author: Mr. Presiding Justice Denis E. Sullivan

text:
    Ann E. Smithers, Appellee, v. Russell Henriquez, Appellant.
    Gen. No. 38,070.

      Opinion filed November 4, 1936.
    Sims & Stransky, of Chicago, for appellant; Franklin J. Stransky and James P. Carey, Jr., of counsel.
    Finn & Miller, of Chicago, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This is an appeal from a judgment entered in the circuit court against the defendant and in favor of plaintiff for the sum of $7,500 for injuries sustained on May 10, 1931, as the result of a collision between two automobiles, one of which was in the possession of and being driven by the defendant, the other automobile being in the possession of and being' driven by the husband of the plaintiff. The collision occurred at or about the intersection of Harlem avenue and Higgins road in Chicago, Illinois.

Plaintiff’s amended declaration consisted of three counts, the first of which charged defendant with having negligently operated his automobile at the time of the accident, resulting in injury to plaintiff and that plaintiff was in the exercise of due care for her own safety. The second count charged defendant with having negligently operated his automobile in backing said automobile in a northwesterly direction from Higgins road on to Harlem avenue. The third count charged the defendant with not having a red rear light on his automobile in violation of the statute of the State of Illinois.

The evidence offered by plaintiff tends to show that at the time of the accident she was riding in the front seat of a Dodge automobile which was being driven by her husband in a northerly direction on Harlem avenue at about 2:30 o’clock in the morning. Plaintiff had accompanied her husband who was a musician and had been playing in an orchestra at a dance, and they were on their way home with two other persons in their car when the accident occurred. When the automobile in which plaintiff was riding approached the intersection of Harlem avenue with Higgins road and they were about 35 feet south of that intersection, they slowed down at the traffic sign which was on the corner. The defendant, who was driving a Buick automobile and who had shortly before passed them on Harlem avenue at a high rate of speed and who had turned from Harlem avenue east on to Higgins road, on finding that the latter street was under repair with obstructions having been placed thereon, which were lighted with smudge pot lights, preventing him from progressing further, endeavored to get back on to Harlem avenue and, in doing so, suddenly backed his automobile, which was without .a rear light, around the southeast corner of Harlem avenue and Higgins road and crashed into the plaintiff’s automobile before he could avoid it, thereby throwing plaintiff from her seat in the automobile and against the dash board of. their car breaking her nose and her jaw and lacerating her face and mouth, resulting in the loss of several teeth and caused other serious injuries as a consequence. The evidence further shows that plaintiff screamed as she saw defendant’s car backing into their automobile.

On behalf of defendant it is contended that he had been attending a party at a friend’s house and was returning home in company with a young lady who was seated beside him in the front seat of an automobile which he was driving north on Harlem avenue; that when he reached the intersection of Harlem avenue and Higgins road, he stopped his automobile at the southerly line of Higgins road and before he had a chance to proceed north, he was crashed into from the rear by the automobile occupied by the plaintiff and pushed by the force of the impact into the intersection with Higgins road.

The evidence shows that before the accident, on their way home, the plaintiff, her husband and their friends stopped at a barbecue stand and got some sandwiches and later stopped and bought some ice cream which they intended to take home. Plaintiff’s husband testified that on the night of the accident he had intended to turn left at Higgins road in order to reach the home of one of the parties in his automobile.

The evidence further shows that at the party attended hv the defendant and his lady companion, various kinds of liquor were served, and the defendant testified that he had had two glasses of beer. The lady who accompanied him testified that she did not know whether he had had any more liquor or not.

As is usual in cases of this kind, the evidence is conflicting. The lady riding with the defendant testified that when the collision occurred the car they were riding in was on the east lane of the road and that the right rear of the car was struck and the right fender was damaged, which, of course, would place plaintiff’s automobile east of the pavement entirely. She also testified that Hlavacek, a witness for defendant, at the time of the accident was north of the northwest corner of Harlem avenue and Higgins road some 300 feet away and that he shifted into first gear and was going ahead. This, she testified to having seen, although the night was concededly dark.

The evidence regarding the rear light on defendant’s automobile is also controverted. All the witnesses riding with the plaintiff testified that when defendant’s automobile passed them a mile or two south of Higgins road, it was going at a high rate of speed and they remarked that the tail light was not lighted. The defendant and some witnesses in his behalf testified that the tail lamp was lighted.

As to the obstruction on Higgins road, a witness for the plaintiff testified that an obstruction was there. Some of the witnesses went to view the scene of the accident on the following day and they stated that the obstruction was still there. The witnesses who testified on behalf of defendant, including a former employee of the highway department, stated there was no obstruction on Higgins road. The employee for the highway department, however, stated that so far as he could remember there was no obstruction there, but that the records in the office of the highway commissioner would show whether permits had been issued to close that street pending the doing of the work, but the records were not produced.

One of the main contentions made by the defendant as to the errors committed by the trial court, was with reference to the examination of the jurors on their voir dire.

On May 8,1934, prior to the trial of this cause plaintiff filed an affidavit in which in substance it was stated that she had been informed that the suit was being defended by the American Insurance Company of Boston, Massachusetts and that, said company was, therefore, vitally interested in said cause and that she had been informed that the attorney who was actively defending the case was representing the insurance company in the matter and asked the court to permit counsel for plaintiff in the examination of jurors on their voir dire to question the prospective jurors as to their financial interest, if any, in the above company, or, otherwise, her interests would be prejudiced.

It is admitted in the record that the counsel representing the defendant is employed by the insurance company for the purpose of defending the suit.

When the jurors were being examined counsel for plaintiff asked the following question of the entire jury:

“Q. Now I would like to ask this question of you and all of the jurors as a whole. Are you, Mr. Long, or any of you gentlemen, interested financially either as stockholders or otherwise, in the1 American Employers Insurance Company?”

The filing of the affidavit and the proceedings in relation thereto took place out of the presence and hearing of the jury. The defendant objected, asking that the jury panel be discharged for the reason that the jury had been asked the question which we have quoted above, and further stated that that question was not necessary to aid the plaintiff in reaching a decision as to whether she should exercise any right of challenge; that the purpose of the question was to suggest to the jurors that the defendant carried insurance against the alleged liability in the suit and that the asking of the question unreasonably and substantially prejudiced the defendant’s interests. The court overruled the objection of the defendant and permitted the plaintiff’s attorney to ask the question aforesaid collectively of the jury.

There are many divergent opinions, policies and suggestions' in the various States of this country as to whether or not it is reversible error for the jury to be asked on their examination as to their qualifications to sit as jurors, if they have any interest or connection with an insurance company who is admittedly an insurer in the case and the real party in interest, being represented in court by its counsel and having charge of the defense, implying thereby that if this fact becomes known, the jury may be unduly influenced as to the liability and the amount of damages will be increased thereby. The rule in this regard varies in the different States, some States compelling the plaintiff by statute to make the insurance company a party defendant (Wisconsin laws) while in this State it is held permissible to ask such questions if done in good faith. If the lawyer is exercising a “right” on behalf of his client, it is difficult for a court to determine or even question what his motive may be, so long as he is properly exercising the “right.” The decisions set forth possible errors which may occur when the mention of the insurance company may arise during the trial, either on the voir dire examination or during the admission of evidence. The consensus of the different opinions seems to be that if it is apparent to the qourt that the plaintiff upon the introduction of evidence makes an attempt to make it plain to the jury that an insurance company is involved, then the court may sustain the objection on the ground that it is not an issue in the case, and if prejudicial error has been committed by getting before the jury irrelevant and prejudicial facts which cannot be corrected, except by granting a new trial, to act accordingly. But, on the examination of the jurors as to their competency, in order that-a fair trial may be had, it has always been considered permissible to inquire of a juror whether he has any interests, relationships or experiences which might affect his judgment either sympathetically or prejudicially. There is no uniform practice in this State or in other States relative to the form of questions to be asked a prospective juror. Some States compel owners of automobiles to have them insured. Most every intelligent person in this State knows about automobile insurance, and its almost universal use. Why should a juror be presumed to know less when he becomes a juror than he did as a member of the great body of citizens from which he was selected? To illustrate the opinions on this question in this State, two cases are here cited:

In the case of Iroquois Furnace Co. v. McCrea, 191 Ill. 340, at page 344, it is said:

“It is complained that the court erred in permitting counsel for appellee to question certain jurors upon their voir dire as to their interest in the Union Casualty Company. It appears that an attorney representing that company, was present with the attorneys for appellant at the trial. The question was proper at least for the purpose of enabling counsel to exercise their right of peremptory challenge, if for no other purpose. (O’Hare v. Chicago, Madison and Northern Railroad Co., 139 Ill. 151; American Bridge Works v. Pereira, 79 Ill. App. 90, and cases therein cited.)” In the case of Mithen v. Jeffery, 259 Ill. 372, the court at page 375, said:

“During the examination as to his competency, of one summoned as a juror he testified that his business was all kinds of insurance, including liability insurance. The following questions and answers followed: ‘Do you know Mr. Jackson?’ — ‘No.’ ‘Mr. Snow, here?’ — ‘No.’ ‘The Travelers Insurance Company?’ Objection was made to the last question, and while the court was considering the motion the attorney for defendants moved to discharge the panel on account of the questions being* asked. The court overruled the motion, to which the attorney excepted and then stated that his objection was to the question. The attorney for plaintiff then further examined the juror as to whether, in handling liability insurance, he came" in contact with personal injury claims, to which he answered that the corporation did but he did not, and that his work was fire losses. He was peremptorily excused. It is urged that the propriety of the question was not saved for review, but we are of the opinion that it was. Objection was made to the question, and while the attorney for the defendants also made a motion to discharge the panel, he stated at the time of the ruling that his objection was to the question. It is not proper for an attorney to directly inform a jury that a defendant is insured against liability in the suit on trial, and, of course, the attorney cannot be permitted to accomplish the same result indirectly in the examination of jurors. It is the right of an attorney to ascertain whether a juror has any interest in or relation to claims or suits of the same character as the one being tried, for the purpose of exercising the right of peremptory challenge, (Iroquois Furnace Co. v. McCrea, 191 Ill. 340,) but that can be readily done by an examination which would not lead the jury to understand that the defendant is insured against liability and is without substantial interest in the question of damages. The purpose of an attorney in making such inquiries as were allowed in this case is to inform the jury that a defendant is insured, and such examination is improper. (Eldorado Coal Co. v. Swan, 227 Ill. 586; McCarthy v. Spring Valley Coal Co., 232 id. 473; Aetitus v. Spring Valley Coal Co., 246 id. 32.)”

The two cases just quoted illustrate some of the distinctions made in deciding this question.

In the case of Steinkamp v. F. B. Chamberlain Co. (Mo. App.), 294 S. W. 762, the court in upholding the right of counsel for plaintiff to interrogate the jurors on their voir dire as to whether or not they were stockholders in a certain insurance company, or acquainted with persons connected with that company, where it was undisputed that this company was in fact interested in and conducted the defense on behalf of the defendant employer, said:

“Indeed we do not see how a lawyer having a proper sense of his responsibilities to his client could have failed to interrogate the jurors concerning their relations to parties vitally interested in the defense of the case and in the result of the trial.”

In the case of Grant v. National Ry. Spring Co., 91 N. Y. S. 805, the court said:

“If some insurance company was interested in the case, then there was good reason why plaintiff’s counsel should inquire and be certain that no juror interested in that particular insurance company or any other like company was on the jury. It may be claimed that counsel often make these inquiries when they have no reason to suppose that there are any persons among the jurors interested in these insurance companies. The answer is, they do not know, and inquire for information. It is not safe to assume in these times that men summoned upon petit juries may not be interested as stockholders in any companies that are likely to make money and pay good dividends; men do not disclose to the public where their money is invested, and the only safe way is to ask if they have such interests. The questions are proper and competent, and the court may not exclude answers to such inquiries or charge counsel with bad faith or improper motives in making the inquiries. If the questions are proper, it is not important what the motives of counsel may be.”

Most of the decisions with relation to this question are qualified by the statement that the question must be asked by counsel in good faith. In discussing this subject it is stated in 56 A. L. R. at page 1472:

“In some jurisdictions, particularly Missouri, which permit the plaintiff, on examination of the jury on voir dire, to interrogate the jurors as to the interest which they may have in a particular insurance company, the privilege is qualified by the requirement that the plaintiff must actually know that the insurance company referred to carries the defendant’s liability insurance. ’ ’

In the instant case the affidavit filed and the admission of counsel on the record show the particular company that insured the defendant in this case was present at the trial by its counsel.

The legislature of this State has seen fit to give to parties litigant the right of challenge (ch. 110, if 194, sec. 66, and ch. 78, If 14, sec. 14, Ill. State Bar Stats. 1935) in order to enable them to select a jury of men competent to serve in the administration of justice without prejudice, sympathy or partiality.

In the case of Dowd-Feder v. Truesdell, 130 Ohio St. 530, 200 N. E. 762, it was said: “Any rule of law which denies a litigant reasonable latitude in the examination of prospective jurors as to their qualifications, in order to enable him to exercise such peremptory chailenges judiciously and intelligently, deprives him of a substantial right.”

In the case of Donovan v. People, 139 Ill. 412, the Supreme Court said in refusing defendant’s counsel the right to examine the jurors for cause:

‘ ‘. . . the law-making power of the State has deemed it wise to give the right of peremptory challenge, to be exercised in the discretion of the party entitled, and the courts are not authorized to limit or restrict the right, or prescribe rules which shall render it unavailing. Such reasonable examination by counsel should always be allowed as will enable the court to see that the jurors stand indifferently between the parties and are possessed of the requisite qualifications, and also to enable counsel to challenge for cause, if cause exists, or to exercise the right of peremptory challenge when in their judgment it is deemed necessary or advisable.”

It is further claimed by the defendant that the prejudice which he claims was engendered by the filing of the affidavit and the asking of the questions of the jurors as a whole was further accentuated by inquiries made of the jurors individually. Two of the first jurors, of whom the question as to their vocations was asked individually, stated that they were in the insurance business and they were then asked if they had any connection with the claim department or with the legal end of it and their answers were “No.” These questions were proper and we cannot see that the defendant could be prejudiced thereby.

The insurance company, by its contract of indemnity, became an interested party before the court. We do not believe any hairline inference should be drawn because of the mere mention of a name by which the one question complained of should be construed as being so destructive to the trial that the verdict must be set aside. We believe it is only where the court can say, after a consideration of the entire record, that a fair trial has not been had or that justice has not been done, that the verdict and judgment should be set aside. Much must be left to the discretion of the trial judge. In this case plaintiff’s counsel filed the affidavit and gave a copy of the same to the defendant’s counsel and the same' was considered by the trial court out of the presence of the jury. We think the filing of the affidavit and the disclosing of what the lawyer intended to do, well in advance of the trial and out of the presence of the jury, should not be construed as an act of bad faith without further evidence thereof. This applies even if we adopt the theory of questioning the motive of a person who is concededly in the exercise of a right. Many of the cases cited by counsel for defendant are cases in which the insurance company was mentioned during the taking of the evidence, which raises a different question than occurs during the examination of a prospective juror on his voir dire. In this case as heretofore stated, the matter was discussed and the question passed upon by the court in advance of the trial.

