text:
    A. J. C. Cottingham et al., Trustees of Dillon Methodist Episcopal Church, South, Appellees, v. National Mutual Church Insurance Company, Appellant.
    Gen. No. 23,762.
    1. Insurance, § 115

      —right to bring suit on contract for, to enforce liability of fire insurance company. A suit to enforce the liability of a fire insurance company may be brought on the contract for insurance as well as on the policy itself, the real cause of action being the same in both the contract and the policy.
    2. Insurance, § 115*—what is nature and effect of contracts for. Contracts for insurance are considered as temporary contracts pending the issuance of the policy and, if the minds of the parties have agreed upon the essential elements, they are sufficient to hold the insurer.
    3. Insurance, § 115*—when contract for is completed. Where, by correspondence, an insurer offers to insure upon certain terms and the offer is accepted by mail, the contract is complete from the date the acceptance is mailed.
    4. Insurance, § 115*—what is valid contract for. It is not necessary to a valid contract of insurance, that the details be agreed upon, the essential terms expressed or the premium paid, unless such payment is demanded as a condition, but it is sufficient if the terms can be gathered from the circumstances and if the property, the period and the rate are understood or can be ascertained.
    • 5. Insurance, § 115*—when failure of minds to meet on contract for is not shown. In an action to recover on a contract for insurance on two buildings, where the offer of the insurer has been accepted, a failure of the minds of the parties to meet is not shown by evidence that the exact amount to be placed on each building and the exact amount of the premiums had not been determined, where it appears that the total amount on the two buildings had been agreed upon and the amount to be placed on each was ascertainable by computation, as was also the amount of the premium.
    6. Insurance, § 115*—what does not defeat agreement for insurance. Where the parties to an agreement for insurance fix the premium, basis at a certain per cent, of the premium charged by old line companies without stating what the rate of such old line companies is, the agreement is not defeated by the fact that after the offer to insure has been accepted the insurer questions the statement of the insured as to the amount charged by old line companies.
    7. Insurance, § 141

      —when term of insurance begins. Where one to whom an offer of insurance has been sent by an insurer mails a letter accepting the contract offered by the insurer, the term of the insurance begins when the letter of acceptance is mailed.
    8. Insurance—when insurer precluded from claiming nonexistence of contract for, before issuance of formal policy. Where, at the outset of negotiations for a contract of insurance, the insurer invites the other party to enter into a temporary contract, suggesting that this can be done by mail or wire, and pursuant to this invitation the parties proceed by correspondence to an agreement upon the essential terms of the contract, the insurer cannot be heard to claim the nonexistence of a contract of insurance before the issuance of a formal policy.
    9. Insurance—when provision in application that insurer not liable until policy approved is waived. The effect of a clause in an application for insurance that the insurer will not be liable until the policy is "approved by the home office is waived where the correspondence in regard to the contract is held directly with the secretary and manager of the insurer at the home office.
    Appeal from the Circuit Court of Cook county; the Hon. David F. Matchett, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and judgment here.
    Opinion filed March 5, 1918.
    N. M. Jones, for appellant; Samuel A. Harper, of counsel.
    Alden, Latham & Young, for appellees; Charles Martin, of counsel.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiffs, whose church was destroyed by fire, brought suit against the defendant corporation to recover insurance, and upon trial by the court had judgment for $14,500, from which the defendant appeals.

Plaintiffs are the trustees of the Dillon Methodist Church, South, which is located at Dillon, South Carolina, where it owned and occupied a church building and parsonage. Defendant is a corporation dealing in fire insurance, organized under the insurance laws of the State of Illinois, with its principal office in Chicago. It makes a specialty apparently of issuing fire insurance upon church and parsonage buildings throughout the United States, soliciting business largely through circulars and letters. On December 18,1914, it sent from the home office a letter addressed to Rev. A. J. Cauthen, the pastor of plaintiffs’ church, at Dillon, South Carolina, calling attention in earnest language to the necessity of having church buildings and parsonages insured; that the losses from fire had averaged about one each day, and that the Dillon church or parsonage might be the next to go, with the loss of property which represented the sacrifice, etc., of so many faithful people. It presented that the cost of protection under defendant’s system was trifling, and advised “prompt use of the mails or wires,” for experience had shown that a fire never came at a convenient time. The letter concluded with: “Upon arrival of request by wire, we will bind insurance pending receipt of regular application, and agreement as to terms.” This was followed by correspondence between the parties looking to the issuance of a policy, but before this culmination plaintiffs’ church was destroyed by fire, and the question for determination is whether the correspondence progressed to that stage of certainty as to terms which imposed an obligation upon the defendant.

Inclosed in the above letter was a printed form of application for a policy of insurance. It contains a number of questions as to the building, and directs that a separate application should be made on the parsonage. The various questions contained in the application were partially filled in by the plaintiffs, who wrote upon the application- the following: ‘‘ This is not application, but inquiry for rate on $25,000.” It also contained the printed statement: “That no liability of the company shall attach until this application has been actually approved at the Home Office.” This application was inclosed with a letter dated December 28, 1914, from Mr. Cauthen, the pastor, addressed to the company at its home office in Chicago, as follows:

“I enclose herewith application for rates of insurance on our church for an amount not exceeding $25,000. Would like to know rate on parsonage described as follows: Two-story, frame, nine rooms, heated with gTates, cost about $5,000. It is not nearer a building than the church—fifty feet away. The next nearest house is across the street sixty feet. It has water connections and is lighted with electricity. We now have it insured but we wish to transfer the whole or a part of all our property into a cheaper company, provided it is safe. Please give me the information needed as to your company. ’ ’

To this the defendant replied under date of December 30, 1914:

“Tour favor of the 28th inst. is received.
“We are in position to take care of $14,500 on your church. Our policy, of course, would permit other insurance, so that the additional amount may be taken care of in other companies. We try to be conserva.tive and never accept excessive amounts subject to any one fire. The church and parsonage being only 30 feet apart, we must confine our line on both buildings to $14,500.
“When filling out the application for rate on church, we regret that you did not reply to question No. 17, asking for the rate charged by old line companies. The enclosed red circular will explain more fully-why it is to the interest of our applicants to give us this information. In the absence of a reply to this question, we state that our premium for the first year will be 10 per cent, less than one-third of the amount reliable old line stock companies would charge you, all in advance, for a three-year policy, plus a policy fee of $1.50. The policy fee is to be paid only at the beginning of the five-year term.
“Our policies, as you doubtless know, are issued for a term of five years, but instead of collecting in advance for the entire term, as is done by stock companies, we collect in annual installments.”

The red circular referred to and enclosed is a statement calling the attention of applicants to the desirability of answering the question in the application regarding the stock company rates, “if they can do so without special inconvenience”; that the defendant was able to make rates much less than those fixed by stock companies and still give substantial dividends to the policy holders; that the defendant “ought to have this information, but where it is not convenient to give it to us, we get along without it the best way we can.” Plaintiffs’ reply to this letter is dated January 5, 1915, and is as follows:

“In reply to yours of recent date, will say that our Board has instructed me to request you to issue a policy on our church and parsonage for the amount of $14,500—fourteen thousand five hundred dollars—as per your offer. The present insurance is at the rate of $6.50 per thousand; which, according to your statement, will make your rate $1.95 per thousand. We value the entire property at about $48,000, the church at $40,000, and the parsonage at $8,000. I suppose these figures will determine the relative amount of insurance on each, should either be destroyed. Hoping to hear from you at an early date as to this matter, I am
Very truly yours,
A. J. Cauthen. ”

This letter was duly mailed on the afternoon of January 5, 1915, in the post office at Dillon, and was received at the Chicago office of the defendant on the afternoon of January 7, 1915. On the intervening day, that is, on the afternoon of January 6, 1915, the church building in question was totally destroyed and consumed by fire, at which time the letter was in transportation through the mails. On January 7th plaintiffs notified the defendant by letter of the destruction of the church by fire, and asked the defendant to send a representative to investigate or to send proofs of loss. On January 8, 1915, the defendant, before it had received the letter apprising it of the fire, and without knowledge of this, wrote plaintiffs as follows:

“Tour favor of the 5th instant ordering policy for $14,500 on your church and parsonage is received.
“Before proceeding, permit us to trouble you for a little additional information. As the Church and parsonage are separate buildings, it will be necessary for us to place a specific amount of insurance on each. Kindly inform us how much of the $14,500 you wish to have cover your parsonage.
“We note what you say regarding the stock company rate being $6:50 per thousand. Do we understand correctly that this is their rate for one year on the church and that for three years they would charge you twice this amount or $13.00? Is the rate the same on the parsonage? The enclosed red circular will explain more fully why we do not lose sight altogether of the rates charged by stock companies. A rate of 65 cents per hundred for three years on a church is lower than reliable stock companies usually charge.
“In order that you may be properly protected, we bind as of twelve o’clock noon today, $12,000 on your church and $2,500 on the parsonage, subject to proper rate, and will hold our binder in effect for ten days, thus allowing ample time for your reply to reach us.”

