author: Mr. Justice Sears

text:
    Chicago & G. T. Ry. Co. v. Frank Spurney.
    1. Variance — Pleadings and Proofs. — In an action for personal injuries, where the negligence complained of in the declaration was that the defendant failed to provide any means or appliances of warning to the plaintiff of the starting of the machinery in motion, etc., and the evidence introduced by him tended to show that there was, prior to the accident, a means provided by the defendant of giving warning of the starting of the machinery in motion, in the form of a custom existing, on the part of the foreman in charge of the elevator, to give such warning, and that such warning was not in this instance given, held, that there was no such discrepancy between the declaration and the evidence as constituted a material variance.
    2. Damages — Where $15,000 is Not Excessive. — An employe of a railroad company was so injured that it became necessary to amputate his leg, and there were three amputations performed, by the third of which the leg was cut off above the knee. He was in the county hospital more than six months. The leg was terribly lacerated, involving great suffering for a long period of time, during which the various surgical operations were performed. Before the injury he was earning $1.75 per day. A judgment for $15,000 was held not to be grossly excessive.
    Trespass on the Case, for personal injuries. Error to the Superior Court of Cook County; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1900.
    Affirmed.
    Opinion filed October 24, 1901.
    Statement. — This record presents a judgment recovered by defendant in error in an action against plaintiff in error for personal injuries. Defendant in error, Spurney, was an employe of plaintiff in error, and his duties were shoveling grain out of cars by use of a scoop, which was operated by power. The scoop was attached to a long rope which operated over a drum on a shaft some distance above the floor of the elevator wherein defendant in error worked.
    There were in this elevator what is termed in the evidence three' “ legs,” at which cars were unloaded by means of three scoops, which worked by the revolving of the shaft and the winding of the rope on the drum, thus drawing the scoop with the grain from within the car to a hoisting machine, by which it was elevated to the upper part of the building. It is this hoisting apparatus that is termed in the evidence a “ leg;” and defendant in error worked at the south “ leg.” A track ran through the building, on which cars were brought up to these “ legs ” to be unloaded, and when a car had been placed on the track by the “leg” to be unloaded, it was then the duty of defendant in error to pull his scoop into the car and unload the grain into the hoisting apparatus.
    The engine that ran the machinery in the building was in the engine room, just north of and outside of the elevator building. When the machinery was started in motion it would set the shaft to which the grain scoop with which defendant in error worked was attached, revolving all the way through the building, and if the rope by which the scoop was worked was at that time unwound, the moment the shaft would begin to revolve the rope would begin to wind up on the drum, and this defendant in error understood.
    The accident in question occurred about seven o’clock in the morning, when the engines started up and the machinery was set in motion and the shaft in revolution. The rope at this south “ leg,” by which the scoop was worked, was unwound from the drum (though attached to it), and lay loose upon the floor. It did not hang directly down from the drum on the shaft to the floor, but passed through a pulley which stood by the side of the elevator “ leg ” between three and four feet above the floor and between three and four feet back from the body of the car to be unloaded, and lay on the floor by the pulley.
    Defendant in error states in his testimony that he got to the elevator a little before seven o’clock that morning, and that he first got ready for his work; that he found this rope unwound, and was just starting to wind it up on the drum by pulling down a counterweight, which hung down from the drum about half way from the drum to the floor, over a foot or two to the west of the pulley and west of where the rope lay, by pulling on which the drum could be made to turn, though the machinery should not be in motion. In so doing he stepped on the rope, and at that moment the machinery started up, the shaft commenced to revolve and the rope to wind up on the drum, catching his leg and pulling him toward the pulley, where it was caught and held until the rope broke, so lacerating the flesh as to require amputation.
    Seven o’clock was the hour for starting ■ the machinery, and this accident happened as it started at the usual hour. There was no claim that the machinery was started at any other than the regular time.
    There was no bell or other appliance used in the business of plaintiff in error to give signals of the starting up of this machinery, and there had not been any such in use during the time that defendant in error was employed.
    Defendant in error introduced evidence tending to show that during the time of his employment a foreman of the plaintiff in error had been accustomed to give notice to the workmen, by calling out that the engine was about to start up, and that on the morning of the injury in question no such notice was given. This evidence was admitted over objection, and exception thereto was preserved by plaintiff in error.
    The declaration consisted of two counts. On the trial the attorney for defendant in error announced that he did not seek a recovery under the second count.
    The first count' charged that plaintiff in error, defendant below, negligently failed to provide any means of warning for the plaintiff when said machinery was about to be put in motion, more particularly when said machinery was about to be put in motion at a time of day when it was not usual or customary to run said machinery; that thereby and therefrom the plaintiff, with all due care and caution for his own safety in that respect, and while, in the course of his said employment, then and there adjusting and placing in a proper position for use the rope connecting said grain shovel with said machinery, was, by reason of the negligent, careless and improper conduct of the said defendant in setting said machinery in motion (which act on the part of said defendant the said plaintiff had no reason to expect or anticipate), causing said rope to be drawn rapidly, etc. caught, etc., and injured.
    Plaintiff in error introduced no evidence upon the trial, and at the conclusion of the evidence offered by the defendant in error, plaintiff below, it moved for an order striking out the evidence introduced by the plaintiff there, on the ground that such evidence was at variance with the declaration, in that the negligence which was complained of in said declaration is that the defendant failed to provide any means or appliances of warning to the plaintiff of the starting of the machinery in motion, etc., while the evidence introduced by the plaintiff tends to show merely that there was prior to the said accident a means provided by the defendant of giving warning of the starting of the machinery in motion in the form of a custom existing to give such warning on the part of the foreman in charge of said elevator, and that the defendant was guilty of negligence at the time in question in failing to comply with such alleged custom.
    A further motion was .interposed to instruct the jury to return a verdict for the defendant there, on the ground that the evidence failed to show that said defendant was guilty of the negligence charged. These motions were overruled by the court and the issues were submitted to the jury. A verdict for defendant in error was returned, by which his damages were assessed at $25,000. A motion for a new trial by plaintiff in error was overruled by the court. A remittitur of $10,000 was entered and judgment was rendered upon the verdict thus reduced for the amount of $15,000.
    S. A. Lynde, attorney for plaintiff in error.
    Theodore G. Case, attorney for defendant in error.
   Mr. Justice Sears

delivered the opinion of the court.

The grounds upon which a reversal of this judgment is sought are, first, a variance between the evidence and the declaration, and, second, that the verdict is excessive.

It is argued that the evidence as to the alleged custom of the foreman to call out and give notice of starting the machinery in motion was at variance with the declaration, and that the court erred in overruling the objections to its introduction and in refusing to strike it out and to instruct the jury to find for the defendant below.

We are of opinion that this contention can not be sustained. Whether the gist of the negligence charged be the failure to provide proper appliances for signals when the machinery was about to be set in motion, or the negligent starting of the machinery without any warning to the defendant in error that it was about to be started, in either event, we regard the evidence sufficient to sustain the allegations of the declaration.

It appears from the evidence that there was no such appliance furnished by plaintiff in error for the protection of its employes engaged in work upon the machinery, distant a considerable space from the engine by which it was moved. Moreover, it appears that the defendant in error was injured by the starting up of the machinery without any warning to him that it was about to be started.

It might reasonably be concluded by the jury from the evidence, that the negligence of the plaintiff in error in failing to provide any bell, gong or other appliance, by which the operator of the engine could notify those working upon the distant machinery, which was to be moved by the engine, that the engine was about to start and set the machinery in motion, was an efficient and proximate cause of the injury. It is certain that the proof sustains the allegation that “ by reason of the negligent, careless and improper conduct of the said defendant in setting said machinery in motion,” the defendant in error was injured.

In this kind of action it is enough to sustain by the proof sufficient of the allegations of the declaration to warrant a recovery. 1 Chitty on Pl. (9th Am. Ed.), 386-7; L. E. & W. R. R. Co. v. Christianson, 39 Ill. App. 495.