In the case of Pavilonis v. Valentine, 120 Ohio St. 154, 157, 165 N. E. 730, it is stated:

“. . . the questions that may be propounded necessarily vary with the varying issues, circumstances, and parties, as such issues, circumstances, and parties may operate to influence or bias particular jurors, as distinguished from jurors generally. Because of the great variety of such influences, the character and scope of the questions that may be propounded necessarily cannot become standard, but must be controlled by the court in the exercise of a sound discretion, the court having for its purpose of securing to every litigant an unbiased jury.” Counsel for defendant also relies on the case of Vega v. Evans, 128 Ohio St. 535.

In the case of Dowd-Feder v. Truesdell, 200 N. E. 762, which is the last expression of the Supreme Court of Ohio, the Supreme Court reviews the Pavilonis case and the Vega case, and stated that they had reconsidered the question proper on the voir dire examination hoping to find some middle ground so as to afford all parties a fair trial and further said:

“(3) In the examination of a juror upon his voir dire, in cases involving property damage, personal injury, or both, he may be asked the general question whether he has or has had any connection with or interested in a casualty insurance company. If the answer be in the affirmative, the juror may then be asked the name of such company and the nature of his connection with or interest therein. . . .

“ (4) It is neither wise nor desirable for this court to prescribe the specific form such interrogatories are to take, or the manner of their presentation. That is a matter wholly for the trial court to determine in the exercise of its sound discretion and in the light of all the facts and surrounding circumstances. ...”

In view of the various authorities in this State and throughout the country and the desire of the courts that the litigants receive a trial before a jury of fair minded men, we think much must be left to the discretion of the trial court to see to it that a jury of men are selected who will be fair alike to the plaintiff and defendant. Frochter v. Arenholz, 242 Ill. App. 93; Aetitus v. Spring Valley Coal Co., 246 Ill. 32. We do not think prejudicial error was committed in permitting this question to be asked.

The question of proximate cause and preponderance of the evidence being matters for the jury’s determination, they were properly left to the jury. It is only where this court can say that the verdict of the jury is against the manifest weight of the evidence that we would be jusified in setting aside the verdict of the jury for such, reason. Motions made at the conclusion of the plaintiff’s evidence and again at the end of the hearing of all the testimony were properly overruled.

Complaint is made as to some of the instructions given and refused. Some of the objections now made were not made at the time of the trial, in accordance with the then existing section 67 of chapter 110 of the new Practice Act. However, from a review of the instructions as an entirety, it appears to us that the jury was fairly instructed as to the law pertaining to the case.

Objection is also made to the overruling of the motion in the arrest of judgment on the ground that one of the counts in the declaration charged- wilful and wanton conduct while the other counts charged negligence and violation of a statutory duty. No suggestion was made to the court that the jury be directed to find a separate verdict upon the count charging wilful and wanton conduct. Chapter 110, 196, Ca-hill’s 1933 Rev. St. provides:

"(2) Whenever there are several counts in a complaimt based on different demands, the court shall, on the demand of either party, direct the jury to find a separate verdict upon each. But if, in any case, there are several counts, and an entire verdict is rendered thereon, the same shall not be set aside or reversed on the ground of any defective count, if one or more of the counts be sufficient to sustain the verdict.”

In the Appellate Court of this district in the case of Price v. Bailey, 265 Ill. App. 358, and also in Provenzano v. Illinois Cent. R. Co., 272 Ill. App. 475, 482, it was held that a general verdict will not be set aside where some counts of the declaration charged the defendant with negligence and other counts charged him with wilful and wanton conduct, there being no evidence to sustain wilful and wanton conduct.

In the case of Guianios v. DeCamp Coal Min. Co., 242 Ill. 278, at page 281, the court said: “In tort the plaintiff may prove a part of his charge if the averment is divisible, and proof of a part of the allegations, if sufficient to sustain a case, will sustain a judgment. ... In this case, if the proof showed that the act was caused by the negligence of appellant, recovery could be had even though the negligence was not wanton or willful.” We think the motion in arrest of judgment was' properly overruled. .

It is next contended that the verdict of the jury for the sum of $7,500 is excessive.

The evidence shows that the plaintiff was 24 years of age, working as a clerk for a telephone company at the time of the accident; that as a result of the accident she sustained a laceration about four inches long under her chin, her nose and jaw were fractured and several teeth had to be removed.

Dr. Secunda, the doctor who attended the plaintiff, testified that she sustained a fracture of the lower jaw as well as a fracture of the upper jaw; that the laceration under her chin required eight sutures; that her nose, that is the septum, was diverted from the medium line; that her nose bled profusely as did her mouth and lower jaw; that her front teeth were knocked loose from the alveolar tissue down below the teeth; that plaintiff was unable to move her jaw, could not work it up and down; that it took 48 hours to control the hemorrhage and that in doing so it was necessary to pack the nasal passage leading back from the nose to the mouth, which the doctor packed through her mouth and that he set the bone in position; that six of her teeth were knocked loose from the alveolar process as though they were broken, you could take them between your fingers and move them all the way around; that he sent her to an oral surgeon or specialist and that he set and wired her jaw and the wiring of the teeth and jaw kept them in a rigid position; that she developed a nervous condition known as neurasthenia and that she trembled and cried frequently; that the patient still has an interlocking of the jaw and that the condition is permanent.

Dr. Potts, the other doctor who attended plaintiff, stated .that upon examination he found that she had a fracture of the upper right neck of the condyle, or joint surface, and that this controls the lateral and forward motion of the jaw; that the X-rays showed a fracture of the alveolar process which is a part of the jaw bone and this affected her lower front teeth and they were all loose; that wire splints were put on to try to hold the teeth in place and arch bars were wired together and a rubber bandage put around her head; that her teeth had since been removed and that she is wearing a plate with eight artificial teeth; that the movement of her jaw is limited and the condition is permanent; that this limitation interferes with her ability to eat.

Plaintiff stated that she has trouble with her jaw. In the morning it is stiff and when she opens her mouth the joint of the jaw bone catches near her right ear and that she sometimes has trouble in speaking.

The injuries which plaintiff sustained as a result of this collision as set forth in the evidence, were both serious and permanent. The disfigurement to this young woman’s face, the breaking of the jaw bone (and other bones of the face), the loss of her teeth, and also the mental and physical suffering she endured entitles her to adequate damages which in this case should be for a substantial amount. In view of the evidence we do not feel that the verdict is excessive and it shows that the jury was not prejudiced against the defendant by anything that occurred at the trial.

From a review of all the evidence and the controverted facts, we believe that the jury, having seen and heard the witnesses testify, were well fitted to determine wherein lies the preponderance of the evidence. The finding of the jury was approved by the trial judge and we are not in a position to say from a reading of the record that the judge and jury arrived at a wrong conclusion. We are of the opinion that the judgment should stand.

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

Judgment affirmed.

Hebel and Hall, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois ex rel. Oscar Nelson v. Ridgeway State Bank. In re Petition of Louis Jaffie, Appellant, v. William L. O’Connell, Appellee.
    Gen. No. 38,779.
    Opinion filed November 4, 1936.
    Rehearing denied November 27, 1936.

      Louis Jaeeie, pro se.

    Ode L. Rankin, of Chicago, for appellant; Ode L. Rankin, of counsel.
    Jetzinger & Quinn, of Chicago, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court. .

This is an appeal from an order entered by the trial court dismissing the petition of Louis Jaffie which was filed against William L. O’Connell, successor receiver of the Ridgeway State Bank.