Upon receipt of plaintiffs’ letter notifying defendant of the fire, it replied disclaiming any liability for insurance.

It has been settled by many decisions that a suit to enforce the liability of an insurance company may be brought on the contract for insurance as well as on the policy itself; that the real cause of action is the same in both the contract and the policy. Such contracts are considered as temporary contracts pending the issuance of a more detailed policy of insurance, hut if the minds of the parties have agreed in the temporary contract upon the essential elements, it is sufficient to hold the insurance company.

“Where an application for insurance is presented to a company, stating what is wanted and the terms, and its officer or any agent having authority to issue a policy says one will be issued on that application, the minds of the parties have met in the execution of a contract and a contract for insurance has been consummated.” Firemen’s Ins. Co. v. Kuessner, 164 Ill. 275, 280.

Where by correspondence an insurance company offers to insure upon certain terms and the offer is accepted by mail, the contract is complete from the date the acceptance is mailed. Tayloe v. Merchants’ Fire Ins. Co., 9 How. (U. S.) 390; Burton v. United States, 202 U. S. 344; Pennsylvania Lumbermen’s Mut. Fire Ins. Co. v. Meyer, 126 Fed. 352.

It is not necessary that the details be agreed upon; it is sufficient if the property, the period and the rate are understood or can be ascertained. Eames v. Home Ins. Co., 94 U. S. 621; Continental Ins. Co. v. Roller, 101 Ill. App. 77; Barlow v. Farmers’ Mut. Fire Ins. Co., 128 Ill. App. 580. And it is not necessary that the essential terms be expressed; it is. sufficient that these may be gathered from the circumstances. Concordia Fire Ins. Co. v. Heffron, 84 Ill. App. 610. The risk is deemed to have commenced from the date of the contract. Rose v. Mutual Life Ins. Co., 240 Ill. 45; Firemen’s Ins. Co. v. Kuessner, 164 Ill. 275. A payment of the premium is not necessary unless demanded as a condition. Kuessner case, supra; Cohn v. Mechanics & Traders Ins. Co., 175 Ill. App. 594.

In view of these decisions this court is of the opinion that when plaintiffs mailed their letter of January 5, 1915, accepting the proposition made in the prior letters of the defendant, the contract was completed on that date.

Defendant asserts that the minds of the parties did not meet with reference to three essential particulars:

First. That the definite proportion of the total insurance to be placed on each building, the church and the parsonage, was not determined. We hold that it was.' It will be noted that while the aggregate amount of insurance on both buildings was $14,500, yet the agreement was for separate policies on these buildings. The application inclosed in the first letter to plaintiffs so directed, and plaintiffs’ reply of December 28th refers to the application as on the church, with an inquiry as to the rate on the parsonage, with a description as to its size, number of rooms and cost, also as to its location with reference to the church and other buildings. The subject-matter of this letter has to do almost wholly with insurance on the parsonage as a separate proposition. The reply was that as the church and parsonage were only 30 feet apart, defendant would not insure more than $14,500 on both buildings, to which plaintiffs replied in their letter of January 5th that the church was valued at $40,000 and the parsonage at $8,000, and that these figures were sent to determine the relative amount of insurance on each building. This leaves it a simple matter of mathematical computation. The aggregate of insurance of $14,500 was to be divided between the two buildings in the ratio of five to one, which computed is $2,416.67 on the parsonage, and $12,083.33 on the church building. As this is definitely determined from the data given by plaintiffs, it comes within the rule that that which can be ascertained by computation is as certain as if definitely expressed.

Second. Did the minds of the parties meet as to the premium? The proposition contained in defendant’s letter of December 30th is that “the premium for the first year will be 10 per cent, less than one-third of the amount reliable old line stock companies would charge you, all in advance, for a three-year policy, plus a policy fee of $1.50. The policy fee is to be paid only at the beginning of the .five-year term.” This fixes definitely as a basis whatever old line stock companies would charge for a three-year policy. It is not necessary that these exact figures should be stated. It is exactly stated as to how much less than this defendant’s insurance would cost plaintiffs. It would be a matter of ready ascertainment by inquiry as to the amount charged by the old line companies, and the less cost in defendant’s company easily computed from its figures in its offer.

Defendant seeks to build an argument on the fact that after receipt of the letter of acceptance the defendant company seemed to question a statement in plaintiffs’ letter of January 5th concerning the rate in other companies. We do not think this is important: First, plaintiffs were not undertaking to state the rate in the old line companies but only the rate of the present insurance; and second, even if the rate in the old line companies had been shown to have been less than defendant had supposed, this would not relieve it of its undertaking at a reduced rate, where the percentage of reduction was definite. If A should contract to sell his horse for 10 per cent, less than a neighbor had sold his, he could" not avoid his obligation because it subsequently developed that the neighbor had sold at a less figure than A had supposed.

Third. It is said that the term of the insurance is not fixed, but this is negatived by the rule above referred to that the term of insurance begins when the minds of the parties have met in contract, and in the present circumstances under the law it began when plaintiffs had mailed to defendant their letter of acceptance of January 5, 1915; and the application and correspondence clearly designate a term of five years.

The three particulars above referred to are the only ones in which it is claimed that the correspondence is uncertain, but in the opinion of the court these particulars are either definitely stated or can be as definitely ascertained by computation. It follows, therefore, that the contractual relations between the parties existed at the time of the fire.

It might be added as pertinent to the general situation that the very first letter from the defendant to the plaintiffs was an invitation to enter into a temporary or binder contract; that it suggested that this could be done by mail or wire; and, therefore, when in pursuance of this invitation the parties proceeded by correspondence to an agreement upon the essential terms of the insurance contract, defendant cannot be heard to claim the nonexistence of such contract before the issuance of the formal policy.

As to the clause in the application that the defendant would not be liable until the policy had been approved by the home office, it is sufficient to say that the correspondence of plaintiffs was held directly with the secretary and manager of the defendant company at the home office, and hence the effect of this clause was waived.

However, we are not able to concur with the trial court as to the amount of the judgment. If we are correct in our conclusion that the amount of the insurance placed on each building was fixed, it would follow that plaintiff is entitled to recover only the amount of the insurance on the particular building destroyed. The parsonage was not destroyed, only the church building, and upon this latter building, as we have stated, the contract of insurance was for $12,083.33. We are of the opinion that the court was in error in entering judgment for the entire' amount of $14,500, and hence that judgment is reversed and judgment for the plaintiffs is entered in this court for $12,083.33.

Reversed and judgment here for $12,083.33.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    F. C. Eastman, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 23,798. (Not to be reported in full.)
    Abstract of the Decision.
    1. Street railroads, § 86

      —when railroad company not liable for collision with wagon. In an action to recover for personal injuries sustained by reason of the collision of a street car with plaintiff’s wagon which he was driving, where the evidence shows that he attempted to drive across the track in front of the approaching car without regard to its nearness or rate of speed, and that as soon as he attempted to do so the motorman sounded the gong, turned off the power, put on brakes and stopped as quickly as possible, plaintiff cannot recover.

      Appeal from the Circuit Court of Cook county; the Hon. David F. Hatchett, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed with finding of fact
    Opinion filed March 5, 1918.
    Statement of the Case.
    Action by F. C. Eastman, plaintiff, against Chicago Railways Company, defendant, to recover for personal injuries sustained by plaintiff in a collision between his wagon, which he was driving, and defendant’s street car. From a judgment for plaintiff for $2,400, defendant appeals.
    Busby, Weber & Miller, Rose &. Symmes and Arthur J. Donovah, for appellant; Johh R. Guilliams, of counsel.
    A. H. Ranes and Hugh R. Porter, for appellee; Harry F. Brewer, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI t9 Xy, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.

