author: Mr. Presiding Justice Friend

text:
    John Brodek, Assignee of Dearborn Glass Company, Appellant, v. Indemnity Insurance Company of North America, Appellee.
    Gen. No. 39,130.

      Opinion filed November 16, 1937.
    McKenna, Harris & Schneider, of Chicago, for appellant ; Abraham W. Brussell, of Chicago, of counsel.
    Wendell H. Shanner, of Chicago, for appellee ; Charles V. Laughlin, of Chicago, of counsel.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

John Brodek, assignee of Dearborn Class Company, a corporation, brought suit in the municipal court to recover damages for breach of an indemnity insurance policy issued by defendant and also for violation of a written supplemental agreement entered into between defendant and Dearborn Class Company, plaintiff’s assignor, subsequent to the issuance of the policy. The cause was submitted to the court on an agreed statement of facts. A written motion for a finding, submitted by defendant, was allowed by the court, and judgment was accordingly entered in favor of defendant and against plaintiff for costs. On appeal by plaintiff the parties have certified their controversy upon agreed facts under our Buie 23 and submitted to us for decision the issues of law involved.

The agreed facts disclose that December 6, 1931, Indemnity Insurance Company of North America (hereinafter referred to as defendant) issued to Dear-born Class Company a certain policy commonly known as a Standard Workmen’s Compensation and Employer’s Liability Policy. June 17, 1932, plaintiff, who had for some time prior thereto been an employee of the glass company at its factory in Chicago, filed suit against his employer in the superior court to recover damages for personal injuries sustained by him while engaged as an employee of the glass company. Plaintiff’s declaration alleged, in substance, that the employer carried on a business which involved a process of shellacking and polishing mirrors by the use of various chemicals, including mercury and ammonia compounds and other chemicals, the composition of which were unknown to plaintiff but were known to Dearborn Class Company, his employer; that after the application of these chemicals to the mirrors the latter were rubbed, with the result that noxious and poisonous fumes and gases, dangerous to the health of the employee were permitted to escape; that plaintiff was engaged over a period of several years in polishing and beveling glass and in the process of shellacking, buffing and polishing mirrors by means of these chemicals, and by reason of his exposure to the action of the poisonous, noxious and deleterious fumes and gases emitted from these mirrors, and the inhalation thereof by plaintiff, he was exposed to dangers not ordinarily incidental to other lines of employment in the glass company’s factory, and as a result thereof he incurred a disease and illness peculiar to his employment, for which damages were sought. No claim for compensation was ever made with the industrial commission and when suit was instituted by Brodek, more than 18 months had elapsed since his employment had terminated and the statutory period for filing' a claim with the commission had expired.

Defendant was immediately notified by Dearborn Glass Company of plaintiff’s claim, and when on June 24, 1932, summons was served on the glass company, a copy of the summons was immediately forwarded to defendant. Thereafter, various conferences ensued between representatives of the glass company, and defendant, in which the question was raised as to whether or not the indemnity company should be obliged to defend the suit under the terms of the policy. Defendant took the position that the opinion in Belleville Enameling & Stamping Co. v. United States Casualty Co., filed June 9, 1932, in the fourth district of Illinois and reported in 266 Ill. App. 586, was controlling. However, there was then pending in the Supreme Court of Illinois a petition for certiorari in that cause and until the final disposition thereof the indemnity company desired to preserve the status quo of its undertaking with the Dearborn Glass Company, and accordingly, after considerable discussion, a supplemental agreement was executed July 29, 1932, between the glass company and the Indemnity Insurance Company of North America, which recited, in substance, the pendency of Brodek’s suit in the superior court, the contention of Dearborn Glass Company that the damages claimed in the suit instituted by Brodek were covered by defendant’s policy, the counter-contention of the Indemnity Insurance Company that Brodek’s claim was not covered by the policy in question, and that “for the purpose of saving any and all the rights of the Indemnity Insurance Company of North America and the Dearborn Class Company in relation to their respective claims,” it was agreed between the parties that the indemnity company should enter the appearance of Dearborn Class Company and file appropriate pleadings on or before August 1, 1932, “for the purpose of avoiding any default that could or might be taken against the Dearborn Class Company, in the cause aforesaid. That the Indemnity Insurance Company of North America undertakes and agrees to defend said suit for damages on account of alleged illness or disability claimed to have occurred on or prior to the 1st day of January, 1931, as alleged in the Declaration filed in said cause.” It was further stipulated that any action taken by the indemnity company in connection with the investigation, settlement or defense of said suit should not be held to be an admission that the insurance policy issued to the glass company prior thereto covered said illness, disability or suit for damages then pending-, and that nothing contained in the agreement should be construed as an admission or waiver on the part of either of the parties to any of their respective rights against each other under the policy of insurance or any policies issued by the indemnity company to the Dearborn Glass Company.