As near as we can gather from the limited information given to us from the briefs and abstract, it appears that on October 21, 1935, a petition was filed by William L. O’Connell as receiver of the Ridgeway State Bank, stating that he was engaged in the liquidation of the assets, properties and effects of said corporation pursuant to the statutes; that among the assets of said bank in possession of the receiver is a judgment obtained upon a note of Nathan Weiner, in the amount of $2,000 signed by the Congregation Bnai Zion, a religious corporation, also a $3,000 subordinated mortgage note signed by one A. Menle, which latter note is in default and had been foreclosed upon and is of no value; that with respect to the $2,000 split mortgage note the same is a portion of a $10,000 mortgage indebtedness, which was issued subject to a first mortgage secured by the premises of the religious corporation; that recently he is in receipt of an offer which has been made to purchase a $2,000 default note, which is evidenced by Bonds Nos. 28 and 29, each for the sum of $50, and Bonds Nos. 121 to 130, inclusive, and Nos. 132 to 140, inclusive, each in the sum of $100, for the sum of $800 in full payment of said note.

The receiver’s petition further states that upon receipt of the offer he investigated the advisability of the acceptance thereof, and after due examination of the facts surrounding1 the same, he is of the opinion that the said Nathan Weiner is financially insolvent and is unable to pay his indebtedness and that the offer herein made is the best one that can be obtained and based upon these facts has decided to accept same, subject, however, to the approval of the court and the auditor of public accounts.

Continuing the receiver’s petition prays the court to enter an order authorizing and directing him to sell a $2,000 split mortgage note evidenced by Bonds Nos. 28 and 29, each in the sum of $50 and Bonds Nos. 121 to 130 and 132 to 140, inclusive, each in the sum of $100, said mortgage note having been executed by the Congregation Bnai Zion, and heretofore deposited amongst other collateral as security to the indebtedness of one Nathan Weiner for the sum of $800 in cash.

There is then presented a letter addressed to William L. O’Connell as receiver of the Ridgeway State Bank and signed by Edward J. Barrett, auditor of public accounts, in which it is stated:

“ . . . please be advised that based on your recommendation this office will approve your action in accepting eight hundred ($800.00) dollars in cash, in full payment of the said notes.”

Thereafter on October 21, 1935, an order was entered by Judge Walter P. Steffen on motion of the solicitors for William L. O’Connell, in which order, after reciting the facts and circumstances hereinbefore set forth in the petition, it was stated:

“It is therefore Ordered, Adjudged and Decreed that leave is hereby granted William L. O’Connell, as receiver for the Ridgeway State Bank, to sell a Two Thousand Dollars ($2,000.00) split mortgage note evidenced by Bonds Nos. 28 and 29 each in the sum of Fifty Dollars ($50.00), and Bonds Nos. 121 to 130 and 132 to 140, inclusive, each in the sum of One Hundred Dollars, ($100.00), said mortgage note having been executed by the Congregation Bnai Zion, and heretofore deposited amongst other collateral, as security to the indebtedness of one Nathan Weiner, for the sum of Eight Hundred Dollars ($800.00) in cash.” This order was also approved by Edward J. Barrett, State auditor.

The petition further shows that thereafter on November 26, 1935, a petition was filed by one Louis Jaffie, who is the person who made the offer to William L. O’Connell to purchase the security for $800 in cash, in which petition he stated that prior to October 21, 1935, the said William L. O’Connell, receiver, sanctioned such purchase and the same was approved by Edward J. Barrett, State auditor; that Jaffie appeared before Charles Ummach, deputy receiver of William L. O’Connell, receiver, who requested him to deposit the sum of $50 as evidence of good faith, and in compliance with said request he deposited $50 with said deputy receiver; that after said order was entered by the court, he, Jaffie, appeared before said Charles Ummach, deputy receiver of William L. O’Connell, receiver, and requested the delivery of said bonds upon the payment of the balance of $750; that the received refused to deliver the bonds and the petitioner prays that a rule be entered upon the said William L. O’Connell, to show cause why the said bonds should not be turned over to the said petitioner Jaffie upon the payment of $750, which tender was made in open court, etc.

The court permitted this petition to be filed and said O’Connell, receiver, was ruled to answer said petition within seven days thereafter.

The answer of O’Connell was filed on December 10, 1935, in which he admitted that Jaffie, the petitioner, made an offer to purchase the security for $800, but alleges that thereafter the said receiver had an offer of $1,350 for said property, which was far in excess of the offer made by Jaffie; that the said receiver O’Connell believes that he ought to accept the higher offer for said property in the interest of the depositors in said defunct bank and that the order hereinbefore entered authorizing the petitioner to accept the offer of said $800 for the bonds be vacated and set aside as not in the best interests of the estate; that he hereby tenders the sum of $50 to the petitioner, Louis Jaffie, which sum was paid by him as evidence of good faith.

The cause was heard on the petition and answer before Judge Walter Stanton in the superior court and the petition was dismissed for want of equity and the said O’Connell was further ordered to sell the securities to the highest bidder therefor. It is from this order that the appeal was taken.

From the record before us we cannot tell whether the receiver O’Connell was appointed by the court or whether he was a statutory receiver appointed by the auditor, or whether by the pleadings there was invoked the general power of a court of chancery, or whether the petition of the receiver was made under section 11 of the Banking Act, which provides that the receiver of the bank, appointed by the auditor, may dispose of its assets with the consent of any court of record.

It is to be noted that the order entered by Judge Steffen, although the petition asked that leave be given and the receiver directed to sell the securities for the sum of $800, merely gave leave to sell such securities. We gather from the order of Judge Steffen, the court restricted itself to merely giving leave to the receiver to sell with the court’s consent. The petition does not allege that the property was' so Id to him but that the $50 deposit was paid as an evidence of good faith. No evidence was heard on the petitions or answers. It is very natural and, in fact, it would be the duty of the receiver, if the sale was not completed, upon receiving information that the securities were worth more than had been offered, to sell them to the highest bidder. No order of the court was disobeyed by the receiver as he had received no directions from the court concerning the sale of the securities.

We are of the opinion that the order entered by the superior court, permitting the property to be sold at the higher price in order that the depositors and creditors of the bank should benefit thereby, was correct and for the reasons given herein the order of the superior court is affirmed.

Order affirmed.

Hebel and Hall, JJ., concur.


text:
    The People of the State of Illinois, Appellant, v. Frank Budasi, Appellee.
    Gen. No. 38,815.

      Opinion filed November 4, 1936.
    Thomas J. Courtney, State’s Attorney, for appellant; Edward E. Wilson and Amos P. Scruggs, Assistant State’s Attorneys, of counsel.
    Ungaro & Sherwood, of Chicago, for appellee.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This case comes before us on a writ of error to the municipal court, wherein a judgment was entered against the defendant Frank Budasi who was charged with stealing $14 from Nicholas L. Wilier and was sentenced to the House of Correction for six months and fined $1 and costs.

Later, on a petition filed by defendant, he was retried and found not guilty. There is also before this court for consideration case No. 38,816, entitled People of the State of Illinois v. Frank Budasi, the defendant in the instant case, wherein he was charged with and found guilty of having assaulted, struck and wounded the said Nicholas L. Wilier. The trial court sentenced said defendant to the House of Correction for six months and fined him $1 and costs. Both sentences were to run concurrently. This case was also reconsidered on defendant’s petition and he was found not guilty.

As this case and case No. 38,816 involve the same parties and the facts and the law applicable in each case are substantially the same, they have been consolidated for our consideration.

Defendant did not file any briefs in this court.