2. Street railroads, § 86—what care required of motorman towards person he thinks mil not attempt to drive across track. Where there is nothing to cause the motorman of a moving car to apprehend that a person driving in the street will attempt to cross the track in front of the car, he is obliged, as to such person, to exercise only reasonable care, to be measured by the apparent situation and the dangers naturally to be expected under the circumstances.


text:
    Richard J. Ton, Appellee, v. Steven Nemeth, Appellant.
    Gen. No. 23,895. (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Marcus Kavakagh, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    Statement of the Case.
    Forcible detainer by Richard J. Ton, plaintiff, against Steven Nemeth, defendant, before a justice of the peace to recover possession of a tract of land. Summons was issued, trial and judgment rendered for the plaintiff. Defendant sought no appeal from that judgment before the justice and did not apply to the justice to fix the amount of an appeal bond, but presented to the clerk of the Superior Court his appeal bond, where it was filed. Subsequently there was filed with the clerk of the Superior Court the transcript of the justice of the peace, accompanied by the complaint filed and the summons. The certificate accompanying the transcript stated that it was a true and correct transcript of the judgment and that it and the papers accompanying it, two in number, contained a full and perfect statement of all the proceedings before the justice in the cause. Neither the transcript nor any of the papers accompanying it referred to any prayer for an appeal, nor to an application to fix or the fixing of the amount of the appeal bond by the justice of the peace. Subsequently plaintiff filed in the office of the clerk of the Superior Court a limited appearance for the purpose of making a motion to dismiss the appeal of the defendant. After several continuances the motion to dismiss was allowed. From the order dismissing the appeal, defendant appeals.
    Abstract of the Decision.
    1. Justices of the peace, § 190

      —when amount of bond must he fixed. An appeal from a judgment of a justice of the peace in forcible detainer cannot be perfected by filing the bond in the office of the clerk of the court to which the appeal is sought to be taken, without first having the amount of the bond fixed by the justice before whom the case was tried.
    2. Judgment, § 372*—how may not he contradicted. The transcript of a judgment imports verity and cannot be contradicted by affidavits.
    3. Justices of the peace, § 223*—when appeal should he dismissed. Where, on an appeal to the Superior Court from the judgment of a justice of the peace in forcible detainer, the bond is filed in the Superior Court without its amount having been fixed by the justice of the peace, the appeal should not be heard on its merits but should be dismissed.
    Lowell B. Mason, for appellant.
    Frederic B. DeYoung and Gustave Nelson, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Presiding Justice Barnes

text:
    The People of the State of Illinois ex rel. Michael L. Deddo, Appellee, v. William Hale Thompson, Mayor, et al., Appellants.
    Gen. No. 23,120.
    1. Municipal corporations, § 82

      —how ordinance regulating building of garages may not be repealed, amended or suspended. An ordinance declaring it unlawful for any person to locate, build or maintain a garage within 200 feet of any building or the grounds thereof used for a hospital or public school cannot be repealed, amended or suspended by an order of the city council directing the commissioner of buildings to issue a permit in contravention thereof and one on whose behalf such an order is issued receives no legal right by such order.
    2. Estoppel, § 94*—when doctrine of estoppel in pais applies to municipal corporations. While the doctrine of estoppel in pais is applicable to municipal corporations as justice and right may require, the application of the doctrine to them depends largely on the special facts and circumstances in each case.
    3. Estoppel, § 94*—when doctrine of estoppel in pais applied to prevent city from refusing to issue license for garage. Where a garage is built at great cost by one in reliance upon an order of the city council directing the building commissioner to issue a permit therefor, without which he would not have erected the building, and after he had obtained the consent of everyone interested to the erection and operation of the garage, the doctrine of estoppel in pais will he applied to prevent the city from refusing to issue him a license to conduct the garage, and mandamus will • be granted to compel its issuance, even though the garage was constructed in violation of an ordinance regulating the distance of such buildings from schools and hospitals, of which ordinance the builder had knowledge.
    Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 12, 1918.
    Samuel A. Ettelson, for appellants; Ralph Gr. Crandall, of counsel.

      Eugene L. McGakry, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This appeal is from an order for the issuance of a writ of mandamus directed to appellants as respondents, commanding the issuance of a license to the relator to keep, conduct and operate a public garage for the storage and repair of automobiles upon certain premises in the City of Chicago. The question of the right to such writ arises upon overruling respondents’ demurrer to the replication. It is agreed that the pleadings present the single question whether respondents are estopped to deny petitioner’s claim of right to maintain and operate his garage at the premises referred to.

The controlling facts are that a city ordinance declared it unlawful for any person to locate, build, construct or maintain a garage within 200 feet of any building or the grounds thereof used for a hospital or public school; that the City Council passed an order directing its Commissioner of Buildings to issue a permit to relator to construct a garage at the premises in question, according to plans to be approved by the Department of Buildings; that the garage was within the prohibited distance from a hospital and school; that the authorities of each and the owners of property in the block of the requisite frontage gave their consent to the issuance of the permit; that the permit was issued; that in conformity therewith the relator constructed a building for garage purposes at a cost of $30,000; that afterwards when he applied for a license to conduct and operate the garage it was denied on the ground that the building was within 200 feet of a public school and hospital and because the ordinance prohibited its issuance under such circumstances.

It is conceded that the ordinance cannot be repealed or amended or suspended by such order (People v. Latham, 203 Ill. 23, and cases there cited), and that no legal right was conferred thereby on relator. (Burton Co. v. City of Chicago, 236 Ill. 383.) . But appellee contends that the facts present a case for the application of the doctrine of estoppel in pais, in that the relator acting in good faith under affirmative acts of the city has made expensive and permanent improvements that would not have been made but for the order in question and which cannot be put to any other practical use without an additional expenditure of $50,000, which the relator is unable to raise.

It has been frequently held in this State that the doctrine of estoppel in pais is applicable to municipal corporations, and that they will be estopped or not “as justice and right may require.” But it depends largely on the special facts and circumstances in each case whether the doctrine will be applied. The exposition of the doctrine is fully stated in People v. City of Rock Island, 215 Ill. 488, and Dillon on Municipal Corporations (5th Ed.), vol. 3, sec. 1191, and several Illinois cases are referred to where it was applied. In said case the court said what is particularly applicable to the facts here, that “where a party acting in good faith under affirmative acts of a city has made such expensive and permanent improvements that it would be highly inequitable and unjust to destroy the rights acquired, the doctrine of equitable estoppel will be applied.” The court also referred to two conditions of fact also present here, “affirmative action by the public authorities with the apparent approval of everyone interested” and a change of position and great expenditure which would not have been made but for the positive action of the city and its officers.

Most of said Illinois cases involved the private use of a public street or ground by one who had been induced or encouraged to make permanent improve-' ments or large expenditures connected with such use in reliance on some act or conduct of the municipal corporation. While the public right was not questioned, the assertion of it under the special circumstaneés was deemed wholly inequitable and unjust, and the doctrine of estoppel was applied on the broad basis of what “justice and right required.”

The same basic facts of estoppel in pais are here— establishment of permanent improvements at great cost in reliance upon an affirmative act of the city without which they would not have been made, and an attempt to prevent their use by the city on the ground that its act was unlawful.

The doctrine being applied primarily to prevent wrong and injustice, we apprehend that the city may be estopped from questioning its own conduct in refusing to act when under the same circumstances it would not be heard to assert its right to the detriment of one it had induced to act in good faith upon its assumed authority.

We recognize the right and duty of the city generally to enforce its valid ordinances. But in Martel v. City of East St. Louis, 94 Ill. 67, the city was es-topped from recovering a penalty under its ordinance forbidding the keeping of a dramshop without a license, where such keeping was induced by the act of its officers. It is equally unjust that a city should refuse to issue a license to operate a garage which by the solemn act of its council it has induced the owner to erect- at great cost with the expectation of receiving the license. In such a case the city ought not to be permitted to say when the license is applied for that he knew when it issued the permit to erect his building that such permit was unlawful or. unauthorized.

Were it a question of enforcing the issuance of that permit under the order authorizing it, a different question might arise. And were it evident that any one would be denied the protection the ordinance was designed to give, the fact that the relator acted with unquestioned knowledge of its existence might deprive him of equitable standing. But as apparently all interested parties expressly consented to the erection and use of the garage, it may be assumed, without facts to the contrary, that such use would not contravene any real purpose of the ordinance. The only respect in which the building does not conform to the ordinance requirements is in shortage of distance from the school and hospital. But that is so slight that the objects of the ordinance would hardly be deemed affected thereby. It is more a departure from the letter than the spirit of the ordinance.

Appellants lay much stress on relator’s presumed knowledge of the ordinance and limitation of the powers of municipal officers, and urge that estoppel will not be based on their illegal acts. (Citing Seeger v. Mueller, 133 Ill. 86; Hope v. City of Alton, 214 Ill. 102; People v. Parker, 231 Ill. 478; Burton Co. v. City of Chicago, 236 Ill. 383; Wise v. City of Chicago, 183 Ill. App. 215.) Where the doctrine has been invoked much depended upon the particular circumstances whether the aggrieved party was in a position to invoke it or the municipal corporation to oppose its application. Here appellants’ claim is predicated on the conjunction of two facts, the city’s unlawful act and the relator’s presumed knowledge of it. These facts alone, however, have not always precluded application of the doctrine, especially if the circumstances were such as would produce great hardship, and promote a fraud and injustice. These facts were present in People v. City of Rock Island, 215 Ill. 488, supra, but the court referred to a “condition out of the ordinary,” and laid special stress on the affirmative act of the city in inducing the injured party’s course of action. In People v. Wieboldt, 233 Ill. 572, the doctrine was again applied in a mandamus proceeding where permanent improvements at large expenditure were made in reliance on the vacation of an alley by the City Council. The court was divided in opinion as to whether the vacation was a valid exercise of its power, but concurred in applying the doctrine.