If the first count of the declaration, upon which the recovery was had, is double, in that it in effect charges negligence in failing to furnish any appliance to warn defendant in error, and in that it also charges negligence in starting up the machinery without any warning to defendant in error by appliance or otherwise, the fault is one which could not be reached by objection to evidence upon either charge at the trial.

Plaintiff in error objected to the evidence when proffered, and also moved to have it stricken out; therefore it can not be said that the verdict cured a variance, if there was one. But we are of opinion that there is no such discrepancy between the essential allegations of the declaration and the evidence, as constitutes a variance.

Secondly, it is urged that the verdict was for a grossly excessive amount, and that the remittitur did not cure this vice and make it good to support a judgment.

In C. & E. I. R. R. v. Cleminger, 77 Ill. App. 186, we held that where a verdict was for an excessive amount, and it appeared that the excess was so gross as to indicate passion or prejudice on the part of the jury as a cause, a remittitur ought not to be viewed as curing the verdict. But we also held, under the facts in that case, that where no errors appeared in the proceeding at the trial, and where the evidence supported the verdict for the larger part of the amount awarded, we could not hold that the amount of the verdict itself indicated any improper motive on the part of the jury.

In this cause no complaint is made of any error in procedure, except as above indicated upon the ground of a variance. The only ground, therefore, upon which it could be held that this verdict is not made good by the remittitur, would be that it is, as reduced, still too large, or that as originally returned it was so grossly excessive as to indicate passion or prejudice. We are of opinion, after consideration of all the evidence, that the verdict here should not be so viewed.

The evidence discloses that defendant in error was so injured that it became necessary to amputate his leg. There were three amputations performed, and by the third the leg was cut off above the knee. Plaintiff in error was in the county hospital for more than six months. His leg was terribly lacerated, involving of necessity great suffering during a long period of time, during which the various surgical operations were performed. Before the injury he was earning §1.75 a day. It required no further evidence to warrant the jury in concluding that his earning capacity was permanently impaired.

Under this evidence the trial court considered a recovery of $15,000 sufficient. The amount thus awarded is large, yet upon the evidence and after the approval of the trial court, we can not hold that it is excessive. And while the award of $25,000, as made by the jury, was evidently regarded by the trial court as excessive, yet we are not prepared to hold that it was so grossly excessive as to warrant the conclusion that the jury were moved by passion or prejudice.

The judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    _ _ William H. Carroll v. Mary Jane Haigh et al.
    Chancery Practice — What Does Not Preclude a Defendant from Objecting to the Acts of a Receiver. — A defendant in a suit of foreclosure, after having suffered his default to be entered and the bill of complaint against Mm to be taken pro confesso, and having enteredno appearance to object to the continuance of the receivership, is not, however, by-reason of such failures, to be precluded from making his claim to the rents and profits which have accrued from the mortgaged premises during the period provided for redemption, nor from urging his objection to the order of the court by which the receiver was permitted to apply such rents and profits to the payment of the ground rents reserved in a lease of the premises.
    2. Same — Complainants in Foreclosure Suits as Purchasers at Sales Under the Decree. — Where one of the complainants in a foreclosure proceeding becomes the purchaser at the master’s sale, “for the use of all the complainants,” he and they stand, as purchasers of the mortgaged premises at such sale, precisely as would any other purchaser, and their status is in no wise changed, nor are their rights as such purchasers enlarged by reason of the fact that they were also complainants in the foreclosure proceedings.

      3. Same — Rights of the Owner of the Equity of Redemption. — The owner of the equity of redemption is entitled to the enjoyment of the mortgaged premises during the period provided for a redemption from the foreclosure sale, and to him belong the rents, issues and profits arising therefrom during such period.
    4: Mortgages — Effect of the Satisfaction or Payment of the Mortgage Debt. — A mortgage and all of its provisions are to be regarded as for but one purpose, viz., securing the payment of the mortgage indebtedness, and when the debt has been fully paid, the mortgage, together with all its terms and provisions, has expended its force and the premises are discharged therefrom, notwithstanding the mortgage contained provisions that during the period of redemption the rents should be paid to the purchaser at the sale.
    5. Same— When the Debt Secured, is Discharged. — The mortgage debt is the principal thing, and the mortgage merely an incident thereto, and when the debt is discharged the provisions of the mortgage lose their force.
    6. Foreclosure — Claims of the Purchaser at the Sale to the Rents and Profits During the Equity of Redemption. — A purchaser at a foreclosure sale has no claim against the rents and profits of the premises until the period of the redemption has expired and he can not have them awarded to him for any purpose whatever as against the right of the owner of the equity of redemption to such rents and profits.
    7. Same — Liabilities of a Purchaser at a Sale Under a Decree of Foreclosure. — A purchaser at a sale under a decree of foreclosure is required to assume the burden of paying the ground rents, taxes and assessments upon the land, and insurance upon the buildings thereon, in order to protect his purchase, and he can not for that purpose avail himself of the rents which the premises are earning during the period of redemption. It may seem a hard rule, but he is presumed to have made his bid with a view to such contingencies.
    Foreclosure. — Error to the Superior Court of Cook County; the Hon. Philip Stein, Judge, presiding. Heard in this court at the March term, 1901.
    Reversed and remanded with directions.
    Opinion filed October 24, 1901.
    Statement. — Elisha 0. Ware, being a lessee of premises demised for the term of ninety-nine years and owner of the buildings upon the demised premises, mortgaged by trust deed his interest in the premises to secure a debt of §15,000, evidenced by his promissory notes.
    Ware conveyed the leasehold estate to plaintiff in-error.. Defendants in error, as owners of the promissory notes, evidencing the mortgage debt, filed their bill of complaint to foreclose the trust deed. Upon the exhibiting of the bill of complaint a receiver was appointed by the court “ to take possession of said premises, collect the rents, pay taxes, ground rent, insurance, water taxes, make necessary repairs, to rent the same,” etc.
    All defendants to the suit were defaulted.
    On October 25,'1898, a decree was entered for the sum of $15,994.54, said amount being the sum found to be due for principal, interest and solicitor’s fees. No finding was made respecting any liability for ground rent. On December 3, 1898, the master’s report of sale was filed, showing the sale of the leasehold interest on November 22, 1898, to complainant, Samuel D. Ward, one of the defendants in error, for the sum of $16,309.50, the same being the full amount, including interest and costs, due to complainants. On December 3, 1898, said report of sale was confirmed, .and, without notice, an order was entered that the receiver be continued in office during the period of redemption. No report was made by the receiver to the court until March 27, 1900, when a report was filed, pursuant to an order entered March 12, 1900. Plaintiff in error filed his exceptions to the receiver’s report, and the same having been argued, were overruled, and said report, showing the collection and expenditure of $8,582, was approved.
    Among the items of expenditure allowed to the receiver were items for commissions for the collection of the rents, insurance, repairs, installments of ground rent paid to the owner of the fee under the terms and provisions of the ninety-nine year lease, specified as ground rent.
    No objection appears ever to have been made by plaintiff in error to the appointment of the receiver or the continuation of the receivership during the period of redemption.
    This writ of error is now prosecuted to review the order of the court allowing the various items of expenditure by the receiver out of the moneys collected by him as rents and profits of the mortgaged premises during the period of redemption.

      John C. Wilson and John H. S. Lee, solicitors for plaintiff in error.
    Barker & Church, solicitors for defendants in error.
   Mr. Justice Sears

delivered the opinion of the court.

No error is assigned by which any question is raised as to the propriety of the original interlocutory appointment of the receiver or of the order by which the receivership was continued during the period of redemption. It seems that plaintiff in error, after having suffered his default to be taken and the bill of complaint to be taken pro confesso as against him, entered no appearance to object to the receivership or its continuance. He is not, however, to be therefore precluded from making claim to the rents and profits which have accrued from the mortgaged premises during the period provided for redemption, nor from urging his objection to the order of the Superior Court by which the receiver was permitted to • apply such rents and profits to the payment of the ground rent reserved in the ninety-nine year lease, and to other matters.

