Wallner v. Chicago Consol. Traction Co.

• Decision Date: 08 June 1910
• Citation: 245 Ill. 148,91 N.E. 1053
• Parties: WALLNER v. CHICAGO CONSOL. TRACTION CO.
• Court: Illinois Supreme Court

245 Ill. 148

91 N.E. 1053

WALLNER

v.CHICAGO CONSOL. TRACTION CO.

Supreme Court of Illinois.

April 21, 1910.

Rehearing Denied June 8, 1910.

Error to Appellate Court, First District, on Appeal from Cook County Court; R. W. Clifford, Judge.

Action by George P. Wallner against the Chicago Consolidated Traction Company. Judgment for plaintiff affirmed by the Appellate Court, and defendant brings error. Reversed and remanded.John A. Rose and Frank L. Kriete (W. W. Gurley, of counsel), for plaintiff in error.

James G. Condon and Thomas J. Condon (Irvin I. Livingston, of counsel), for defendant in error.

DUNN, J.

The defendant in error, while a passenger upon a street car of the Chicago Consolidated Traction Company, the plaintiff in error, was injured by a collision with a train of the Chicago, Milwaukee & St. Paul Railroad Company. He sued both corporations in an action on the case. The plaintiff in error appeared, and filed the general issue. The railroad company did not appear, and the cause, on the motion of the defendant in error, was discontinued as to it. On a trial the defendant in error recovered a judgment against the plaintiff in error, which the Appellate Court affirmed. The only question presented on this appeal is whether there was an accord and satisfaction between the defendant in error and the railroad company, which was charged as a joint tort-feasor with the plaintiff in error.

The only evidence on the question of an accord and satisfaction was the following testimony of the defendant in error himself: ‘Q. You have received from the railroad company a thousand dollars on account of this accident, haven't you? A. I believe so. Q. On account of your injury? A. Yes, sir. Q. So you don't have any claims against it now? A. No, sir. * * * I made this arrangement-got the money from the St. Paul road-about October of last year. Q. They were sued jointly with the street car company in this case? When you started the suit you started it against both of them? Mr. Condon: When I started it? A. Yes, sir. Mr. Baily: When your lawyer started it; yes, that is the better way to put it. A. Yes, sir.’

There is no doubt that a release of one of several joint tort-feasors releases all, and that an accord and satisfaction by one joint tort-feasor has the same effect as to all. City of Chicago v. Babcock, 143 Ill. 358, 32 N. E. 271;West Chicago Street Railroad Co. v. Piper, 165 Ill. 325, 46 N. E. 186. It is equally certain that payment and acceptance of a sum of money in satisfaction of an unliquidated demand is a good accord and satisfaction. Ennis v. Pullman Palace Car Co., 165 Ill. 161, 46 N. E. 439. The evidence here is meager, but it is uncontradicted. After bringing suit against both corporations jointly, the defendant in error received of the railroad company $1,000 on account of his injury, and dismissed his suit as to it; having no further claim against it. This evidence indicates that the payment of $1,000 was received in satisfaction of the liability of the railroad company, which was thereby relieved of all further liability on account of the injury. If the facts of the payment and acceptance of this sum, the dismissal of the suit against the railroad company, and the statement of the defendant in error that he had no further claim against it, are capable of another construction, the burden of furnishing the explanation or qualification which would give them a different effect was upon the defendant in error.

The question of accord and satisfaction was raised by motions made at the close of the plaintiff's evidence and at the close of all the evidence to direct a verdict for the defendant. It is insisted on behalf of the defendant in error that these motions did not preserve the question for review, because they were general, and did not set forth the grounds upon which they were made. The only grounds upon which such a motion can be made are that the declaration does not state a cause of action, or that the evidence, with all reasonable inferences to be drawn therefrom, taken most strongly against the maker of the motion, does not fairly tend to support a verdict for the plaintiff; and it is not necessary to set out in such motion the particular defect of proof claimed to exist. The party making the motion may rely upon the failure of proof in any respect necessary to sustain a verdict. The question presented by such a motion is not necessarily, as insisted upon by defendant in error, whether the evidence tends to support the allegations of the declaration, but is...