While presumed knowledge of, the powers of the city or its municipal officers has in some particular states of facts precluded one from invoking the doctrine, yet many cases may be found where such knowledge existed or was presumed and the doctrine nevertheless applied. Such is the fact in many of the cases above cited, and it has generally been applied where there has been an unquestioned affirmative act by the municipal corporation or its officers inducing a change of position and consequent injury that otherwise would not have resulted.

In denying its application in the cases cited by appellants, the facts in each case are distinguishable from those in the case at bar. In the Seeger case, supra, it was said that the aggrieved party could not be deemed to have been deceived or misled by the acts of municipal officers done without legal authority. While in the instant case the building permit was invalid because in contravention of the ordinance, yet it was not unlawful in the sense that the city exceeded its powers, as in most of the cases cited by appellants. It could have repealed or modified the ordinance so as to bring the individual case within its provisions. In the City of Alton case, supra, it was sought to enforce a contract against the city that was expressly prohibited by a valid ordinance. The Parker case, supra, involved a claim to money obtained and diverted by a town-meeting resolution at the instance of parties who knew that the town meeting had no such authority, and the court said that they were not misled or deceived by the void action which they procured to be taken. In the Burton Co. case, supra, where one who had procured the Commissioner of Buildings to issue, without any authority whatever, a permit to construct a vault under an alley, the court said that what had been done in preparation for the construction “was not induced by any action of the city or any of its officers.”. In the Wise case, supra, nothing had been done under an unlawful permit for a garage before the same was revoked. In none of these cases do we find present, as here, all the elements of estoppel and good faith based upon an affirmative act of a municipal corporation inducing a detrimental change of conditions. The judgment will be affirmed.

Affirmed.


text:
    Maryanna Powrozek, Appellee, v. Bane Pollan, Appellant.
    Gen. No. 23,209. (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Mabcus Kavanagh, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 12, 1918.
    Statement of the Case.
    Action by Maryanna Powrozek, plaintiff, against Bane Pollan, defendant, to recover damages for personal injuries alleged to have been caused by the giving way of a porch railing on premises rented by. plaintiff from defendant. From a judgment for plain-' tiff, defendant appeals.
    Wilkebson, Cassels & Pottee, for appellant; Ralph F. Pottee and Kenneth B. Hawkins, of counsel.

      Abstract of the Decision.
    1. Landlord and tenant, § 25S

      —when evidence supports findings in action by tenant for injuries due to giving way of porch railing. In an action by a tenant against a landlord to recover for personal injuries alleged to have been caused by the giving way of a porch railing, thereby causing plaintiff to fall, evidence examined and held to show that the place at which the accident occurred was part of a common passageway for the use of the tenants, that he retained control over it, that the defect was not latent and that plaintiff was not guilty of contributory negligence.
    2. Landlord and tenant, § 230*—when tenant does not make improper use of porch railing. A tenant who, after stepping over a porch railing to a bench from an adjoining roof on which she had been standing to wash a window, takes hold of the railing in stepping down from the bench to the porch, was not guilty of making an improper use of the railing so as to prevent a recovery for injuries caused by a fall through the giving way of the railing as she was holding to it.
    3. Instructions, § 120*—when properly refused. Instructions not warranted by the evidence are properly refused.
    F. W. Jaros, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, game topic and section number.

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    J. H. Wall, Appellee, v. Italian Vineyard Company, Appellant.
    Gen. No. 23,217. (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 82

      —what evidence admissible to show probable earnings for balance .of term of employment of employee working on commission. In an action to recover damages for breach of a contract under which plaintiff was to be compensated by commissions on sales, evidence as to his earnings during the period he was retained in the employment and as to his average earnings during the busy months for the business may be used as a basis for determining his probable earnings during the remainder of the term of employment, and the probable earnings in the busy months of the fall, prior to which time he was discharged, may be computed from his earnings in the corresponding busy months of the spring, during which time he had worked.
    2. Master and servant, § 85*—when refusal of instruction in action for breach, of contract of employment not erroneous. In an action to recover damages for breach of a contract of employment, it is proper to refuse an instruction proffered by defendant that it is for the jury to determine what, under the evidence, was the reasonable value of plaintiff’s services to himself while in his own employ after the breach, where the only evidence is that plaintiff’s own venture was unprofitable.

      Appeal from the Municipal Court of Chicago; the Hon. Sheridan E, Fez, Judge, presiding.
    Heard in the Branch Appellate Court at the March term,, 1917.
    Affirmed.
    Opinion filed March 12, 1918.
    Statement of the Case.
    Action by J. H. Wall, plaintiff, against Italian Vineyard Company, defendant, to recover damages for breach of a contract of employment. From a judgment for plaintiff for $725, defendant appeals.
    Blum, Wolesohn & Blum, for appellant.
    Mater, Meter, Austrian & Platt, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

3. Master and servant, § 81 -—when burden on defendant in action by servant. for breach of contract of employment. In an action to recover damages for breach of a contract of employment, the burden is on defendant to show the value of plaintiff’s services to himself in a business undertaken by him after the breach as well as to show any other fact which might reduce plaintiff’s damages.


author: Mr. Presiding Justice

text:
    A. L. Jones Company, Appellee, v. Bowman Dairy Company, Appellant.
    Gen. No. 23,247. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John F. Haas, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed.
    Opinion filed March 12, 1918.
    Rehearing denied March 23, 1918.
    Statement of the Case.
    Action by A. L. Jones Company, a corporation, plaintiff, against Bowman Dairy Company, a corporation, defendant, to recover damages for a breach of contract. From a judgment for plaintiff, defendant appeals.
    Montgomery, Hart, Smith & Steere, for appellant.
    Oscar H. Olson, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice

Barnes delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and erbob, § 482 —when proposition of law unnecessary to raise question of sufficiency of evidence. No proposition of law is necessary to raise the question of the sufficiency of the evidence below to establish a custom, where the materiality of the evidence was objected to and there was a motion predicated on the insufficiency of the entire evidence.

2. Customs and usages, § 27*—when evidence insufficient to establish custom,. Where there is no testimony tending to show a general custom as claimed by plaintiff and his own witnesses testify that they know nothing of a custom with other dealers and that their conclusions are drawn from their own experiences, such evidence is insufficient to establish a custom.

3. Customs and usages, § 27*—what necessary to prove custom,., To establish a usage or custom, it is not sufficient to prove certain isolated instances, as the usage must be positively established as a fact, and not left to be drawn, as a matter of inference, from transactions.


text:
    In re Estate of William Schultz, Deceased. Caroline Urban, Administratrix, Appellant, v. John Mischkopski and Caroline Stuebner, Appellees.
    Gen. No. 23,253. (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Victob P. Arnold, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 12, 1918.
    Rehearing denied March 23, 1918.
    Statement of the Case.
    Objections by Caroline Stuebner to the report of Caroline Urban, administratrix of the estate of William Schultz, deceased, defendant, the question at issue being whether certain property came into the hands of the defendant as a gift to her from the intestate or as a part of his estate. From a judgment finding that the money belonged to the estate, defendant appeals.
    Abstract of the Decision.
    1. Executors and administrators, § 92

      —when Probate Court has jurisdiction without petition and citation. Where the question involved on an objection by one of the heirs to the report of an administratrix is whether certain property claimed by her came into her hands as a gift to her from the deceased or is a part of his estate, and she consents to a hearing without a petition and citation, the Probate Court has jurisdiction.
    2. Executors and administrators, § 97*—when burden on administratrix to show ownership of property. Where an administratrix claims that certain property came into her hands as a gift from the deceased and not as a part of the estate, the burden is on her to show by clear proof that the property was a gift.
    3. Executors and administrators, § 97*—when evidence insufjldent to show gift to administratrix. On a proceeding to determine whether certain property was in the hands of an administratrix as a gift to her, personally, from the deceased or had come into her possession as a part of the estate, evidence held insufficient to establish a gift.
    Bathje & Wesemahh, for appellant.
    Julius C. Greenbaum, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Eli Guggenheim, Appellee, v. City of Chicago and Herman F. Schuettler, Appellants.
    Gen. No. 23,378.
    1. « Theaters Aim shows, § 4