Thereafter, July 30, 1932, the indemnity company filed the appearance of the Dearborn G-lass Company in the superior court proceeding, and also a plea of the general issue. Subsequently, Brodek’s attorneys noticed the cause for trial and it was placed on the calendar of one of the judges of the superior court. Between June and November, 1932, there were various telephone conversations and conferences between counsel representing the indemnity, company and the glass company relating to ways and means of successfully defending or advantageously settling the superior court action then pending.

November 22, 1932, there appeared in the Chicago Law Bulletin, under the printed orders of the Supreme Court of Illinois, a notation that the court had denied the petition for certiorari in the case of Belleville Enameling & Stamping Co. v. United States Casualty Company, supra. Shortly thereafter the indemnity •company’s representative advised its attorneys that in view of the action of the Supreme Court they should no longer defend the pending suit, and that since the indemnity company was handling the defense under the stipulation of July 29, 1932, the further expense of taking depositions should fall on the assured. Its counsel were accordingly directed to withdraw from the case and surrender the defense to the glass company. Counsel followed the instructions of their client and in December, 1932, they were granted leave to withdraw their appearance and the glass company thereafter entered into a contract with other attorneys to defend the suit. In so doing the substituted counsel made trips to New York to take depositions in the cause, had numerous conferences with Brodek’s counsel, and ultimately effected a settlement by which Brodek was to receive $6,250 upon releasing’ all his rights and claims against Dearborn Class Company for any possible liability based on the action then pending in the superior court and all claims arising therefrom. Of this sum he was paid $1,250 in cash by the Dearborn Glass Company and the balance of $5,000 was evidenced by an assignment to him by the glass company of all claims and rights had by the assured against the Indemnity Insurance Company, defendant herein. This assignment was executed May 3, 1933, and constitutes the basis of the action from which this appeal was prosecuted. In addition to the sum of $6,250 paid in the settlement of Brodek’s claim, the glass company expended $410, in cash for defending the suit, taking depositions, making various trips to New York, and other expenditures incurred in preparation for trial. There was also paid to the attorneys, who negotiated the settlement, the sum of $325, for services rendered in preparing a defense and consummating the settlement. As heretofore stated, plaintiff seeks to recover damages, not only for a breach of the contract of indemnity, but also for breach of the supplemental agreement of July 29, 1932, under which it is claimed that the indemnity company was required to defend, independently of any obligation on their part arising out of the indemnity policy itself.

Considering first the supplemental agreement, we find that it was expressly executed “for the purpose of saving any and all the rights of the Indemnity Insurance Company of North America and the Dearborn Glass Company in relation to their respective claims. ’ ’ From the stipulation entered into upon the agreed case it was clearly “the intention of both Mr. Ross Grant, on behalf of defendant, and Mr. Schofield, on behalf of Dearborn Glass Company, to execute a non-waiver agreement that would merely preserve the status quo, and that would in no way give up or waive any rights under the insurance policy had by the Dear-born Glass Company or by the Indemnity Insurance Company of North America, or by either of them.” The agreement itself recites that “the Indemnity Company of North America insists that the claim for damages brought in the suit aforesaid is not covered by said policy or any other policy issued by it,” and that “the Dearborn Glass Company insists that the damages claimed in the suit instituted against it by the said John Brodek is covered by the policy issued by the Indemnity Insurance Company of North America. . . .” It is evident that a difference of opinion existed between the representatives of the Dearborn Glass Company and those of defendant as to whether or not the policy of insurance covered the particular claim made by Brodek. Boss Grant, superintendent of claims for defendant, was of the opinion from the outset that the question of coverage was controlled by the decision of the Appellate Court in Belleville Enameling & Stamping Co. v. United States Casualty Co., 266 Ill. App. 586, which he claimed as precisely in point under a similar policy, and on authority of that decision the defendant was not obliged, under the policy issued to defend the suit instituted by Brodek against the assured. The Dearborn Glass Company fully understood that this was Grant’s opinion, although it disagreed as to the legal effect of the decision. It may be assumed that if a petition for certiorari had not been filed in the Supreme Court the supplemental agreement would never have been executed and that defendant would have refused to defend the case on the ground that the assured’s liability in the superior court suit was not covered by the policy. It clearly appears from the record that the controlling factor in Grant’s mind was the decision of the Appellate Court in the Belleville case. He knew that a petition for certiorari would be filed in the Supreme Court, which, if granted, might eventually result in reversal of the judgment of the Appellate Court, and it was his desire, as clearly expressed in the stipulation under the agreed case, to postpone a final decision as to whether or not his company would defend the suit until the Supreme Court should finally dispose of the Belleville case. It cannot fairly be argued that the supplemental agreement was executed for the purpose of extending the policy of insurance, or of giving to either of the parties any rights not contained in the policy. The agreement specifically provides that “nothing herein contained shall be construed as an admission or waiver on the part of either of the parties hereto to any of their respective rights against each other under the policy of insurance herein described or any policies issued by the insurance company to the Dearborn Class Company prior thereto.” Defendant thus retained all the rights which it had under the policy of insurance and if, as it contends, it was not required by that policy to defend the suit prosecuted by Brodek against the glass company, that immunity constituted one of the rights specifically provided for and contemplated by the agreement. It would be idle under the circumstances to search for the intention of the parties because the intention is clearly expressed in the stipulation on the agreed case. That stipulation states that the parties intended “to execute a non-waiver agreement that would merely preserve the status quo.” By status quo is meant “the existing state of things at any given date.” (59 Corpus Juris 338; Bouvier’s Law Dictionary; Webster’s Dictionary.) It is therefore obvious that the parties intended and agreed that their respective rights and duties toward each other should remain the same as they were under the policy of insurance. There is no indication that either of the parties intended to give any rights to the other beyond those specified in the policy, or to create new duties, except in so far as the creation of new duties was necessary to maintain the same legal relationship between the parties to preserve the status quo then existing between them.

