did not cancel the notes; the trust deed was never released; Johnson did not pay any rent to Jackson, and did not surrender possession of the premises to Jackson; that the deed of conveyance from Jackson to Johnson contained a provision that the conveyance was subject to the continuing lien of the trust deed; and Jackson, after the conveyance to him, demanded payment from Johnson of the moneys due on the note secured by the trust deed. We further find that the deed from Johnson to Wick, the trustee in bankruptcy, as well as the deed from Wick, as such trustee, to the plaintiff, were subject to the lien of the trust deed. There are other circumstances which tend to show that there was no intention on the part of Jackson that a merger should be effected, and there is no evidence in the record from which it can fairly be inferred that Jackson ever had any intention that such a merger should become effective.

We are satisfied that the finding of the master, confirmed by the chancellor, that there was no merger, is sustained by the law and the evidence.

We are therefore of the opinion, for the reasons hereinabove given, that the decree of the circuit court of Cook county, sustaining the lien of the trust deed, and directing that the same be foreclosed, was correct and the decree is affirmed.

Decree affirmed.

Burke, P. J., and Kiley, J., concur.