      —how immorality of moving picture may not be shown. The question, whether or not a moving picture is Immoral is not to he determined by expert testimony.
    2. Evidence, § 400*—when expert testimony inadmissible. Expert evidence is inadmissible to show what the average person is supposed to know.
    3. Theaters and shows, § 3*—when exhibition of moving picture properly refused by censor. If, in the exercise of sound discretion and with reasonable basis the censor deems a moving picture immoral, a refusal by him to permit its exhibition is proper.
    4. Theaters and shows, § 3*—when not shown that moving picture immoral. On a petition for mandamus to compel the issuance of a permit to exhibit a moving picture, evidence held sufficient to support a ruling of the censor that the picture was immoral.
    5. Theaters and shows, § 3*—how censor may judge as to immorality of moving picture. In determining whether or not a moving picture is immoral, the censor is not required to judge the picture as a whole rather than with regard to particular parts and scenes.
    6. Mandamus, § 6*—when writ may be obtained. One seeking a writ of mandamus must show a clear right thereto.
    7. Theaters and shows, § 3*—what is function of censor of moving pictures. The function of the censor of moving pictures is not ministerial, but is quasi judicial in character, calling for the exercise of sound discretion, with which the courts will not interfere except in a clear case.
    Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Reversed.
    Opinion filed March 12, 1918.
    Samuel A. Ettelson, for appellants; Chester E. Cleveland and Frank I). Ayers, of counsel.

      James J. Barbour and Edward H. S. Martin, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

The. petition filed herein sought a mandamus to compel respondent, the General Superintendent of Police of the City of Chicago, to grant a permit to ’exhibit a certain moving picture entitled “Sins of the Sons.” Issue was taken on the facts whether the picture was “immoral” within the meaning of the city ordinances regulating the exhibition of such pictures, and impliedly whether respondent abused the power vested in him of refusing a permit.

The trial was without a jury. The evidence consisted of a view of the picture as presented on a screen, and the testimony of witnesses describing some of its phases and expressing their individual opinions as to whether it was immoral. These opinions were conflicting. At the close of the evidence the court found for petitioner, and the controlling questions argued relate to the sufficiency of the evidence to sustain the judgment.

The films were received as exhibits in the case and have been projected on a screen for our inspection. We concur in the view that they constitute the best evidence, and that little, if anything, can be added by oral testimony to what they portray.

We do not, however, regard the question whether they are “immoral” as one to be determined by expert testimony. As said in Block v. City of Chicago, 239 Ill. 251, 264: “The average person of healthy and wholesome mind knows well enough what the words ‘immoral’ and ‘obscene’ mean and can intelligently apply the test to any picture presented to him.” Expert evidence is inadmissible to show what the average person is supposed to know. The censor was required, and the court also, in this case, to determine from the picture itself whether it is immoral. If in the exercise of sound discretion the censor so deemed it, then unquestionably it was his right and duty to reject the application for a permit. The fact that the witnesses entertained different views as to the immoral character of the picture, or parts, of it, indicates that there was room for a difference of opinion on the subject, and the mere fact that the court took one view does not justify the conclusion that the respondent abused his power in taking another. If there is a reasonable basis for the censor’s opinion, then a refusal of the permit based thereon could not be deemed an abuse of power, and the picture unquestionably presents ground for such an opinion.

One of its scenes, much dwelt upon in the evidence, shows the introduction of an innocent boy into a house of prostitution and vividly portrays the triumph of its evil suggestions, a scene better calculated to appeal to the prurient and degenerate than to illuminate the moral purposes of the play, and one that may well be deemed harmful in influence when presented to mixed audiences. Appellee argues that none of its features is incompatible with such a scene in a reputable place. The scene required no label. It so fits into the story of the play that the ordinary observer would not mistake the place or its part in the story.

The court’s rulings were to the effect that the pic ture must be judged as a whole and not as to any particular part or scene. If this were the proper test for decision then censorship would be of little avail. For with such limitation, no matter how laudable might be the underlying motive of the play, scenes could be introduced with impunity for other purposes than to point its moral or emphasize its lessons.

Petitioner did not show a clear right to the writ, as in such a case he wás bound to do. (People v. Busse, 248 Ill. 11.) We do not agree with appellee’s contention that the duty of determining whether a picture complies with the requirements of the ordinances before issuing a permit for its exhibition is a mere ministerial one. The function of censorship is quasi judicial in character, calling for the exercise of sound discretion, with which the courts will not ordinarily interfere except in a clear case. (Spelling on Inj. & Extra. Rem., vol. 2, sec. 1476; High on Extra. Legal Rem. (3rd Ed.), sec. 327; 26 Cyc. pp. 158-161; 19 Am. & Eng. Encyc. of Law, p. 821; Block v. City of Chicago, 239 Ill. 251; People v. Webb, 256 Ill. 364.) The evidence does not show such abuse, and for that reason alone, regardless of any difference of views as to whether the picture is immoral, the judgment cannot stand.

We need not dwell on the point made that respondent did not pass on the picture in its present shape. The evidence indicates that changes were made after successive refusals of a permit and that the refusals were based mainly on the scene referred to, so that another inspection was unnecessary with knowledge of the fact that said scene had not been eliminated. Besides, the writ is not sought to compel respondent to inspect the picture but t'o grant a permit for its exhibition on the theory that it was improperly refused after inspection.

Reversed.


text:
    The People of the State of Illinois ex rel. Fox Film Corporation, Appellee, v. City of Chicago and Herman F. Schuettler, Appellants.
    Gen. No. 23,475. (Not to be reported in full.)
    Abstract of the Decision.
    1. Theaters and shows, § 4

      —when question of immorality of moving picture and .its tendencies is for jury. On a petition for a writ of mandamus to compel the issuance of a permit to exhibit a moving picture where the picture was, by agreement, exhibited to the court and jury and the court stated that such exhibition made a prima facie case for the petitioner and thereupon the censor described phases of the picture and testified that the refusal to issue the permit, was on the ground that the picture was immoral and tended to produce an immoral effect upon the children, and the plot of the film and several of its scenes are more fully described by others connected with the censorship as presenting murder, robbery and other incidents to the immoral purposes of an unchaste woman, the question of the immorality of the picture and its tendencies is for the jury.

      Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and remanded.
    Opinion filed March 12, 1918.
    Rehearing denied March 23, 1918.
    Statement of the Case.
    Petition by the People of the State of Illinois, on the relation of Fox Film. Corporation, petitioner, against City of Chicago and Herman F. Sehnettler, General Superintendent of Police of the City of Chicago, respondents, to compel the issuance of a permit to the relator to exhibit a moving picture. From a judgment for petitioner, respondents appeal.
    Samuel A. Ettelson, for appellants; Chester E. Cleveland and Frank D. Ayers, of counsel.
    Charles P. Schwartz and Herbert J. Friedman, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

2. Theaters and shows—what considered on review in passing on refusal of permit for exhibition of moving picture by censor. The Appellate Court, in passing upon the censor’s refusal to issue a permit for the exhibition of a moving picture, does not pass only on the question whether the picture was immoral or had a harmful tendency, hut also whether the refusal was an abuse of the censor’s official power.

3. Theaters and shows, § 3 —what is function of censor of moving pictures. The nature of the duties of a moving picture' censor in passing upon the suitability of a picture for exhibition calls for an exercise of official discretion which will not be interfered with unless abused.

4. Theaters and shows, § 4*—when jury must find that there was an abuse of power of censor in refusing permit for moving picture. When, on a petition for the issuance of a writ of mandamus to compel a moving picture censor to issue a permit for the exhibition of a picture, the evidence affords a basis for a diversity of opinion as to the harmful tendency of the picturé, not only must the case he submitted to the jury on the question of fact so presented, hut before they can find for the petitioner they must also he able to say from the evidence that there was an abuse of power in refusing the permit.-

5. Theaters and shows—what may be reviewed on appeal in proceedings to compel issuance by censor of permit for moving picture film. On an appeal from a judgment directing a verdict for the petitioner seeking a writ of mandamus to compel the issuance by a moving - picture censor of a permit to exhibit a film, where there was no direct evidence of an abuse of power by the censor and the film, though made an exhibit, is not annexed to the record nor certified to the Appellate Court, that court cannot pass on the sufficiency of the evidence, but may, nevertheless determine whether there was any evidence tending to support the answer.