The receiver’s report, which set forth the expenditures of the money collected by the receiver as rent of the mortgaged premises during the period of redemption, showed that all the moneys so collected by him had been expended and that among the items of expenditure were installments of ground rent, paid to the owner of the fee under the provision of the ninety-nine year lease, insurance, repairs and commissions for collections. The court allowed these expenditures by the receiver and overruled the exceptions of plaintiff in error to the receiver’s report, and approved the report.

The order by which the receivership was continued after the mortgage debt had been fully extinguished by the foreclosure sale, is substantially as follows :

The master’s report of sale is approved; and it appearing to the court that the premises in question consist of a leasehold and certain buildings thereon; that the income is not more than sufficient to pay the ground rent and the fixed charges thereon; that unless the same are paid the . lease will be forfeited and the certificate of sale issued to the purchaser by the master will become valueless and of no security for the amount of said decree. And it further appearing to the court that the receiver is now engaged in making certain repairs upon said building, and that the same ought to be completed and paid for out of the income; and it further appearing that said leasehold and buildings were purchased by one of complainants for the use of all complainants. It is ordered that the receiver, Charles S. Read, be continued in office and possession during the period of redemption under said sale.

Several orders were entered by the court during the period of redemption, authorizing the receiver to expend amounts stated in the orders for repairs of the premises.

Upon this state of the record there is but one question which is to be considered and determined by the court, viz., as to the propriety of the order allowing the rents and profits of the mortgaged premises, accruing during the ' period provided for redemption from the foreclosure sale, to be applied to the keeping of the premises in repair and insured, and to the payment of ground rent accruing under the ninety-nine year lease, and to payment of commissions for collecting such rents of the mortgaged premises.

Failure to pay the ground rent due under the terms of the ninety-nine year lease would operate to work a forfeiture of the rights of the lessee in such lease, and as well all rights acquired by his assignee and by the purchaser at the foreclosure sale. The order before noted recites this contingency as" a reason for continuing the receivership, and it recites that in the event of such a forfeiture, “ the certificate of sale issued to the purchaser by the master will become valueless and of no security for the amount of the decree.” But the amount of the decree had already been paid through the foreclosure sale, and the complainants in the suit, as such, had no further right or interest in the mortgaged premises. It is true that one of the complainants bought the premises at the foreclosure sale, and the order recites that he made the purchase “ for the use of all complainants.” Nevertheless, he and they stand as purchasers of the mortgaged premises in the foreclosure sale, precisely as would, any other purchaser, and their status is in no wise changed, nor are their rights as such purchasers enlarged, by reason of the fact that they were also complainants in the foreclosure suit. Stevens v. Hadfield, 178 Ill. 532; Lightcap v. Bradley, 186 Ill. 510.

Their rights as complainants had been fully settled and satisfied by the payment in full of the mortgage debt.

The complainants, as purchasers at the foreclosure sale, having the same rights as would any other purchaser and no greater, Avhat can be said of the propriety of protecting their purchase during the period of redemption by applying the rents of the mortgaged-premises during that period to the payment of insurance, ground rent and repairs ?

It is well settled in this State that the oAvner of the equity of redemption is entitled to the enjoyment of the mortgaged premises during the period provided for a redemption from the foreclosure sale, and to him belong the rents, issues and profits arising from the mortgaged premises and accruing during that period. Davis v. Dale, 150 Ill. 239; Stevens v. Hadfield, 178 Ill. 532; Bogardus v. Moses, 181 Ill. 554; Lightcap v. Bradley, 186 Ill. 510; Burleigh v. Keck, 84 Ill. App. 607.

It is true that by the terms of the trust deed it is provided that during the period of redemption the rents of the mortgaged premises shall be paid to the purchaser at the foreclosure sale. But the mortgage and all the provisions thereof are to be regarded as for but one purpose, viz., the securing of the payment of the mortgage debt; and when that debt has been paid in full, the mortgage, together Avith all its terms and provisions, has expended its force, and the premises conveyed are no longer subject to its provisions, but are discharged therefrom.

The reasoning of all the Illinois decisions upon this matter seems to be that as the mortgage debt is the principal thing, and the mortgage merely an incident thereto, therefore when the debt is discharged the provisions of the mortgage deed lose their force. Lightcap v. Bradley, supra.

It is true that it wras a matter of grave importance to the purchaser of the mortgaged premises, that the ground rent under the ninety-nine year lease should be paid and the leasehold interest protected from a forfeiture for nonpayment of ground rent, just as it was a matter of importance to him that the current taxes and assessments should be paid and a forfeiture or sale from their non-payment be avoided. But the complainant in the foreclosure suit, as owner of the mortgage debt, had no further interest in those matters, for he had been paid in full and had been granted all the relief to which he was entitled by reason of the mortgage and his foreclosure of the same; and the purchaser at the sale had no claim against the rents and profits of the mortgaged premises until the period of redemption had expired. He could not have them awarded to him, whether for the purpose of paying ground rent, or insurance, or taxes, or any other purpose, as against the right of the owner of the equity of redemption to such rents and profits.

It may seem, perhaps, a hard rule for the purchaser, in that he is obliged to pay the ground rent, taxes and assessments upon the land, and for insurance upon the buildings, in order to protect his purchase, and can not for that purpose avail of the rents which the premises are earning during the period of redemption. But, under the well established law, he is obliged to assume such burden if he makes the purchase, and he is presumed to make his bid with a view to precisely such contingencies.

The receiver was allowed by the court five per centum as commissions for the collection of the rents. If the plaintiff in error had interposed any objection to the continuing of the receivership after the foreclosure sale, we should be obliged to hold that this item could not be properly allowed, for there was no occasion for any receivership after such sale.

The fact that plaintiff in error made no objection to the receivership should not, we think, now preclude him. from insisting upon his clear right under the law to the moneys collected by the receiver; but it would seem to be inequitable to permit him to object to the necessary cost of collecting the rents by a receiver whom he has permitted to act as collector of the same.

The item for the taxes of 1898 might properly have been included in the decree of sale, but it was not.

The order of the Superior Court is reversed and the cause is remanded with directions to disallow all expenditures made by the receiver of moneys collected during the period of redemption, and to order the payment of such moneys to the owner of the equity of redemption, less five per centum to be allowed to the receiver for the collection of the same. Béversed and remanded with directions.


author: Mr. Justice Waterman

text:
    City of Chicago v. Waukesha Imperial Spring Brewing Company.
    1. Recovery — Of Money Paid Under an Invalid Ordinance — Duress. —Money paid under a demand by the police and collection officers sent by a city to the plaintiff’s place of business, and threats by them that unless the amount demanded is paid plaintiff would be prosecuted, is a payment under duress.
    2. Duress — Distinction Between Threats by Private Individuals and Government Officers. — There is a manifest distinction between a demand and threats made by a private individual not possessed of any means of enforcing such threats and payment under a demand and threats by government officers clothed with authority to enforce the same by arrest and interruption of the business of the person to whom such threats are made.
    3. Same— When the Alternative is to Submit or Discontinue Business. —When the alternative presented to a party is to submit to a city’s exactions or discontinue his business within the corporate limits, money paid under such circumstances is not money paid voluntarily.
    4. Same — The Buie in This State. — In this State, where ja man carrying on a lawful business in a lawful manner, is obliged, in order to prevent the forcible interruption of the same by governmental authority, to submit to the unlawful demand, whatever he pays under such circumstances is not paid voluntarily and may be recovered back in an appropriate action.
    5. Evidence — Conversations Between Qity Officers, When Admissible. —In an action by a party against a city to recover money unlawfully exacted under threats of arrest, conversations had between the officers of the city, where no one representing the city is present, in so far as such conversations go beyond statements of what had been said or done by the city through its officers, are inadmissible; but it is competent for the plaintiff to show that the subordinate officers of the city told him what had been said to them by the superior officers of the city concerning his arrest.
    Assumpsit, to recover money paid under an invalid ordinance. Appeal from the Superior Court of Cook County; the Hon. Edmund W. Burke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 1, 1901.
    This case was begun in the Circuit Court, for the recovery of certain moneys paid by appellee to appellant, the City of Chicago, during the years 1896, 1897 and 1898, under an ordinance of the city of Chicago theretofore passed on the 30th day of March, 1896, requiring payment of an annual license fee of five hundred dollars from any person, firm or corporation carrying on the business of a brewer or distiller within said city.
    Said ordinance further provided that “the selling or delivering, within the said city, of any product of a brewery or distillery, by or on behalf of the person, firm or corporation conducting or operating said brewery or distillery, shall be held to be carrying on the business of a brewer or distiller, as the case may be, within the meaning of this ordinance, and to be covered by this ordinance.”
    Said ordinance also provides (section 5):
    “Any person, firm or corporation violating any of the provisions of this ordinance shall be subject to a penalty of not less than one hundred dollars ($100) nor more than "two hundred dollars ($200) for each offense, and a separate offense shall be regarded as committed for each day during which such person, firm or corporation shall continue any such violation.”
    Charles M. Walker, Corporation Counsel, William Howard Fitzgerald, Assistant Corporation Counsel, attorneys for appellant.