The evidence shows that on September 8, 1935, an information was filed in the municipal court charging Frank Budasi with having stolen $14 from Nicholas L. Wilier. A warrant was issued and Budasi arrested. At the same time another information was filed charging Frank Budasi with the assault and battery of Nicholas L. Wilier, upon which a warrant was issued and defendant was brought before the court for trial, being represented by counsel of record. Upon arraignment defendant pleaded guilty to both charges and on September 11, 1935, was sentenced to the House of Correction for a period of six months and fined $1 and costs, the fine to be worked out at the rate of $1.50 a day.

On the charge of assault and battery and on a plea of guilty the defendant was filed $1 and costs and ordered committed to the House of Correction until he paid the same or worked it out at the rate of $1.50 per day.

The evidence further shows that on October 11,1935, on a petition of defendant the cases were set for a rehearing on October 14, 1935, although the record contains no copy of the petition. On November 4, 1935, an order was entered setting the cases for trial on November 12, 1935, and on November 12, 1935, they were set for November 13, 1935, when the cause was set for trial on November 15, 1935, although there was no order vacating the previous judgments or granting a new trial.

On November 14, 1935, a notice was served on the State’s attorney purporting to be signed by the defendant, in which defendant sets forth that he was sentenced on September 11, 1935, to serve six months on both the charge of larceny and the charge of assault and battery and also to pay a fine of $1, and that he has now been advised that, at the time he signed a certain document before the court, he signed what is known as a jury waiver; that defendant did not know that he signed a jury waiver and was not informed of the fact that he was entitled to a jury trial; that he was not informed of the fact that he was actually up for trial and was under the impression that he was merely before the judge for a preliminary examination; that had defendant been advised of the fact that he was actually on trial in these cases, he would not have signed the jury waiver but would have insisted on a jury trial and would not have pleaded guilty.

Defendant further states that at the time his case was called for trial it was the first time these cases had been reached and that he had had no opportunity to consult with his counsel in connection with the preparation of the defense in these cases; that his attorney asked for a continuance, but the same was denied and because of the foregoing- he was wholly unprepared to proceed to trial on the date aforesaid. Defendant prayed that the orders heretofore entered on September 10, 1935 in the above case be vacated as provided by “section 89 of the Practice Act Chapter 110” of the State of Illinois for the purpose of correcting errors in fact committed in these cases and that a new trial be granted. At that hearing the defendant was ordered brought from the House of Correction to appear at the hearing on November 15,1935. The State’s attorney thereupon appeared and made a motion to dismiss the above petition for the reason that the petition was not sufficient. Thereafter on the same day, a hearing was had on the petition and a new trial granted and the motion of the State to dismiss the petition was denied. Thereupon the cause was heard before the court without a jury and the defendant found not guilty and discharged.

It is quite apparent from the petition of the defendant that, under the statute, nothing therein stated could properly be used as the basis for a motion in the nature of a writ of error coram nobis. The purpose of the writ of error coram nobis under the common law practice and as now„ provided by paragraph 200, section 72 of the Practice Act, being chapter 110, Ill. State Bar Stats. 1935, is that such writ should only be used where an error of fact occurred at the trial of which the court had- no knowledge and which evidence could not be produced by the defendant either through duress, ignorance or excusable mistake. People v. Crooks, 326 Ill. 266.

As was said in the case of Jacobson v. Askinaze, 337 Ill. 141, at page 146:

“The purpose of the writ coram nobis at common law, and of the statutory motion substituted for it in this State, is to bring before the court rendering the judgment matters of fact not appearing of record, which, if known at the time the judgment was rendered, would have prevented its rendition. Illustrations of such matters are the disability of the parties to sue or defend, the failure of the clerk to file a plea or answer, and the omission to interpose, through fraud, duress, or excusable mistake and without negligence on the part of the defendant, a valid defense existing in the facts in the case. The motion is not available to review questions of fact which arise upon the pleadings or to correct errors of the court upon questions of law. ’ ’

In this case the defendant stated that he would not have pleaded guilty; that he would not have waived a jury trial and that he did not know he was on trial, etc. Defendant’s petition does not allege any fact unknown to the court at the time of the trial which, if presented at a new trial, would result in any different finding by the court. He did not claim in his petition that he was not guilty of the charges or give any legal reason why a new trial should be granted.

Defendant’s allegation that he would not have signed a jury waiver is of no consequence because the record shows that he pleaded guilty and a jury would not be called in that event. He was represented in court by counsel who presumably instructed him as to his rights under the law. The lack of good faith in filing the petition is evidenced by the fact that, upon being granted a new trial, he waived a trial by jury.

For the reasons herein given the judgment of the municipal court finding the defendant not guilty and discharging said defendant is hereby reversed and the cause is remanded with directions to that court to strike the petition of the defendant and vacate and set aside the order setting aside the previous order of conviction and enter an order remanding the defendant to the custody of the superintendent of the House of Correction to complete his sentence and enter such other orders as may be necessary which are not inconsistent with the views herein expressed.

Judgment reversed and cause remanded with directions.

Hebel and Hall, JJ., concur.


text:
    Nels P. Miller, Appellee, v. Cottage Grove State Bank et al., Appellants.
    Gen. No. 38,832.

      Opinion filed November 4, 1936.
    Chadwick & Johnson, of Chicago, for appellants ; Rudolph L. Johnson and Cecil L. Cass, of Chicago, of counsel.
    Russell, Murphy & Pearson, of Chicago, for appellee ; Walter Wm. Pearson, of counsel.
   Mr. Presiding Justice Denis E. Sullivan

delivered the opinion of the court.

This case comes before us on an appeal from a decree entered on January 10, 1936, in the superior court in favor of Neis P. Miller, plaintiff, and against the Cottage Grove State Bank, a banking corporation, and the stockholders of the said bank. The decree was entered after a hearing on a creditors’ bill which had been filed on. behalf of all the creditors of the Cottage Grove State Bank, seeking to enforce the statutory liability of all the stockholders of said bank.

Plaintiff’s contention is that the capital stock of the bank was on or about June 1, 1923, increased to $200,000 and that the stockholders by accepting said stock as so increased and the dividends thereon are estopped from asserting against plaintiff, and denying liability as stockholders of said bank even if there was a failure of the directors and officers of said bank to comply with certain statutory requirements relative to increasing said stock, being its failure to record the report of the proceedings relative to said increase with the State auditor and also its failure to file a certificate with the recorder of deeds of Cook county.

Defendants’ contention is that the Cottage Drove State Bank was never authorized to do business as a $200,000 corporation; that said bank had an authorized capitalization of only $100,000 and that the liability of the stockholders should have been based upon the authorized capital stock for the latter sum.

The decree found that the stock of the Cottage Drove State Bank was on or about June 1, 1923 increased from $100,000 to $200,000.

There does not appear to be any dispute as to the facts but only as to the law applicable thereto. The record shows that in 1923 an application was made to the auditor of public accounts of the State of Illinois to increase the capital stock of the Cottagu Drove State Bank from $100,000 to $200,000 which was granted; that the then officers of the said bank failed to file in the office of said auditor of public accounts a certificate of the adoption of said resolution to increase said capital stock and also failed to file a certificate of said auditor’s approval thereof with the recorder of deeds of Cook county, Illinois; that said increase of capital stock was fully subscribed for and certificates representing such increase were issued to and accepted by the subscribers thereof; that when the said additional stock was paid for as required by law, said bank continued to do business with a capital of $200,000; that between the dates of June 30, 1923, and June 30, 1930, 23 dividends were declared on all the capital stock of said bank as so increased and said dividends were paid to and accepted by the holders of the capital stock as increased; that the stockholders of said bank who held stock during any period between June 1, 1923 and June 22, 1932, participated gs stockholders in the transactions of said bank.

It is not disputed there was a failure to furnish a report to the auditor of public accounts of the State of Illinois, setting forth the action taken at the meeting of the directors increasing the amount of the capital stock, or that a certificate bearing the auditor’s approval was never filed with the recorder of deeds of Cook county, Illinois.