6. Mandamus—when verdict should be directed for petitioner. On a petition for a writ of mandamus, where there is evidence tending to support the respondent’s answer, a verdict cannot he directed for the petitioner.


text:
    The People of the State of Illinois ex rel. Walter Konzack, Appellee, v. Herman F. Schuettler, Appellant.
    Gen. No. 23,497.
    1. Theaters and shows—when moving picture film may be exhibited before Appellate Court. On a petition for a writ of mandamus to compel the issuance of a permit to exhibit a moving picture film, where the only evidence adduced below was the presentation of the film and the film is made an exhibit and is, on appeal, certified to the Appellate Court, it may, at the request of the parties, be exhibited before that court.
    2. Theatebs and shows, § 4

      —when proper to direct verdict for petitioner in proceedings to compel issuance of permit for exhibition of moving picture film. On a petition for a writ of mandamus to compel the issuance of a permit for the exhibition of a film, only where, from the inspection of the film alone, which is presented before the jury, it can be said that there is nothing in the picture tending to support the defense that it is immoral and that the refusal of the permit was not an abuse of discretion, is it proper to direct a verdict for the petitioner on the ground that the question presented by the inspection is one of law and not for the jury.
    3. Theaters and shows, § 4*—when question whether moving picture film is immoral is for jury. The question whether a moving picture film which suggests and encourages the use of certain means of preventing conception is immoral is for the jury.
    4. Theaters and shows, § 3*—what is function of censor in deciding whether exhibition of moving picture shall be allowed. The law does not contemplate a transfer of a moving picture censor’s function to a court and jury, on a petition for a writ of mandamus to compel him to issue a permit for the exhibition of a moving picture, or that they shall sit in judgment on the exercise of his power, unless it is arbitrarily or capriciously exercised, his duties being quasi judicial in their nature and requiring the exercise of a sound discretion.
    5. Theaters and shows, § 4*-—when error to direct verdict for petitioner in proceedings to compel issuance by censor of permit for moving picture film. On a petition for a writ of mandamus to compel the issuance of a permit for the exhibition of a moving picture film, where there is no evidence of an abuse of discretion but the only evidence adduced before the jury is a presentation of the film and the film is of such a character that different views may be reasonably entertained as to its moral effect, it is error to direct a verdict for the petitioner.
    Appeal- from the Superior Court of Cook county; the Hon. Joseph B. David, Judge," presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Reversed.
    Opinion filed March 12, 1918.
    Samuel A. Ettelson, for appellant; Chester E. Cleveland and Frank D. Ayers, of counsel.
    No appearance for appellee.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

The petition filed herein sought a mandamus to compel respondent, the General Superintendent of Police of the City of Chicago, to grant a permit to exhibit a certain moving picture called “Margaret Sanger in Birth Control.”

The main averments on which issue was taken, or that need be considered, were to the effect that the picture was not “immoral,” or otherwise such as makes it the duty of respondent under the city ordinance to refuse a permit, and that his refusal of the same was an abuse of the power vested in him under the ordinance.

The only evidence adduced was the presentation of the moving film on a screen in the presence of the court and jury. The film so presented was made an exhibit and has been certified to this court, and at the request of both parties it has been reproduced on a screen before us, as, we think, may properly be done.

The court directed °a verdict for petitioner, saying that such inspection presented a question of law for the court and not one of fact for the jury. If from such inspection alone it can be said that there is nothing in the picture tending to support the defense that it is “immoral,” and that respondent did not abuse his power in refusing a permit, the court was right, otherwise it committed error in directing such verdict. No authorities need be cited on that proposition.

But from our inspection of the picture we 'cannot agree with the conclusion that it presented nothing for the jury to consider. The picture may be sufficiently described as one suggesting and encouraging the use of certain means of preventing conception. The very nature of the subject, therefore, furnished grounds for another view than that.taken by the trial judge. While a picture may be so innocuous as- to present no latitude for discretion in refusing a permit to exhibit it, this picture cannot reasonably be said to be one of that kind. To say the least its subject affords ample room for a different opinion as to its tendency to corrupt morals. Whatever views might be entertained as to its moral effect on other audiences, it requires no argument to show that its suggestions to one, including the young and unmarried, might lead to immoral- conditions.

Prom the court’s remarks to the jury it is apparent he misapprehended the real nature of the issues. The pleadings presented two questions of fact: (1) Whether the picture was “immoral,” and, if there could reasonably be different views thereon; (2) whether there was an abuse of power in refusing a permit. Even though a jury might decide that, acting as a censor, they woud grant a permit, it would not follow, so long as there is latitude for exercise of a sound discretion, that the act of refusal would be arbitrary or capricious. The law does not contemplate a transfer of the censor’s function to a court and jury, or that they shall sit in judgment on the exercise of his power unless it is arbitrarily or capriciously exercised. His duties are quasi judicial in their nature, requiring the exercise of a sound discretion, with which courts will not generally interfere except in a case of abuse. (See Spelling on Inj. & Extra Rem., vol. 2, sec. 1476, and authorities there cited; High on Extra. Legal Rem. (3rd Ed.), sec. 327; 26 Cyc. pp. 158-161.)

It was error, therefore, to direct a verdict for petitioner. But one might properly have been directed for respondent, as there was no proof whatever that he abused his power,. The film, which constituted the entire evidence, had no tendency in itself to present any such proof, it appearing therefrom, as we have above stated, that different views might reasonably be entertained with regard to its moral effects, thus calling for the exercise of his discretion. Without any proof whatever, therefore, of respondent’s abuse of the power vested in him—an essential element of the cause of action—a judgment for petitioner can in no event stand. Accordingly it will be reversed.

Reversed.


text:
    Vitagraph Company of America, Appellee, v. City of Chicago and Herman F. Schuettler, Appellants.
    Gen. No. 23,972.
    1. Theaters and shows, § 4

      —what damages not recoverable for interference with exhibition of moving picture film. As no bond can be required of a city or its officers on an appeal from a judgment granting a writ of mandamus to compel the issuance of a permit to exhibit a moving picture film, the damages resulting from interference with the exhibition until the final adjudication of the appeal are irrecoverable.
    2. Appeai. and error, § 707*—when appeal operates as supersedeas. An appeal by a city from a judgment granting a writ of mandamus to compel the issue of a permit to .exhibit a moving picture film operates as a supersedeas.

    3. Theaters and shows, § 3

      —when refusal of permit not denial of property right. The refusal of a city to issue a permit to exhibit a moving picture film does not constitute a deprival of a* personal or property right, as the business is one subject to police regulation.

      4. Theaters and shows, § 4*—when interference with exhibition of moving picture film mil not be enjoined. Injunction will not be granted to restrain a city and its officers from interfering with the exhibition of a moving picture film pending the final adjudication of an appeal which has been taken by the city from a judgment granting a writ of mandamus to compel its officers to issue a permit for the exhibition, as complainant’s rights may be adequately ascertained in the mandamus proceeding.
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding.
    Heard in the Branch Appellate Court.
    Reversed.
    Opinion filed March 12, 1918.
    Rehearing denied March 23, 1918.
    Samuel A. Ettelson, for appellants; Chester E. Cleveland and Frank D. Ayers, of counsel.
    Lewis F. Jacobson, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This appeal is from an interlocutory order restraining the City of Chicago, Herman F. Schuettler, its General Superintendent of Police, their attorneys, agents, etc., from in any way interfering with the exhibition in said city of appellee’s photoplay “Within the Law,” until the final adjudication of an appeal from a judgment in a mandamus proceeding awarding the writ to compel the issuance of a permit for such exhibition.

The right to such relief is based upon the claim of irreparable injury. The substance of the claim is that unless appellee is given an immediate right to such exhibition following the publicity given to the spoken play and the advertising of said photoplay, the opportune time for its exhibition will pass, resulting in a loss of large anticipated profits and the benefit of expenses already incurred. From the averments of the sworn bill this may perhaps be conceded, and as no bond could be required of the city or its officers on such appeal, losses so sustained would be irrecoverable.

But as said in Rees v. City of Watertown, 19 Wall. (U. S.) 107, 124, discussing mandamus: “The remedy is in law and in theory adequate and perfect. The difficulty is in its execution only. The want of a remedy and the inability to obtain the fruits of a remedy are quite distinct.” The remedy of mandamus was held adequate in two cases somewhat similar to this, Klinesmith v. Harrison, 18 Ill. App. 467, upon a bill to restrain the mayor and police officers from attempting to enforce against the complainant certain ordinances prohibiting' him from carrying on the business of an auctioneer without a license, and City of Chicago v. O’Hare, 124 Ill. App. 290, where the lower court had restrained the city’s officers from interfering with the keeping of a dramshop for which a license had been refused. The court in the latter case said, citing various authorities, that if the complainant had brought himself within the provisions of the ordinance so that the right to a license was not doubtful and appellant had still refused him a license, the remedy by mandamus was open to him.