      William L. Tibbs, attorney for appellee; T. A. Moban, of counsel.
   Mr. Justice Waterman

delivered the opinion of the court.

Upon the trial of this cause it was admitted that the ordinance under which appellee paid $1,500 as license fees to the city ivas invalid. The evidence showed that such sum was paid, under a demand by police and collection, officers sent out by the city to appellee’s place of business, and threats by such officers made to appellee that unless the fees demanded were paid, appellee would be prosecuted, its drivers arrested and it get into trouble. And that the officers of appellee paid the various sums demanded under the influence of such threats and to prevent its employes from being arrested. Payment under such circumstances was payment under duress.

It must be borne in mind that there is manifest distinction between demand and threats made by a private individual not possessed of any means of enforcing such threats, and payment to governmental authority clothed with power to enforce this demand by immediate arrest, interruption and stoppage of the business of one to whom such threats are made.

In the present case, the parties did not meet upon equal terms. The alternative presented to appellee was, to submit to the city’s exaction or discontinue its business. It was in the power of its officers and obliged to do as they required or cease to carry on business within the city limits. Money paid under such circumstances, in point of law, is not paid voluntarily, any more than that which one hands to a highwayman, under threat of personal violence. Swift Co. v. U. S., 111 U. S. 22; United States v. Ellsworth, 101 U. S. 170.

The City of Chicago, in collecting license fees under its ordinance, is not compelled to commence suit, have summons issued, and await the judgment of the court. It may and is accustomed to proceed summarily, by the arrest and stoppage of the business of those who are unlawfully carrying on business within its limits. In this State, when a man carrying on a lawful business, in a lawful manner, is obliged, in order to prevent the forcible interruption of the same by governmental authority, to submit to the unlawful demand of such government, whatever under such circumstances he so pays is not paid voluntarily, and may be recovered back in an appropriate action. County of LaSalle v. Simmons, 5 Gil. 513; Boyd v. Town of Olney, 42 Ill. 336; Prickett v. Madison County, 14 Ill. App. 464; City of Chicago v. Sperbeck, 69 Ill. App. 562; Robertson v. Frank Bros., 132 U. S. 17; City of Chicago v. Ernst Klinkert, 94 Ill. App. 524; Henry v. Chester, 15 Vt. 460; C. & A. R. R. Co. v. Chicago, Vermillion & W. Coal Co., 79 Ill. 121; 2 Dillon on Municipal Corporations, 4th Ed., Sec. 945; Kiel v. Chicago, 176 Ill. 137.

Criticism is made of the action of the trial court in admitting testimony as to conversations had between the officers of appellee when no one representing the city was present. In so far as such conversations went beyond a statement of what had been said or done by the city through its officers, such testimony was inadmissible. It was, however, proper to show that the subordinate officers of appellee told to the managing officer what had been said to them by officers of the city. Without reference to testimony objected to by appellant, it clearly appeared upon the trial that appellant had threatened to arrest the drivers of appellee unless the license demanded was paid, and that payment was made under the influence of such threats.

Appellant asked the trial court to hold certain propositions. None of these was other than a request to the court to make certain findings as to the facts of the case, and each was properly refused.

The judgment of the Circuit Court is affirmed.


text:
    Lawrence E. McGann, Commissioner of Public Works, v. The People, etc., ex rel.
    1. Mandamus — Writs of, Not To Be Issued Unless the Applicant Shows a Clear Right to the Relief Sought. — A writ of mandamus should not be issued unless the petitioner shows a clear right to the relief sought and avers in his petition every material fact necessary to show that a legal duty rests upon the respondent to do that which it is sought to compel him to do.
    3. Same — W7ien an Applicant for the Writ Is Prevented from Completing Within a Limited Time by Injunction.— A party acting under the provisions of an ordinance authorizing him to do so, applied for and obtained from the commissioner of public works a permit to lay a switch track in a public street in the city of Chicago to be completed within thirty days, and began the work, but was prevented from completing it within the time limited, by an injunction. Subsequently the injunction was vacated, and the thirty day limit having expired, he applied to the commissioner for another permit to proceed with the work. Upon the commissioner’s refusal he applied for a writ of mandamus to compel him to issue it. Held, that upon his showing that he was not at fault in failing to comply with the order of the department of public works in regard to the construction of the track, having been restrained by injunction and its vacation, he was entitled to the writ.
    3. Same — Right to the Writ, When Not Affected by the Repeal of the Ordinance Under Which the Applicant Is Acting. — A party acting under an ordinance authorizing him to lay a switch track in a public street in the city of Chicago, obtained from the commissioner of public works a permit entitling him to proceed with the work but to complete it , within thirty days; he was restrained by an injunction from proceeding with the work, which was subsequently vacated, but not until the time limited had expired, and in the meantime the ordinance authorizing him to lay the track had been repealed. It was held that he had, by virtue of the ordinance giving him permission to lay the track and the work done by him thereunder, acquired a right of which he could not be divested by the subsequent action of the city council in attempting to repeal the ordinance authorizing him to lay such track.
    4. Cities — Power Under the Act of lS7j to Grant the Right to Lay Tracks in Streets Restricted to Steam and Horse Railroad Companies.— The statute (Clause 90 of Section 1, Art. 5, Ch. 34, R. S. 1874) restricts the power of a city council to grant the use of, or the right to lay tracks in streets to steam or horse railroad companies, but does not restrict the right to grant the use of the streets for such purposes to individuals.
    5. Statutes — Must Be Interpreted to Mean What Is Plainly Expressed. — Where a law is plain and unambiguous, whether expressed in general or limited terms, it must be interpreted to mean what it plainly expresses. Courts are not at liberty to search for points or even probable meanings repugnant to the one plainly declared in the legislative enactment.
    6. Same — Where the Object of the Legislature Is Plain. — Where the object of the legislature is plain and the words of the act unequivocal, courts can not adopt a construction which they may suppose to have been the intention of the legislature, where such supplied intention is not supported by the words of the statute.
    7. Same — Imperative Rule of Construction. — There can be no departure from the plain meaning of a statute on the grounds of its unwisdom or of public policy. Contracts and statutes are to be read, understood and enforced according to the na ture and obvious import of the language used, without resorting to subtle "and forced construction for the purpose of either limiting or extending their operation. It is the duty of the courts to accept a statute as they find it, and enforce it as plainly written.
    8. Judicial Decisions — Rule of Construction. — In determining what courts have decided, it is to be borne in mind that it is not so much that which may happen to have been said in delivering an opinion that constitutes the law of the case, as that which was necessarily decided by the judgment given.
    9. Ordinances — Ministerial Officers Not to Give Their Opinion of Their Invalidity as a Reason for Disobeying Them. — A ministerial officer can not set up as a reason for refusing to comply with the ordinance in this case, his opinion that it was invalid. The duty of such officers is to obey the ordinances of the city.
    Petition for Mandamus. — Appeal from the Circuit Court of Cook County; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 1, 1901.
    Statement. — This cause arose upon a petition for a writ of mandamus asking that Lawrence E. Me Gann, as commissioner of public works of the city of Chicago, be compelled to issue a permit to the petitioner, M. D. Coffeen, to laya switch track on Jefferson street from a connection with the Pittsburgh, Cincinnati, Chicago & St. Louis EaiL road tracks to Wayrnan street and along Wayman street to Desplaines street. . The petitioner claimed the authority to have this permit by virtue of an ordinance passed by the city council of the city of Chicago on the third day of February, A. D. 1896. The petition, among other things, set forth that under the terms and provisions of the general ordinances of the city of Chicago it was the duty of petitioner to apply for and obtain a permit from the commissioner of public works of said city before entering upon the work of laying said switch track, and that petitioner, on or about February 12, 1896, made such application in writing, and on or about February 15, 1896, said commissioner of public works issued to petitioner a permit in writing, authorizing petitioner to proceed with the work of constructing said switch track, in accordance with the provisions of said ordinance, it being provided in said permit that the work should be completed within thirty days, otherwise the permit to become null and void; that thereupon petitioner, by the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, which had undertaken to do the work for petitioner, commenced to lay said track, but before the same had been-completed the said railroad company, induced thereto by the Chicago, Milwaukee & St. Paul Railway Company, tore up the portion of the track so constructed and refused to relay the same or to proceed further with the construction of said track; that on February 26, 1896, immediately after the tearing up of the portion of the track so constructed as aforesaid and before petitioner could recommence the work, the said Chicago, Milwaukee & St. Paul Railway Company exhibited and tiled in the Circuit Court of the United States for the Northern District of Illinois, Northern Division, its bill in chancery against petitioner, praying, among other things, that petitioner, his assigns, agents, servants and employes, be perpetually enjoined and restrained from laying down, constructing or attempting to lay down or construct, the switch track in said ordinance mentioned; and that afterward and on or about April 4, 1896, there was entered by said court an order or decree so enjoining and restraining petitioner until the further order of said court, which said order or decree of injunction remained in full force and effect until on or about November 10,1898, when the same was vacated in obedience to the mandate of the United States Circuit Court of Appeals for the Seventh Circuit (Coffeen v. C., M. & St. P. Ry. Co., 84 Feb. Rep. 46), and on the 9th clay of January, 1899, the said bill of complaint was dismissed out of said court.
    Charles M. Walker, Corporation Counsel and William H. Arthur, Assistant Corporation Counsel, attorneys for appellant.
    Morris St. P. Thomas, attorney for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