The main question for our consideration in this case is based upon whether or not the failure on the part of the defendants to file a certificate with the auditor of public accounts and a certificate of said auditor’s approval with the recorder of deeds, was such a violation of the statute as would justify the reversal of the decree in this case.

Plaintiff contends that the failure of the officers of the bank to file with the auditor of public accounts a certificate to show the action taken by the stockholders to increase the stock, and also their failure to file a certificate bearing the approval of the auditor with the recorder of deeds, was merely an irregularity or informality which does not effect the increase of the stock, and that such irregularity or informality cannot be pleaded to defeat an action to enforce the stockholders’ liability.

Defendants contend that the failure to file the certificate with the auditor of public accounts as well as with the recorder of deeds was not in compliance with the statute and, for that reason, the increase in the capital stock of the bank was never legally made; that compliance with the statute is necessary in order to make the increase in the stock and that the stockholders are only liable to the creditors based on the original capital stock of the bank, being for $100,000.

Defendants further contend that they are not es-topped in asserting that they are not liable to said stockholders of the bank by reason of the failure of the directors or said officers of the bank to comply with the statutory requirements relative thereto.

Counsel for defendants in calling attention to the violation of the statute cite section 12 of chapter 16a of Cahill’s Ill. Rev. Stat. 1923. As this statute was not passed until 1929 and was adopted by a vote of the people on November 4, 1930, we are compelled to refer to the statute as it existed in 1923, when the transaction took place.

Section 12, ch. 16a, ÍÍ12, Cahill’s Ill. Rev. Stat. 1923, provided as follows.:

‘ ‘. . . a certificate thereof, verified by the affidavit of the president, and under seal of the corporation, shall be filed in the office of the Auditor, and a like certificate filed for record in the office of the recorder of deeds of the county where the principal business office of such corporation is located; and upon the filing of such certificate the changes proposed and voted for at such meeting, as to name, place of business, increase or decrease of capital stock, . . . shall be and is hereby declared accomplished in accordance with the said vote of the stockholders.” The statute in existence at that time did not provide for the approval of the auditor or that permission be given nor did it require that an investigation be made. The auditor was merely the official recipient of the certificate and upon the happening of that event the statute declares the increase accomplished.

It is the further contention of the plaintiff that, even admitting that the statutory requirements had not been complied with, the formation of the corporation was de facto and not de jure.

Bushnell v. Consolidated Ice Machine Co., 138 Ill. 67, was a case where four parties entered into an agreement in writing to form a corporation to be known as the Consolidated Ice Machine Co. of this State and the required steps up to and including the issuing of a certificate of the complete organization of such corporation by the secretary of state as required by section 4, chapter 32 of the Revised Statutes, were taken; that in pursuance of that certificate, the complainant together with the directors of said company elected officers for the same “and immediately engaged in business,” and continued to do business for a period of more than five years; that for several months the plaintiff continued to be the secretary and soliciting agent for the defendant and was actively engaged in its business; that about January 1, 1885, he became afflicted with melancholia and remained incapacitated for about three years. During his sickness other directors of said company sold certain shares of his stock in said company for a failure on his part to pay instalments due thereon, the sale being made without notice, etc., and that from the time of the sale he was excluded from all participation in the management of the business. After being restored to health, and before plaintiff filed his bill, he made frequent demands to be restored to his rights in said corporation, without avail, etc. After disposing of several minor matters, the court said:

“The only allegation of the bill which is seriously insisted upon as furnishing a ground for the relief prayed is ‘that the certificate of complete organization was never recorded in the office of the recorder of deeds for Cook County, where its principal office is located, ’ the argument being, that in order to constitute the defendant company a corporation under the laws of this State that certificate must have been so recorded, and failing to become incorporated, its members are to be treated as partners.”

After reciting the section of the statute relating to the issuance of a certificate by the secretary of state and that the same shall be recorded in a book for that purpose, the court further said:

“But assuming that a corporate existence de jure depends upon the filing of the certificate of complete organization in the office of the recorder of deeds of the county in which its principal office is located, and that the bill properly avers that it was not done in the case of the corporation in question, it by no means follows that it did not become a corporation de facto as between the complainant and defendants. From the facts set up in the bill it clearly appears that there was an honest attempt by the incorporators to organize a corporation authorized by the laws of this State. The necessary steps to perfect that organization were all taken as required by the statute, except that the final certificate was not recorded. It is shown by the bill that upon the issuing of that certificate its directors elected the proper officers and proceeded to the transaction of business as a corporation, and continued to act as such until the filing of this bill, a period of more than five years. That these facts established a corporation de facto is settled by numerous decisions of this court. President and Trustees, etc. v. Thompson, 20 Ill. 198; Rice v. R. I. & A. R. R. Co., 21 id. 93 . . .

‘ ‘ That plaintiff in error, if he had been sued by the Consolidated Ice Machine Company on his subscription to its capital stock, could not have questioned its corporate existence on the grounds alleged in his bill, is directly settled by several of the above cited decisions. It is equally clear that if, during the time he was a member of said corporation, it had been sued as such, neither he nor any other of its members could have been heard to say that no such corporation existed. The general rule is, that one who deals with a corporation as existing de facto, is estopped to deny, as against it, that it has been legally organized. It is the settled rule in this State that the legal existence of a corporation de facto can net be questioned collaterally. See cases supra, and Renwick, et al. v. Hall, et al., 84 Ill. 162; The People ex rel. v. Trustees of Schools, 111 id. 171; Keigwin, et al. v. Drainage Comrs., 115 id. 347.

“It seems impossible to find a reason for placing the complainant in this bill in a more favorable position to deny the existence of the corporation in question than a mere subscriber to its capital stock, or one who, as a third party, had dealt with it as a corporation, and we are of the opinion that he could not do so in this collateral proceeding.”

In the case of Marshall v. Keach, 227 Ill. 35, at page 42, the court said:

“This court has held that to create a de facto corporation there must be a law under which said corporation may be created, together with user under the law. (American Trust Co. v. Minnesota and Northwestern Railroad Co., 157 Ill. 641.) We have also held that where there was an honest attempt of the corporators to organize a corporation under the laws of the State, and all the necessary steps had been taken except that the final certificate had not been recorded by the recorder of deeds, and that thereafter the necessary officers had been elected, who had proceeded to the transaction of business as a corporate body, these facts would establish a corporation de facto. (Bushnell .v. Consolidated Ice Machine Co., 138 Ill. 67.) A corporation is a de facto one where the law authorizes such corporation and where the company has made an effort to organize under that law and is transacting business in the corporate name. (1 Cook on Stock and Stockholders and Corporation Law, — 3d ed. sec. 234; 8 Am. and Eng. Ency. of Law, — 2d ed. p. 747.) . . . This court has stated that it is the settled law that neither the eligibility of the directors of a de facto corporation nor the rightfulness of its existence could be inquired into collaterally. (Cincinnati, Lafayette and Chicago Railroad Co. v. Danville and Vincennes Railway Co., 75 Ill. 113, and cases there cited; . . . ”

In the case of Hall v. Woods, 325 Ill. 114, at p. 145, the court said:

“It was held in People v. Mackey, 255 Ill. 144, that a failure to file the final certificate of incorporation within two years from its date was fatal to the legal existence of the corporation and justified a judgment of ouster. It has, however, been held in several cases that the organization of a corporation which had failed to file its final certificate of organization within two years after its date was not subject to collateral attack in a suit between the corporation and an individual litigant. ’ ’