Complainant here resorted to such remedy and obtained the writ. The city or its proper officer, exercising an unquestioned right, appealed. It is conceded such appeal operated as a supersedeas. Manifestly, to avoid its consequence, this proceeding was instituted for the injunctive relief given which operates to nullify the effect of the supersedeas and to prevent an enforcement of the city’s ordinances against appellee.

Should the city be upheld in refusing the permit the result of the injunction would be to permit an unlawful conduct of the. business in the meantime.

We think the fundamental error in the theory of the bill is that the refusal of the license or permit deprived complainant of a personal or property right. The business is conceded to be one subject to police regulation. In such a case “the refusal to license deprives no man of any personal or property right, but merely deprives him of a privilege which it is within the discretion of the municipal authorities to grant or withhold.” (People v. Cregier, 138 Ill. 401, 419.) Whether the discretion in that regard was abused was apparently the question in the mandamus proceeding. The delay incident to its final adjudication does not, however, disturb any property or personal ri^’ht of appellee. The case does not come within that class referred to in appellee’s brief where an injunction will issue to preserve existing conditions as to property rights theretofore asserted or enjoyed, during the pendency of litigation with respect thereto. This is not a proceeding to prevent the city or its officers from taking any affirmative or unauthorized or wrongful action to deprive appellee of a right it had previously asserted or enjoyed. On the contrary, it is one having the effect of conferring upon appellee the exercise of a privilege to which it is not entitled without an official permit. Whether the permit is wrongfully withheld is the subject of a pending proceeding at law entirely adequate to determine appellee’s right thereto. We do not think the bill presents a case for equitable relief.

Reversed.


text:
    Vitagraph Company of America, Appellee, v. Herman F. Schuettler, Appellant.
    Gen. No. 28,561. (Not to be reported in full.)
    Abstract of the Decision.
    1. Mandamus, § 150

      —when petition for writ of to compel issuance of permit to exhidit photoplay is sufficient as against general demurrer. A petition for a writ of mandamus to compel the issue hy a city officer of a permit to exhibit a photoplay which sufficiently sets forth hy appropriate averments facts tending to show that the photoplay, as represented by the film, conforms to and does not in any way conflict with the requirements of the city ordinances, and that a permit was arbitrarily refused, is good as against a general demurrer, even though it contains surplusage.

      Appeal from the Circuit Court of Cook county; the Hon. Robert E. Crowe, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Affirmed.
    Opinion filed March 12, 1918.
    Statement of the Case.
    Petition by Vitagraph Company of America, a corporation, petitioner, against Herman F. Schuettler, General Superintendent of Police of the City of Chicago, defendant, for mandamus to compel the issue of a permit for the exhibition of a photoplay. From a judgment overruling a general demurrer to the petition, defendant appeals.
    Samuel A. Ettelson, for appellant; Chester E. Cleveland, George Kandlik, and Roy S. Gaskell, of counsel.
    Benjamin F. Rioholson and Lewis F. Jacobson, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number. ‘

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

2. Mandamus—u>hat not proper practice as to time for passing upon motion for appeal from judgment granting > writ. On a petition for a writ of mandamus, it is not in accordance with practice or the spirit of the law for the court to defer passing upon a duly-presented motion for appeal from a judgment granting the writ until after the writ has issued.


text:
    Epoch Producing Corporation, Appellee, v. City of Chicago and Herman F. Schuettler, Appellants.
    Gen. No. 23,954. (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding.
    Heard in the Branch Appellate Court at the June term, 1917.
    Reversed and remanded.
    Opinion filed March 12, 1918.
    Statement of the Case.
    Petition by Epoch Producing Corporation, petitioner, against City of Chicago and Herman F. Schuettler, General Superintendent of Police of the City of Chicago, defendants, for a writ of mandamus to compel the issuance of a permit to exhibit a photo-play. From a judgment for petitioner, defendants appeal.
    Samuel A. Ettelson, for appellants; Chester E. Cleveland and Frank D. Ayers, of counsel.
    Charles J. Trainor, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Theaters and shows, § 4 —what are requisites of petition for writ of mandamus to compel issuance of permit to exhibit photo-play. To entitle a petitioner to a writ of mandamus to compel the issuance of a permit to exhibit a photoplay, it is merely necessary to aver facts to show that the photoplay met every requisite of the ordinance under which the license was sought and that the license was arbitrarily or capriciously refused.

2. Mandamus, § 190*—when judgment reversed. Where the trial court has disregarded the material issues of fact in mandamus proceedings, the judgment will be reversed.


text:
    The People of the State of Illinois, Defendant in Error, v. Frank Kasker, Plaintiff in Error.
    Gen. No. 23,517. (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Bernard P. Barasa, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1917.
    Reversed and remanded.
    Opinion filed March 12, 1918.
    Statement of the Case.
    Information by the People of the State of Illinois, plaintiff, against Frank Kasker, defendant, charging defendant with unlawfully driving an automobile upon a street in the absence of the owner of the automobile and without his consent, in violation of Rev. St. ch. 121, sec. 2690 (J. & A. ¶ 10015). To reverse a judgment finding him guilty, defendant prosecutes this writ of error.
    O. J. C. Wray and William A. Gordon, for plaintiff in error.

      Abstract of the Decision.
    1. Automobiles and garages, § 1

      —when information charging use of motor vehicle without owner’s consent is insufficient. An information which charges a violation of Rev. St. ch. 121, sec. 2690 (J. & A. 1[ 10015), prohibiting the use of a motor vehicle on a street in the absence of the owner and without his consent, is insufficient where it fails to allege the ownership of the vehicle.
    2. Indictment and information, § 39*—when name of person injured must be stated. In indictments and informations for offenses against persons or property, the name of the person injured must be stated to enable defendant to plead either a former acquittal or conviction.
    3. Criminal law, § 409*—when question not clearly shown by record to have been raised below may be raised on writ of error. Even though the record does not show that the question that an information charging a violation of Rev. St. ch. 121, sec. 2690 (J. & A. If 10015), was insufficient for failure to allege ownership of the vehicle was directly raised in the court below, the question may he raised on a writ of error when it appears from the face of the record that the judgment cannot possibly stand.
    4. Criminal law, § 599*-—when case remanded for amendment of information. Where plaintiff in error did not question the sufficiency of the information below, in which the defect could have been remedied by amendment, the cause should be remanded for opportunity to amend.
    5. Criminal law, § 497*—what presumed in absence of bill of exceptions. On a writ of error to reverse a judgment of guilty as charged in an information, it may be presumed, in the absence of a bill of exceptions, that plaintiff in error was guilty of the offense charged.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mr. Justice McDonald

text:
    Philip S. Craig, Appellant, v. Yazoo & Mississippi Valley Railway Company, Appellee.
    Gen. No. 22,813. (Not to be reported in full.)
    Abstract of the Decision.
    1. Railboads, § 921

      —when exclusion of foreign statute in action for negligence in operation causing fire is error. The exclusion of a statute of a foreign State limiting the speed of railroad trains through cities, towns and villages, and providing that the railroad company shall be liable for damages or injuries sustained by any one from such trains while they are running in excess of the prescribed limit, held, to be reversible error, in an action to recover damages alleged to have been caused by defendant’s negligence in the operation of its train through a town in the foreign State, causing the burning of plaintiff’s cotton in a cotton compress, where the Supreme Court of the foreign State holds that a violation of the statute is negligence per se and that the statute applies to all manner of damage caused by such violation.

      . Appeal from the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed March 12, 1918.
    Statement of the Case.
    Action by Philip S. Craig, as surviving partner of W. C. Craig & Company, plaintiff, against Yazoo & Mississippi Valley Railway Company, a corporation, defendant, to recover for the wrongful burning of a quantity of cotton. From a judgment for defendant, plaintiff appeals.
    Sibber, Isaacs, Sibber & Worey of Chicago, Ill., and Lewis, Adrer & Laws, of Philadelphia, Pa., for appellant; Frederick D. Sibber and Frahcis S. Laws, of counsel.
    ' Verhon W. Foster of Chicago, Ill., and C. L. Sivrey, of Memphis, Tenn., for appellee; Brewett Lee, of Chicago, Ill., and C. N. Burch, of Memphis, Tenn., of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vole. XJ to Xy, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McDonald

delivered the opinion of the court.

2. Railboads—what is matter of defense in action for negligent violation of speed statute, causing turning of cotton. Where a statute, after limiting the speed of railroad trains through cities, towns and villages, and providing that the railroad company should be liable for damages or injuries sustained by any one from such trains while they are running 'in excess of the prescribed ' limit, provided further, in the next succeeding sentence, that the railroad commission of the State should have power to fix and prescribe a greater limit for such trains, and that when it should have done so as to any city, town or village, the statute should not thereafter apply to the operation of trains within the same, held, that the matter of such withdrawal by the commission of any city, town or village from the operation of the statute was matter of defense, in an action to recover damages for negligence in operation causing the burning of cotton, based upon the statute, and plaintiff would not be obliged to negative same in his declaration.