It is quite true, as is urged by appellant, that a writ of mandamus should not be issued unless the petitioner shows a clear right to the relief sought and avers in his petition every material fact necessary to show that a legal duty rested upon the respondent to do that which it is sought to compel him to do. Swift v. Klein, 163 Ill. 269; People v. Village of Crotty, 93 Ill. 186; People ex rel. McCagg v. Mayor, etc., 51 Ill. 18.

The principal contention of appellant is that the ordinance granted to the relator is invalid, because the petition for such ordinance was not signed by owners of land representing more than one-half the frontage of the street sought by such petition to be used for railroad purposes.

The power to lay out, establish, open, alter, widen," extend, grade, pave, or otherwise improve streets, alleys, avenues, sidewalks, wharves, parks, and public grounds, and vacate the same, to regulate the use of the same, to provide for and change the location, grade and crossings of any railroad, contained in chapter 24, article 5, section 1 of the Eevised Statutes of 1874, was, at the time of the passage of such ordinance, subject to the 90th clause of section 1, article 5, of said statute, which then was, and now is, as follows:

“ The city council or board of trustees shall have no power to grant the use of, or the right to lay down, any railroad tracks in any street of the city, to any steam or horse railroad company, except upon a petition of the owners of the land representing more than one half of the frontage of the street, or so much thereof as is sought to be used for railroad purposes.”

It will be observed that the 90th clause restricted the power of the city council to grant the use of, or the right to lay down, any railroad tracks in any street of the city, to any steam or horse railroad company, and did not restrict the right to grant the use of the streets for such purpose to individuals.

In this State, the powers of government are divided into three divisions: executive, legislative and judicial. The legislature has power to make laws. The judiciary has no power to make laws and no power to interpret where a legislative enactment is certain, harmonious, clear, and in accordance with the constitution.

Where a law is plain and unambiguous, whether expressed in general or limited terms, the statute must be intended to mean what it plainly expresses and consequently to leave no room for construction. Courts are not at liberty to search for points or even probable meanings repugnant to the one plainly declared in the legislative enactment. Cooley, Const. Lim. (6th Ed.), p. 69; 23 Am. & Eng. Ency. of Law (1st Ed.), p. 298.

When the object of the legislature is plain and the words of the act unequivocable, courts can not adopt a construction which they may suppose to have been the intention of the legislature, where such supplied intention is not supported by the words of the statute, even though the consequences should be to defeat the object of the act. Fry v. C., B. & Q. R. R. Co., 73 Ill. 399-402.

There can be no departure from the plain meaning of the statute on the grounds of its unwisdom, or of public policy. Contracts and statutes should be read, understood and enforced according to the nature and obvious import of the language used, without resorting to subtle and forced construction, for the purpose of. either limiting or extending the operation. It is the duty of courts to accept a statute as they find it and enforce it as plainly written. Beardstown v. Virginia, 76 Ill. 34, 40; Ottawa Gas Light & Coke Co. v. Downey, 127 Ill. 201; City of Springfield v. Edwards, 84 Ill. 626-632; Steers v. Brownell, 124 Ill. 27-31; 2d Dwarris’ Statutes (2d Ed.), 579, Smith v. State, 66 Md. 215.

In determining what courts have decided, it is to be borne in mind that it is not so much that which may happen to have been said in delivering an opinion that constitutes the law of the case, but that which was necessarily decided by the judgment given.

In determining, therefore, what rule was established by the case of Chicago Dock and Canal Company v. Garrity, 115 Ill. 155, we have to consider what was involved in such case and what was determined by the judgment of the court. It does not appear that in that case the question was raised whether the owners of land representing more than one-half the frontage of the street had joined in the petition or consented to the laying of the railroad tracks. The facts of the case as stated in the report were, that the city council had, by a majority vote of all the aldermen elected, passed an ordinance authorizing the Chicago Dock and Canal Company to lay tracks on Illinois street, east of St. Clair street, and by another ordinance, by the same vote, had authorized George Bullen & Co. to lay down tracks on Illinois street for a distance of one block. Bills having been filed to enjoin the laying of tracks in Illinois street, a permanent injunction was issued by the Circuit Court of Cook County. Upon application to the Appellate Court, the action of the Circuit Court was affirmed, and upon appeal to the Supreme Court, the decree of the Circuit Court and the judgment of the Appellate Court were reversed and the cause remanded to the Circuit Court with directions to dissolve the injunction and dismiss the bills.

Whatever is said by the Supreme Court, or any of the justices thereof, is entitled to great respect and most serious consideration.

The case of Chicago Dock & Canal Company v. Garrity, arose under ordinances passed in June, 1879, and November, 1880. Since then and before the adoption of the ordinance now under consideration, clause 90 of section 1, referred to in that case, has been rewritten, and as amended re-enacted by the legislature, so that now by the act of 1887, it is very clear that the legislative restriction is only to steam, dummy, electric, cable, horse or other railroad companies, whether incorporated under a general or special law of the State.

The respondent, a ministerial officer, could not set up as a reason for refusing to comply with this ordinance, his opinion that the ordinance was invalid. His duty is to obey the ordinances of the city. Houston v. The People, 55 Ill. 398; The People v. Klein, 63 Ill. 394; Coffeen v. C., M. & St. P. Ry. Co., 84 Fed. Rep. 46.

Subsequent to the making of the ordinance passed upon the petition of Mr. Colleen, an attempt was made by the city council to repeal this ordinance. We are not prepared to hold that the respondent could not, under such attempted repeal, hesitate and take counsel as to what he ought to do, but holding, as we do, the repealing ordinance to be invalid, we have no doubt that the peremptory writ of mandamus was properly issued by the Circuit Court. The ordinance granted upon the petition of Mr. Golfeen, “ provided further that the privileges hereby granted shall be subject in all respects to all ordinances now in force or which may be hereafter passed concerning railroads; and said M. D. Coffeen and his assigns shall keep so much of Wayman street as shall be occupied by said switch track, in such condition and repair as may be directed by the department of public works.”