In the case of Scott v. Deweese, 181 U. S. 202, which was a case where an increase of the capital stock of the bank had been voted by a majority of the stockholders and the comptroller of the currency had been notified that the whole amount of such increase had been paid in. It was contended by the defendant that the whole amount of the increase had not been paid in. The National Banking Act specified that no increase of capital should be valid until the whole amount of such increase was paid in. In considering this portion of the statute, the Supreme Court of the United States said at page 210:

“Certainly, the statute should not be so applied in behalf of a person sought to be made liable as a shareholder, when, as in the present case, he held, at the time the bank suspended and was put into the hands of a receiver, a certificate of the shares subscribed for by him; enjoyed, by receiving and retaining dividends, the rights of a shareholder; and appeared as a shareholder upon the books of the bank which were open to inspection, as of right, by creditors. Bev. Stat. Sec. 5210. As between the bank and the defendant, the latter having-paid the amount of his subscription for shares in the proposed increase of capital was entitled to all the rights of a shareholder, and "therefore, as between himself and creditors of the bank, became a shareholder to the extent of the stock subscribed and paid for by him. That the hank, after obtaining authority to increase its capital, issued certificates of stock without the knowledge or approval of the Comptroller and proceeded to do business upon the basis of such increase before the whole amount of the proposed increase of capital had been paid in, was a matter between it and the Government under whose laws it was organized, and did not render void subscriptions or certificates of stock based upon capital actually paid in, nor have the effect to relieve a shareholder, who became such by paying into the bank the amount subscribed by him, from the individual liability imposed by section 5151.”

In the instant case the evidence shows that an effort was made in good faith by the bank to increase its capital stock which, in fact, was done; that the stock was issued and paid for by the subscribers; that on this new stock issue some 26 dividends were paid by the bank from the earnings over a period of some 11 years. Certainly, in a court of equity the defendants would be estopped from declaring that such stock issue was illegal and in a collateral proceeding defeat their statutory liability, especially after they had owned the stock and received the benefit therefrom. Defendants having received the stock issued to them and considered themselves stockholders in fact should not complain if the law also treated them as such with reference to the liability here involved.

For the reasons herein given we are of the opinion that the decree of the superior court was correct and it is hereby affirmed.

Decree affirmed.

Hebel and Hall, JJ., concur.


author: Mr. Justice Hall

text:
    M. J. Pankey, Appellant, v. Federal Life Insurance Company, Appellee.
    Gen. No. 38,416.
    Opinion filed November 4, 1936.
    Rehearing denied November 27, 1936.
    Stebbins, McKinley & Price, of Chicago, for appellant; William E. McKinley and Paul E. Price, of counsel.
    Eckert & Peterson, of Chicago, for appellee; Tom Leeming, of Chicago, of counsel.
   Mr. Justice Hall

delivered the opinion of the court.

Plaintiff brought suit against defendant in the circuit court of Cook county to recover certain commissions, claimed to be due plaintiff under the terms of a contract entered into between plaintiff and defendant. A jury trial was had, resulting in a verdict for defendant, and judgment was entered against plaintiff for costs. This is an appeal from that judgment.

On October 1, 1929, a contract was entered into between the Federal Life Insurance Company, defendant, as first party, and M. J. Pankey, plaintiff, as second party, by the terms of which the defendant company employed plaintiff “as its agent for the purpose of procuring and effecting applications for insurance on the lives of individuals that shall be satisfactory to said company, and performing such other duties in connection therewith as may be required by the said company.” The contract contains many provisions as to the services to be rendered by plaintiff to defendant company, and as to commissions agreed to be paid to plaintiff on account of such services. Article 0 of this contract is as follows:

“It is agreed that said second party shall be allowed Ten Renewal Commissions of five per centum (5%) each on all Cash Renewal Premiums paid to the Company in accordance with its rules and requirements, on policies produced by him and his sub-agents, provided the said policies remain so long in force. ’ ’

Plaintiff severed his relations with defendant, and defendant in its brief admits that under this clause, if plaintiff had not violated his contract, he would be entitled to certain renewal commissions after the termination of his contract, and that certain of them were paid to him by defendant after such termination. Defendant contends, however, that plaintiff forfeited his right to receive further commissions because of his violation of the terms of the contract upon which such right is based, by switching and attempting to switch policyholders in defendant company to another company. The provision of the contract claimed to have been violated by plaintiff is as follows:

“It is expressly understood and agreed that should the second party withhold any money due the Company as shown by its books, or refuse to turn over to the Company, or its duly authorized representative, any books, papers or property of the Company which may have come into the hands of second party as custodian or otherwise, or should he switch or attempt to switch any policyholder or agent of the Company, then and in such event this contract shall immediately terminate without notice and all commissions, accrued or to accrue hereunder, shall be forfeited to the Company (Italics ours.)

Prior to the execution of the contract by the parties, plaintiff received a letter from defendant company, the terms of which were accepted by plaintiff on the face thereof, as shown by the document received in evidence in the trial. It is as follows:

“Chicago, September 20, 1929.
“Mr. M. J. Pankey,
Chicago, 111.
Re: Renewal Commissions Life Contract dated October 1st, 1929.
“Dear Mr. Pahkey:
“It is understood that the renewal commissions called for under this contract are to be paid to you in the event of your resignation, or the cancellation of this contract by the compcmy for any reason except cause, or to your estate in the event of your death. (Italics ours.)
“Yours very truly,
“Federal Life Insurance Company “George Barmore,
Vice President.
‘ ‘ Accepted M. J. Panlcey,
Division Manager.”

On March 3,1932, plaintiff wrote to the defendant as follows:

“Chicago, March 3, 1932.
“Mr. George Barmore, Vice Pres. & Supt. of Agents, Federal Life Insurance Company,
Chicago, 111.
“Dear Mr. Barmore:
“Please accept my resignation in accordance with the provisions of my contract.
“Yours very truly,
“M. J. Pankey,
M. J. Pankey Agency”

Thereafter on March 4, 1932, plaintiff mailed to defendant the following letter:

‘ ‘ Chicago, March 4, 1932.
“Mr. George Barmore, Vice Pres. & Supt. of Agents, Federal Life Insurance Company,
Chicago, 111.
Be: Termination of Contract.
“Dear Mr. Barmore:
“With reference to my letter of March 3rd, terminating my contract with your Company, provided it does not affect my renewals in any way, and as a matter of convenience to you, I would he very glad to consider the severing of my connection as of April 30, 1932, instead of May 3.
“Will you kindly acknowledge receipt of this letter?
“With kindest personal regards, I remain
“Yours very truly,
“M. J. Pankey,
M. J. Pankey Agency”

In reply, plaintiff received the following letter:

“Chicago, March 4, 1932.
“Mr. M. J. Pankey,
Chicago, 111.
Be: Termination of Contracts.
“Dear Mr. Pankey:
“Acknowledging your two esteemed favors, one of the third inst. and one of the fourth inst.:
“It is agreeable to us that your agency contracts with the Federal terminate as of April 30, 1932.
“We should be glad to keep in touch with you and learn of your success in any connection you may make.
“With kind personal regards, I am
“Cordially yours,
‘ ‘ George Barmore ’ ’

On the hearing, defendant was called by plaintiff as a witness under section 60 of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, tf 188, for cross-examination. His testimony was substantially as follows : That as an insurance broker, he conducted his business under the name of M. J. Pankey Agency, or M. J. Panlcey & Company; that during the year 1933, one Wesley wrote some insurance business for plaintiff; that plaintiff paid Wesley commissions on insurance written; that Wesley did not attempt to induce or persuade the policyholders in the Federal Life Insurance Company torrelinquish their policies of insurance in that company, and that plaintiff did not at any time from the date of the contract between plaintiff and defendant, attempt to persuade policyholders of the defendant company to relinquish their policies and place their insurance with other companies. He testified to the effect that he did not remember whether or not he called on certain persons named Serritella in August, 1933, and persuaded, or attempted to persuade such persons to drop their insurance in the Federal Life Insurance Company, and that to the knowledge of the witness, he did not in the year 1933 or 1934, furnish to Wesley the names of persons who had taken out policies with the Federal Life Insurance Company prior to that time.