3. Conflict of laws, § 5 -—when rule that courts will not enforce penal laws of foreign State is inapplicatle. The rule that the courts of one State will not enforce the penal laws of another State has no application to an action brought in one State to recover damages incurred under the laws of another State for violation of a statute of the latter State limiting the speed of railroad trains and providing that the railroad company should be liable for damages or injuries caused by such violation.

' 4. Railboads, § 921*—when evidence of rule and custom as to shutting off steam when passing platforms and trains with exposed cotton thereon is inadmissitle. Evidence of a rule of defendant railroad company and of a custom of defendant’s employees following the rule to shut off steam from defendant’s engines when passing loading platforms or trains with exposed cotton thereon, held properly excluded where the evidence showed there was no exposed cotton on the loading platform and no passing train at the time and place in question, in an action to recover damages for the burning of plaintiff’s cotton.


text:
    The People of the State of Illinois ex rel. Harry B. Staver, Appellant, v. Elgin Motor Car Corporation and Olga Alvin, Appellee.
    Gen. No. 23,145.
    1. Corporations, § 156

      —when assignor of stock is proper party to proceedings against corporation to compel transfer of' shares on hooks. On a petition for a writ of mandamus to compel a corporation to transfer on its books shares of stock standing in the name of a third person, where such third person, who is also made a defendant, files pleas alleging want, failure and illegality of consideration for the alleged assignment of the stock by her to the petitioner, the legality of the assignment is in issue, the determination of which issue governs the rights of the respective claimants, and the claim of such third person involves an interest in the subject-matter of the suit and makes her a proper and necessary party within the meaning of Rev. St. ch. 87, sec. 7 (J. & A. j[ 7336).
    2. Mandamus, § 6*—lohat petitioner must show. To entitle a petitioner to a writ of mandamus, he must show a clear right thereto.
    3. Corporations, § 156*—when justified in refusing to transfer stock on hooks and issue new certificate. A corporation is justified in refusing to transfer stock on its books and issue a new certificate where the person in whose name it stands sets up a conflicting claim thereto and that there was want, failure and illegality of consideration for the assignment by her, and in such a case a writ of mandamus to compel the transfer should not be granted.
    Appeal from the Superior Court of Cook county; the Hon. Joseph Sabath, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 12, 1918.
    Bulkley, More & Tallmadge, for appellant.
    0’Shaughnessy & O’Shaughnessy, for appellee Elgin Motor Car Corporation.
    Thomas F. Donovan and Kraus, Holden & Lawless, for appellee Olga Alvin.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McDonald

delivered the opinion of the court.

By this appeal it is sought to reverse the action of the court in dismissing’ a petition for a writ of mandamus.

The petition recited that the Elgin Motor Car Corporation, one of the defendants below, was organized and existing under and by virtue of the laws of the State of Delaware; that its principal place of business was in Cook county, Illinois, etc.; that its capital stock was transferable only on the books of the corporation by the holders thereof in person or by attorney upon the surrender of the certificate therefor, properly indorsed.

It recited further that practically all of defendant’s business was transacted in Cook county, Illinois; that its stock book was kept there, and that the officers whose duty it was to make the stock transfers and sign the certificates resided in said county; that the said corporation was, to all intents and purposes, an Illinois corporation.

The petition further averred that on the 2nd day of June, 1916, Olga Alvin was the owner of 500 shares of the capital stock of the defendant, fully paid and nonassessable, the same being evidenced by one certificate issued to the said Olga Alvin by the defendant in accordance with its by-laws; that on said date the said Olga Alvin,.for good and valuable consideration, assigned, transferred and delivered the said certificate, duly indorsed, to the petitioner, together with the assignment thereof and a power of attorney appearing on the back of said certificate, thereby assigning said shares to the petitioner and irrevocably constituting and appointing him attorney in fact for the purpose of transferring said shares to him upon the books of defendant; that the petitioner tendered to the defendant the said certificate assigned to him as aforesaid, and then and there demanded that the said defendant transfer the said stock on its books and issue to him a new certificate for the said 500 shares ; that the defendant refused to allow said transfer of said shares, or to issue a new certificate to the petitioner.

The petition prayed that a writ of mandamus issue against the said defendant, commanding it forthwith to transfer on its books the said capital stock then standing in the name of the said Olga Alvin.

The answer filed by the said defendant, the Elgin Motor Car Corporation, admitted that at the time in question the said capital stock stood in the name of the said Olga Alvin on its books; that the petitioner had tendered the said stock certificate duly assigned and demanded a transfer thereof on its books and a new certificate for said 500 shares in the name of the petitioner, and that it had refused to comply with his demand; that it had been served with notice by the said Olga Alvin not to transfer said stock to the petitioner, as she claimed to be the legal owner thereof. It recited further that the said defendant had no interest in the matter and that its refusal to comply with petitioner’s aforesaid demand was based upon its receipt of the notice from the said Olga Alvin not to do so.

The said Olga Alvin, who was also made a party defendant, filed certain pleas alleging want, failure and illegality of consideration for the alleged assignment of the said stock by her to the petitioner. •

To the Danswer filed by the defendant, the Elgin Motor Car Corporation, and the pleas interposed by the defendant, Olga Alvin, the petitioner demurred, but the court overruled said demurrers. The petitioner thereupon obtained leave to reply to the defendant company’s answer, and elected to stand by his demurrers to the pleas of defendant, Olga Alvin. Afterwards, upon motion of both defendants," the court dismissed the petition. Prior thereto, a motion was entered by the petitioner seeking the dismissal of defendant, Olga Alvin, out of the case, which was denied by the court; and the action of the court in so doing is assigned as error.

Section 7 of the Mandamus Act, ch. 87, Rev. St. Ill. (J. & A. ¶ 7336), provides as follows:‘

“If after the filing of any such petition, any person other than the original defendant shall appear to the court to have or claim any right or interest in the subject-matter, such person may be made a defendant, and may be summoned, and appear and plead, answer and demur in the same manner as if he had been made defendant to the original petition. ’ ’

The averments of the three special pleas filed by Olga Alvin, if true, constituted a defense at law and were sufficient to invalidate the assignment of the said stock to the petitioner. The legality of the assignment having been thus put in issue, and the rights of the claimants of this stock being governed by the determination of that issue, it follows that the claim of Olga Alvin involved an interest in the subject-matter of the suit and that she was a proper and necessary party to the proceeding, within the meaning of the statute. People v. O’Connell, 252 Ill. 304.

The next question presented is, whether or not a corporation or its officers can be compelled to make a transfer of stock on its books to the assignee thereof, where disputed claims of ownership have arisen. It is a well-established and familiar rule that to entitle a party to the writ, he must show a clear legal right thereto. In the instant case, defendant’s* refusal to transfer this stock on its books and to issue a new stock certificate to the petitioner was based upon the fact that it had been duly served with notice by the defendant, Olga Alvin, that she claimed to be the owner of the said stock.

In Spangenberg v. Nesbitt, 22 Cal. App. 274, 134 Pac. 343, a similar question arose, under a somewhat analogous state of facts, and the court, in disposing of it, laid down the following rule, p. 345:

‘ ‘ Generally speaking, the officers of a corporation may rightfully refuse, for the time being, a requested registry of stock, when notified to do so by a third person, who claims some interest in the stock, which might be lost or injuriously affected by the transfer * * *; and, in the presence of such conflicting claims, it is the privilege and the duty of the corporation or its officers, if there be a reasonable doubt as to the respective rights of the contending claimants, to refuse, or rather delay, registry to either party until the lapse of a reasonable time, within which the merits of the controversy may be determined by an independent investigation of the corporation, or, if necessary, by the institution of appropriate proceedings in the courts. The law, however, does not require or permit the officers of a corporation to assume the functions of a court of justice, and by their decision forever conclude the rights of the contending claimants.”

To the same effect is the case of Mundt v. Commercial Nat. Bank of Ogden, 35 Utah 90, 99 Pac. 454.

So in the case at bar defendant was not obliged to act at its peril and determine the conflicting claims arising as to the ownership of the. said stock, but under the circumstances was justified in refusing a transfer thereof.

Our conclusion is that the said Olga Alvin was a necessary party to the proceeding and that the court properly overruled the petitioner’s motion to dismiss her as such; that the petitioner has failed to bring himself within the rule entitling him to the writ of mandamus, and that hence his petition was properly dismissed. Accordingly the judgment will be affirmed.

Affirmed.