It is further provided in and by section 2 of this ordinance :

“This ordinance shall be subject to amendment or repeal at any time for failure to comply with any order of the department of public works concerning proper construction and maintenance of said switch track.”

The repealing ordinance was not one concerning railroads, but only concerning the particular railroad which Mr. Golfeen had been authorized to construct.

The petition of the relator showed that he was not at fault in failing to comply with the order of the department of public works concerning the construction and maintenance of said switch track, having been restrained by an injunction issued by the "United States Circuit Court.

The petition of the relator set up the issuance of said injunction and its dissolution; also that Mr. Coffeen, to whom the ordinance permitting the laying of tracks was granted, had entered upon the prosecution of the work and was diligently proceeding therewith, until restrained by injunction. Such being the case, Mr. Coffeen had, by virtue of the ordinance giving him permission to lay a railroad track, and the work done by him thereunder, acquired a right of which he could not be and was not divested by the subsequent action of the common council in attempting to repeal the ordinance granted to him.

The judgment of the Circuit Court is affirmed. •


text:
    City of Chicago v. William J. English.
    1. Practice — Power of Courts to Impose Terms in Setting Aside Def emits. — It is well settled that courts, when exercising their discretion in setting aside a default and allowing the defaulted party to plead, may impose reasonable terms upon him.
    2. Appellate Court Practice — Objections to the Admission of Evidence Must Be Made in the Court Below. — A party failing to object and except in apt time, can not for the first time in the Appellate Court, insist that there was error in the admission of evidence in tile court below.
    3. Defaults — What is Admitted by — Practice.—When a defendant suffers a default to be taken against him, every material and traversable fact alleged in the declaration is admitted, and all that is required by the court is to make an assessment of damages.
    4. Same — In Actions Against Cities on Leases for Rent. — Where a default is taken against the city of Chicago in an action on a lease for" rent, it is not necessary to show that an appropriation had been made for the payment of such rent for any portion of the period covered by the lease.
    Covenant for Rents. — Appeal from the Superior Court of Cook County; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 1, 1901.

      Statement. — This was an action for breach of covenant. The declaration sets out that a certain lease was executed by and between the City of Chicago, the appellant, and William J. English, the appellee, on the fourth day of June, A. D. 1892, by which said English leased to the City of Chicago a portion of the second floor of a certain building owned by him in the said city, to be used as an office for the water works of the city, at a rental of $1,000 per annum. It was provided that the term of said lease should commence on the fifteenth day of July, 1892, and continue for one year, with the privilege to the city to extend the same on the same terms, and it was provided that said lease should be so extended1 from year to year, unless the city should notify said English in writing, by April 1,1893, that the lease would not be so extended; and further, that the said lease should be similarly extended from year to year, unless notice to the contrary, should be similarly given from year to year, as in the lease provided, that is, on or before April 1st of each succeeding, year. The declaration also alleges that no notice was ever served or given to the said English, as provided for in the lease, for terminating the same, and that on, to wit, the first day of April, A. D. 1900, the sum of $2,583.33 was due and unpaid to said English under, the terms of said lease, to the damage of said plaintiff, etc.
    A copy of the lease was attached to the declaration. The city had prepared a demurrer to the declaration in said cause which by inadvertence was filed in the Circuit Court. The result was that the plaintiff took a default in the Superior Court against the city. The city then, June 9 th, moved the Superior Court to set aside the default, and for leave to plead. The plaintiff opposed the setting aside of the default and the following took place :
    “ Judge Shope: Eule 7 of the Common Law Eules of the Superior Court of Cook County provides that on setting aside default the pleadings which the defendant neglected to file, shall be filed instan ter. I therefore ask that the demurrer mentioned in the affidavit of plaintiff as the one they prepared and neglected to file, shall be filed instanter in accordance with the rule.

      Counsel for City: We drew up the demurrer in good faith, not intending to have it filed for delay, but I should ask your honor to allow me a little more time to consult with Mr. Sutherland, who has particular charge of the case, so as to decide whethér to rely on the demurrer, or shall file our pleas as indicated for defense in our affidavits.
    Judge Shopé: I offer Eule 7 in evidence. The following is said Eule 7:
    Eule 7 of Common Law Buies of the Superior Court of Cook County: When either party neglects to file the proper pleading within the time fixed by law or the rule of the court, such party shall be considered" in default, and may be proceeded against accordingly. Defaults will not be set aside except upon affidavit of the party, agent or attorney filed, setting forth that there is meritorious cause of action or defense ; and the nature of it, in which the default may be set aside on such terms as the court may deem just, and the pleading, for the want of which such default existed, shall be filed forthwith, unless the court shall otherwise direct.”
    The Superior Court set aside the default on the 9th day of June, 1900, and ruled the defendant city “to plead or demur on or before 1-0 o’clock on the morning of June 12, 1900,” and in so doing said:
    “Judge Kavanagh: Mr. English should not be delayed in a speedy trial on account of the admitted negligence of the city in filing their pleadings in this cause. If I should set aside the judgment obtained by negligence of the city to file pleas in this case, and in setting aside the judgment I shall require the city to file their pleadings at once upon which they rely upon the trial of this case, so that the case may be tried Tuesday next.”
    The city thereupon filed a demurrer to the declaration. The plaintiff immediately gave notice that he would move the said Superior Court for a disposition of the demurrer on Wednesday morning, June 13, 1900.
    Wednesday morning counsel for the city appeared and opposed the hearing of the demurrer at that time, and contended that the argument of the demurrer could only be taken up and heard on a Saturday morning, and submitted to the court Bules 14 and 15 of the Superior Court, said rules being as follows:

      “ Rule 14. Motions of course are heard on the opening of court and before the call of the docket by the judge on whose trial calendar the'cause has been placed or to whom the said cause has been duly assigned. All such motions shall be placed upon a motion calendar and will be called and disposed of in their order upon such calendar. All motions not of course shall be made in writing, and when founded on matters of fact not otherwise appearing by the pleadings, or other proceedings in the cause, such facts must be presented by affidavit, which shall be filed with the motion, and a copy thereof served with the notice of the motion. Counter affidavits may ordinarily be filed in opposition to such motion; but counter or supplementary affidavits will not be allowed on applications for continuances, or in applications for security for costs, or for sureties on appeal bonds to justify or to set aside defaults.
    Rule 15. Motions not of course or contested motions will be heard on each Saturday of the term, after disposition of motions for new trial on that day, one day’s notice in writing having been previously given. The clerk . will from time to time prepare a calendar of contested motions upon which such motions will be placed' in the order in which notice thereof is given to him. A peremptory call of such motions will be made when ordered by the court, of which three days’ notice will be given in the Law Bulletin.”
    Wednesday, the 13th, at 10 o’clock a. m., the plaintiff appeared before the court by his counsel, and the defendant by its counsel also appeared in pursuance of said notice, and the plaintiff by his counsel then and there moved the court to take up for argument and disposition the demurrer of the defendant filed on Monday, the 11th day of June, 1900, and thereupon the following proceedings were had on said motion:
    “ Mr. Sutherland : Your honor, I object to arguing the demurrer filed in this cause to-day and insist that it shall be postponed to come up on the contested calendar. This is a contested motion and your honor has no business to hear this case to-day. The rules of this court require you to put this motion over until next contested motion calendar,. and I insist that it go over.
    The Court: But Mr. Sutherland, not being present, you perhaps do not understand the circumstances and conditions under which default was set aside in this case.