A witness named Fred M. Kramer testified to the effect that in the year 1933 he had a policy of insurance in the Federal Life Insurance Company on the life of his son and wife, and that the witness paid the premiums ; that in September, 1933, he had a conversation with a Mr. A. J. Wesley regarding insurance; that Wesley called on the witness at his home and exhibited to the witness a card, and that the witness recalled that it was the card of the Pankey Agency, and that Wesley’s name was in the corner of the card. The abstract filed here by defendant in the case contains the following statement as to the testimony of this witness: “Here follows testimony by the witness tending to show that the witness Wesley attempted to persuade him to drop his policy in the Federal Life Insurance Company and take one in some other company.”

One Irwin S. Maze, a witness produced by defendant, testified to the effect that in the year 1933 he had a conversation with Wesley; that Wesley presented a card as representative of the Pankey Agency, and that Wesley suggested that the witness transfer his policy in the Federal life Insurance Company to another company.

Margaret A. Binder, a witness offered on behalf of defendant, testified in substance that she had a conversation with Pankey, the plaintiff, early in the spring of 1933 about insurance; that Pankey advised her to withdraw whatever she could get out of the Federal Life Insurance Company, and advised the witness to take out a policy in another company.

Armin Klein, a witness for defendant, testified that in 1933 he had a policy^ of insurance with the Federal Life Insurance Company; that Wesley came to his house and said that the Federal Life Insurance Company was very low, and that he wanted the witness to put his insurance in another company; that Wesley showed the witness a business card and stated that he represented the Pankey Agency.

One Stefanie A. Klein, a witness produced by defendant, testified to the effect that she was present at a conversation between her husband, Armin Klein, and Wesley in the fall of 1933; that Wesley advised Mr. Klein to drop his Federal Life Insurance policy and take out another.

Alma Birch, a witness for defendant, testified that Pankey, the plaintiff, called on her in October, 1933, at the home of the witness; that at that time, she was a beneficiary under a policy in the Federal Life Insurance Company; that her husband held the policy and paid the premiums; that Pankey told the witness in effect that the Federal Life Insurance Company was going under, and that the witness should turn in the policy and have Pankey write policies with the Continenta! Insurance Company. The witness further testified to the effect that her father had a policy in the Federal Life Insurance Company, and that Pankey advised her father to file application for insurance in the Continental Insurance Company, that both her father and husband signed such application, but that no policy was taken out in the Continental by either, to her knowledge.

Ruth Serritella, a witness for the defendant, testified to the effect that she was called upon by a man named Pankey; that in August, 1932, she was a policyholder in the Federal Life Insurance Company, as was also her husband; that Pankey wanted her to switch her policies to another concern, and that she said, “To what company,” and he said, / ‘one of several”; that the witness said, “Before we would go any further, we would have to investigate to see the financial standing of the Federal before we switched policies.”

Defendant offered in evidence what is recited in the abstract to be a “contract between M. J. Pankey, Anton J. Wesley and the Manhattan Life Insurance Company, by the terms of which, Wesley was employed to procure applications for life insurance and to deliver policies, premium receipts, premium notes and interest receipts upon payment of the amount named therein, when the terms and conditions governing the delivery had been complied with. ’7 This contract, as is recited in the abstract, contains other provisions to which we do not deem it necessary to refer.

A perusal of plaintiff’s brief leads us to the conclusion that plaintiff does not seriously contend that either by himself or by his agent Wesley, he did not seek to switch policyholders in defendant company from that company to other companies. His claim seems to be that, by reason of the words used in the letter from the company to the plaintiff dated March 4th, 1932, to wit: “It is agreeable to us that your agency contracts with the Federal terminate as of April 30, 1932,” the contractual relation between the parties was terminated, and, that, therefore, he is not bound by the provision of the contract with reference to the switching of policies.

Plaintiff cites a number of cases in support of this contention. They are all predicated upon the theory that where an agent has earned commissions which are due him for services rendered at the time of his discharge, by his principal, that such agent may recover such commissions in a proper action. After a careful reading of these cases, we are unable to determine that they have any relevancy to the issues involved here. It is apparent from a reading of the contract and the correspondence between the parties that plaintiff’s contract with defendant to solicit insurance business for defendant alone was terminated. Plaintiff bases his right to the commissions sued for upon the contract, and as already stated, it is admitted by defendant that his claim is well founded, unless he forfeited his right to such commissions by a violation of its terms.

In Chase v. New York Life Ins. Co., 188 Mass. 271, Chase, who was employed as an insurance solicitor for the company, was discharged, and thereafter brought suit against the insurance company for renewal commissions based upon a contract in writing, which provided, among other things, the following:

“It is agreed that said party of the second part shall be allowed, under this agreement, the following compensation only, unless otherwise expressly stipulated in writing, namely, a commission on the original or renewal cash premiums, which shall; during his continuance as said agent of said party of the first part, be obtained, collected, paid to and received by said party of the first part up to and including the fifth year of assurance (should his agency continue so long) on policies of insurance effected with said party of the first part, by or through said party of the second part, which commission shall be at and after the following rates. ’ ’

This contract also contained the following provisions :

“It is agreed that the renewal commissions which shall not have accrued at the termination of the agency created by this agreement shall, as they accrue thereafter, be passed to the credit of said party of the second part, if living, and in case of his death to his legal representatives, under the terms of this agreement; provided, however, said agency shall continue for the period of one year from date hereof, and that said agency shall not be terminated by said party of the first part for a violation of this agreement by said party of the second part, and that said party of the second part shall not be engaged in the business of life insurance for any other company, in any capacity whatever, in the State of Massachusetts during the maturity of said renewal commissions.”

Within a short time after the discharge of Chase by the Hew York Life Insurance Company, he entered into the employment of another insurance company, engaged in the business of life insurance in the State of Massachusetts, and the court in holding that he was not entitled to recover the renewal commissions, said:

“It is obvious at the outset that all the clauses must be considered together, and that the twenty-first clause applies only during the continuance of the plaintiff as agent, for five years. There are many cases which hold that under such a clause, the plaintiff cannot recover after he ceases to act as agent. Stagg v. Connecticut Ins. Co., 10 Wall. 589; Jacobson v. Connecticut Mut. Ins. Co., 61 Minn. 330; King v. Raleigh, 100 Mo. App. 1; Ballard v. Traveller’s Ins. Co., 119 N. C. 187. Whether, if this clause stood alone, the plaintiff could recover, having been discharged without cause, is a question we need not decide, for it is to be construed in connection with the twenty-fourth article. This article begins with a general agreement as to renewal premiums, but this is subject to three provisos. We may assume that the first two provisos do not stand in the way of the plaintiff’s recovery, but the third proviso cuts down the plaintiff’s right of recovery to the case of his not being ‘engaged in the business of life insurance for any other company, in any capacity whatever, in the State of Massachusetts, during the maturity of said renewal commissions.’ ”

In the instant case, the jury heard the evidence, and from it apparently concluded, as they were justified in doing, that plaintiff had attempted to switch policyholders from defendant company to other companies. We are constrained to hold that in doing so, he violated his contract and therefore cannot recover. Therefore, it is our conclusion that the judgment should be and it is affirmed.

Affirmed.

Denis E. Sullivan, P. J., and Hebel, J., concur.