      Mr. Sutherland: I understand that there can be no conditions. This case follows the general rule on setting aside defaults and your honor has lost all control of the disposal of this case, except as applies in any case where default is set aside, according to the rules of this court.
    The Court: Please proceed to argue your demurrer.
    Mr. Sutherland: I decline to argue the demurrer at present, and insist on this being placed on the contested motion calendar. Your honor has no more right to override the rules of this court and require me to argue this demurrer at the present time, than you have to take one of the men in this court room and send him to jail; and I insist that you shall respect my rights and the rights of the city.
    The Court: Demurrer overruled.
    To which ruling and decision of the court the defendant, by its counsel, then and there duty excepted.
    Mr. Sutherland: Mow I ask time to file pleas in this cause.
    The Court: Motion for time to file pleas overruled.
    To which ruling and decision of the court the defendant, by its counsel, then and there duly excepted.
    Mr. Sutherland: Then, your honor, I wish thirty days in which to file bill of exceptions in the Supreme Court.
    The Court: Motion for time to file bill of exceptions allowed.
    Judge Shope: Mow, your honor, I ask this case to be set down for trial at an early date.
    The Court: It will be set down for the 18th day of June A. D. 1900.
    Mr. Sutherland : I ask for a jury on the trial of this case.
    The Judge : That is your right and privilege.
    ' This case was called for trial in the Superior Court before Judge Marcus Kavanagh and a jury on the 18th day of June, A. D. ,1900. The defendant was not present nor represented.
    The plaintiff testified as follows:
    “ I saw the said lease signed by the officials of the City of Chicago that have signed it, including Hempstead Washburne, then mayor of said city, and saw the city clerk affix the seal, which is the official seal of the City of Chicago, thereto.
    I turned over the possession of the premises described in the lease to the City of Chicago, and it moved in and took possession under said lease, and used and occupied the same for a £ water office5 for the collection of water rents under the ‘ water system of Chicago,’ as by law provided. The City of Chicago paid me installments of rent for said premises out of the water fund of said city.
    The City of Chicago has never served on me any notice of termination of the lease, as was provided in said lease, and the City of Chicago owes me for rent of said premises the sum of two thousand five hundred and eighty-three dollars and thirty-three cents (§2,583.33) as due up to April 1st, A. D. 1900.”
    There was a verdict and judgment for the plaintiff for $2,583.33.
    Charles M. Walker, Corporation Counsel, Thomas J. Sutherland and William H. Sexton, attorneys for appellant.
    William S. Hefferan, attorney for appellee; Shore, Mathis & Barrett, of counsel.
   Mr. Justice Waterman

delivered the opinion of the court.

Bule 15 does not declare that contested motions shall not be heard on any day save Saturday, nor that no contested motion will be heard unless placed upon a calendar of contested motions by the clerk for which three days’ notice has been given. Without regard, however, to this, and without expressing an opinion as to whether a contested motion can be heard upon any day save Saturday, it is well settled that the court, when exercising its discretion to set aside a default and allow a party to plead, may impose terms.

In the present case, the court did impose reasonable terms as a condition of setting aside the default — merely that the city should file its pleadings at once, so that the case might be tried upon the following Tuesday.

The city did not except to the action of the court in this regard, but acting under it, filed a general demurrer. Thereupon the plaintiff gave notice that it would call up the demurrer for argument and disposition upon the following Monday. Upon that day appellant appeared and objected to the demurrer then being heard. The court endeavored to explain the circumstances and conditions under which the default had been set aside, to which the defendant replied that there could be no conditions and declined to argue the demurrer, insisting it had a right to have the same placed on the contested motion calendar, whereupon ' the court overruled the demurrer and set the cause down for trial on the 18th day of June. To this setting of the cause for trial appellant did not except, but replied: “ I ask for a jury on the trial of this case,” to which the court replied, “ that is your right and privilege.”

One week thereafter, namely, on the 18th day of June, the case was called for trial. The defendant did not appear, whereupon such proceedings were had that the judgment appealed from, was entered in favor of appellee.

The court in overruling the demurrer and setting the cause for trial, acted entirely within its powers. Appellant urges that the evidence did not warrant a verdict, appellee, among other things, having testified that the City of Chicago owed him for rent of the premises described in the lease, $2,583.33. This statement, appellant urges, was inadmissible, and is a usurpation of the functions of the jury. This may be, but appellant neither objected to the giving of such evidence nor excepted to its admission.

A party failing to object and except in apt time, can not for the first time in the Appellate Court, insist that there was error in the admission of evidence. Wringley v. Cornelius, 162 Ill. 92-94; St. Louis, Alton & Terre Haute R. R. Co. v. Eggman, 161 Ill. 155-159; Kankakee & Illinois River R. R. Co. v. Chester, 62 Ill. 235; Mitchell v. King, 187 Ill. 452-460.

The testimony, however, was unnecessary. The lease having been introduced in evidence, examination of it showed that upon its face, up to the time of the bringing of the suit, a much larger sum than that testified to by appellee was due thereon, and a verdict might have been rendered and judgment entered upon the lease alone, with proof of its execution.

The defendant being in default, every material and traversable fact alleged in the declaration was admitted by the default, and all that was required of the court was to make an assessment of damages. Mass. Mut. Life Ins. Co. v. Kellogg, 82 Ill. 614-618; Simmons v. Jenkins, 76 Ill. 479-480; Dana v. Bryant, 1 Gil. 104; Miller v. Kingsbury, 128 Ill. 45-55; Gerveny v. Chicago Daily News, 139 Ill. 345-354.

It was not necessary that the evidence should show for what years the rent testified to accrued. The evidence showed that there was due up to a certain time, the amount for which a verdict was rendered.

Under the declaration and default, it was not necessary that the evidence should show that an appropriation had been made for the payment of such rent for any portion of the period covered by the lease. There being no error in the record warranting a reversal of the judgment below, it is affirmed.


text:
    Street’s Western Stable Car Line v. Louis Bonander.
    1. Master and Servant — Duties of the Servant. — A servant is bound to exercise ordinary care for his own safety. He must notice dangers which are apparent but he need not hunt for hidden perils.
    2. Same — Duties of the Master. — The master is bound to exercise reasonable care to provide reasonably safe appliances for the use of his servant, and a reasonably safe place for the doing of his work, and the servant has a right to rely upon the performance by the master of this duty.
    3. Hazards— What Are Not Assumed by a Car Repairer. — A. car repairer in the employ of a company engaged in repairing cars does not assume the increased hazard which comes to him from his employer’s foreman having notified the switchman of a railroad company to remove cars in bad order, nor the increased hazard which arises from the employes of such railroad company in proceeding to remove such cars without any notice that there were car repairers at work upon other cars on the same track, for whose safety, as a matter of common humanity, they ought to look out, and to whom they ought to give warning.

      Trespass on the Case, for personal injuries. Appeal from the Superior Court of Cook County; the Hon. Joseph E. Gary, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1900.
    Affirmed.
    Opinion filed November 1, 1901.
    Statement. —Appellee, Louis Bonander, brought an action for .personal injuries, by him sustained, at the trial of which a verdict was rendered against appellant for the sum of one thousand dollars. From a judgment entered upon said verdict this appeal was taken.
    Appellant, Street’s Western Stable Car Line, is a corporation which owns a large number of stable or stock cars. It neither owns nor operates a railroad, but leases these oars to different railroads. Its place of storing these cars, when idle, is at the Union Stock Yards in Chicago; but while the cars are in service, they are temporarily stored in the freight yards of the various railroad lines that run into the city of Chicago. The cars are kept in repair at all times by the appellant; and in order to do this, it is frequently necessary to make repairs on them in the switch yards and freight yards of the different railroad companies that use them.
    Louis Bonander, appellee, on the 24th day of August, A. D. 1896, the day he received the injury, was by occupation a car repairer, and had been employed in this line of work by the appellant, continuously, for a period of between two and three years immediately preceding his injury. During this time his services as car repairer were performed principally in the yards of the Chicago & Northwestern Ry. Co., working at times on the repair tracks where appellant’s cars, which were in “ bad order,” were temporarily stored for the purpose of being repaired, and working during the other portions of his time in the switch yards of these railroad companies where cars of the appellant not in “ bad order,” but needing slight repairs, were temporarily placed awaiting their turn to be made up into trains for service by the switching crews of the railroad companies. Plaintiff was injured while making slight repairs on cars standing' on track 17 in the switch yards of the Chicago & Northwestern Ry. Co. While he was working, without notice to or knowledge by him, a Northwestern switch crew pulled twenty or more cars off this track. At the immediate time of his injury he stood between two cars in a string of about fifteen cars standing on track IT. At this place he was tightening a nut at the end of one of the cars between which he stood. While doing' his work, the switching crew of the Chicago & Northwestern Ry. Co. kicked a number (five to fifteen) of cars onto this track, an<J in so doing bumped the cars so kicked against the line of cars on which Bonander was working. The movement which occurred in consequence of the bumping threw Bonander down, and one of his feet was cut off by the car wheels and his other foot injured.
    In doing such light repair work on the switch- yards, the ■ car repairers were at all times subject to the danger of having additional cars thrown in against the string upon which they were working; and appellant claims the car repairers were required to work in pairs; that is, appellant claims two men worked together, so that when necessary one might watch out while the other performed work; and in doing repair work requiring going underneath the cars they generally alternated in the work of repairing and watching. Two men would go to a string of cars, start in at the same end, taking opposite sides of the string, and examine them as they went along for light repairs, and when a nut was found loose it would be tightened, where it was missing a new one would be substituted, where a brake-shoe was displaced it would be adjusted, and other similar light repair work attended to. Their duties were to ascertain what needed attention in the way of light repairs and, having so ascertained, give it the attention it needed. At the time of the accident Bonander’s partner was one Louis Erickson, an experienced car repairer.
    The switch yard of the Chicago & Northwestern Ry. Co., in which they were then working, consisted of twenty-one parallel tracks, running east and west. These tracks were straight, and the portion just then being used was about 1,400 feet long, or long enough to store about thirty cars, occupying forty feet each on any one track. At the west end 'of these tracks was a “ lead track,” running north and south. Each of the twenty-one tracks in the switch yard was connected with the lead track by an elbow or curve, which curve was about three rods in length. This piece of curved track enabled the switching crew to throw cars off any of the twenty-one tracks in the switch yard onto the lead track, where they could be taken away, or, vice versa, to return cars from the lead track into the switch yard where they might be made into trains. The west end of each of the twenty-one tracks in the switch yard was at all times open, so that cars might be thrown in or pulled out. In other words, it was never flagged, blocked or closed.
    The following diagram of part of the switch yard shows the lead tracks and relative position of the twenty-one switch tracks and the place of the accident.

      O. W. Dynes, attorney for appellant.
    Douthart & Brendecke, attorneys for appellee.
   Mr. Justice Waterman

delivered the opinion of the court.

Appellee’s insistence that the judgment in this case should be reversed is based, primarily, upon three contentions : First, that the injury to appellee happened from a risk by him assumed; second, that appellee was hurt in consequence of his own negligence or the negligence of a fellow-servant.

A servant is bound to exercise ordinary care for his own safety; he must notice dangers which are apparent, but he need not hunt for hidden peril.

The master is bound to exercise reasonable care to provide reasonably safe appliances for the use of his servant, and a reasonably safe place for the doing of his work. The' servant has a right to rely upon the performance by the master of this duty.

The master must, to a reasonable extent, watch for and find that not necessarily obvious, while the servant can not overlook the apparent.

As is usual in personal injury cases, the evidence upon the trial of this cause was quite inharmonious.

There wTas evidence tending to show that appellant’s foreman, upon the morning of the day on which he was hurt, told him to look out, as they were going to throw cars in there, and there was evidence tending to show that he merely told him to look out.

When appellee went to work there were upon the tracks of the northwestern long strings of cars extending nearly up to the lead track. Appellee knew that he was working in a switch yard, a dangerous place, and that there was a possibility, if not a probability, that cars would be switched in and out of the yard.

When appellee "frent to work there were upon the track upon which he was-injured, some twenty-five cars between the car upon which he last worked and the lead track. It is manifest that while these cars there remained, there was comparatively little danger of the car upon which appellee was working when injured, being moved by the kicking of a car upon the twenty-fifth car from it.

Neither appellee nor Erickson appear to have had, prior to the injury, any warning that some twenty or more of the cars of this train had been pulled out, and that, a few “ bad order” cars having been removed therefrom, the remainder were about to be kicked back upon the same track and so might strike with violence and move the car upon which he was working. Nor does either seem to have had any warning that their foreman had told the switchman of the Northwestern, who had charge of the moving in and out of the cars upon these tracks, that there were bad order cars upon the track on which appellee was working, nor that consequently there would be a pulling out and throwing in of the cars on that track, in order to remove such “ bad order ” cars, and send them to the shop.

The switchman of the Northwestern road to whom information concerning these “bad order” cars-was given by appellant’s foreman, in order that such cars might be moved and taken to the repair shop, received neither information nor notice that there were any men at work repairing cars upon the track where these “bad order” cars were, and from which some twenty or more cars were pulled out and a number afterward kicked back.

Appellee did not assume the increased hazard which came to him from appellant’s foreman having notified the switch-man of the Northwestern to remove “bad order” cars, nor the increased hazard which arose from the employes of the Northwestern proceeding to do this, without any notice that there were men at- work upon cars for whose safety, as a matter of common humanity, they ought to look out, and to whom they ought to give warning.

There was evidence tending to show that it was the custom of appellee and his fellow-servant, Erickson, to Avatch, one for the other, when either, in his work of repairing went «under or between the cars. And there was evidence tending to show that the custom xvas to Avatch one for the other only when, in repairing, one went underneath a car. It did not appear that appellant had ever directed appellee not to go between cars save when Erickson was watching to see that no cars were moved upon the track on which appellee was working. Whatever usage there was in this regard was such as the workmen, of their own accord, had, while it did appear that sometimes they stood upon the top of the cars for the purpose of watching the movement of the trains on the lead and on the tracks.

So far as appears, neither appellee nor Erickson were sent there by appellant to watch. Their duties were to make light repairs upon the cars. If appellee was injured because Erickson failed to watch and warn him of what was going on, it was because of Erickson’s failure to do that which he was neither employed to do by appellant, nor, so far as conclusively appears, undertaken by him as a matter of either agreement or custom between him and appellee.

Was the injury to appellee the result of his own negligence? Appellee was employed to work to repair cars, not to watch out for the movement thereof, although he was bound to take notice that cars might be moved and that there might be danger to him therefrom. He was injured, not from what was apparent to him, nor from the pulling of cars out from the track upon which he was working, but by the kicking of cars onto such track.

The switchman testified that his manner of throwing the cars back was:

“ I cut the cars off and we pull the pin so that they will separate, and the engineer takes the slack out of the cars, and I give the engineer a signal and he will kick them or work the engine so as to give them momentum enough, so as to send them on the track where we wanted to get these cars in; and then I would give him a stop sign again, and that takes the slack out of them, and that is what we call kicking the cars in.. The cars would be disconnected from the engine entirely. At the time we kicked these cars down, when appellee was hurt, he must have been about twenty-five or thirty oar lengths away from, where we passed him.”

He further said:

“ The engine was on the lead; the lead curved off the track that appellee was on; the tracks run east and west and the lead runs kind of northwest, and then runs west again. We kick the cars of this lead; they ran about twenty-five or thirty car lengths.”

The switchman testified that at this time there were cars on the tracks at both sides of the track that appellee was working on and that they filled such tracks clear up to the lead.

There was evidence tending to show that there was a space of about three and a half feet between the different lines of cars, and no obstruction in this passage.

Appellee testified that in doing this light repair work, such as fixing a nut, he was accustomed to jump in quickly and jump out again before any cars could come and hurt him; that he did not know that any cars had been pulled out of the track upon which he was working.

The contentions of appellant are as to questions of fact, all of which have been found against him. The verdict of the jury declaring appellee guilty of negligence, as charged in the declaration, having been approved by the trial cou rt, we find in the record here presented no error such as requires us to set aside the judgment of the Superior Court, and it is therefore affirmed.