Plaintiff’s sole argument that the effect of the supplemental agreement imposed upon defendant the additional duty to defend the Brodek case to final judgment is based upon that part of the agreement which provides “that the Indemnity Insurance Company of North America undertakes and agrees to defend said suit for damages on account of alleged illness or disability claimed to have occurred on or prior to the 1st day of January, 1931, as alleged in the declaration filed in said cause.” His counsel argue that the expression “undertakes and agrees to defend” obligated defendant to defend the suit to final judgment. However, the language of the contract does not so state, and the stipulation of the parties negatives any such contention. As a matter of fact, defendant did all that could reasonably have been required of it under the supplemental agreement up to the time that it withdrew from the case. The facts were fully investigated, various trips were made to Brooklyn, N. Y., defendant’s counsel studied the law relative to the defense of the case, prepared briefs which were later turned over to the attorneys for the Dearborn Glass Company, and performed all acts incidental to the defense until certiorari was denied by the Supreme Court in the Belleville case and then withdrew from the case several months after the supplemental agreement was executed. There is nothing* to indicate that the glass company was embarrassed by reason of such withdrawal, because the case was not on trial at the time and the substituted counsel had adequate opportunity to become fully familiar with the case before there was any likelihood of its being* reached for trial. In fact, the agreed statement of facts shows that the substituted attorneys had been working together with the indemnity company’s counsel before the withdrawal, and were fully familiar with the issues involved. It therefore appears that the indemnity company did defend the case and did all that was required of it under the supplemental agreement until such time as its views as to the legal aspects of the case were confirmed by denial of certiorari in the Belleville case, supra. Therefore, if plaintiff has any cause of action it must be based on the indemnity policy itself, and not upon the provisions of the supplemental agreement.

This leads to a consideration of the ultimate question whether the policy or indorsements extended coverage to or required the indemnity company to defend the suit filed by plaintiff against the glass company for damages for an occupational disease or to pay the costs of investigation and suit. Stated more concisely, was plaintiff’s suit for damages on account of .an occupational disease included in the coverage provided by the policy? This question requires a consideration of paragraphs 1 (a) and 1 (b), the two coverage provisions of the policy. Paragraph 1 (a) reads as follows: “One. (a) To Pay Promptly to any person entitled thereto under the Workmen’s Compensation Law and in the manner therein provided, the entire amount of any sum due, and all installments thereof as they become due,

“ (1) To such person because of the obligation for compensation for any such injury imposed upon or accepted by this Employer under such of certain statutes, as may be applicable thereto, cited and described in an endorsement attached to this Policy, each of which statutes is herein referred to as the Workmen’s Compensation Law, . . .”

Paragraph 1 (a) also contains the following provision : “It is agreed that all of the provisions of each Workmen’s Compensation Law covered hereby shall be and remain a part of this contract as fully and completely as if written herein, so far as they apply to compensation or other benefits for any personal injury or death covered by this Policy, while this Policy shall remain in force. Nothing herein contained shall operate to so extend this Policy as to include within its terms any Workmen’s Compensation Law, scheme or plan not cited in an endorsement hereto attached.” (Italics ours.)

The indorsement referred to in the policy and attached thereto contains the following provision, followed by a specific designation of the various acts of the legislature included in the indorsement: “The obligations of Paragraph One (a) of the Policy to which this endorsement is attached include such Workmen’s Compensation Laws as are herein cited and described and none other. (Italics ours.)

“House Bill No. 841, Session of 1913, as amended by Senate Bill No. 66, Session of 1915, Senate Bill No. 471 and House Bill No. 551, both Sessions of 1917, Senate Bill No. 384, Session of 1919, and Senate Bill No. 525, Session of 1921, State of Illinois, all known and cited as the Workmen’s Compensation Act, and all laws amendatory thereof which may be or become effective while this Policy is in force.” (Italics ours.) All the legislative acts specified are contained in the Workmen’s Compensation Act and its various amendments up to 1921, and none of the ■ six specified enactments contains the Occupational Diseases Act or any of its sections.

It is first urged by plaintiff that the policy of insurance expressly covers the employer’s liability to pay compensation because of the occupational diseases covered by sec. 2 of the Occupational Diseases Act. He says that paragraph 1 (a) of the coverage provisions imposes a duty upon the insurer to pay compensation to anyone entitled thereto under the workmen’s compensation law, and that a claim for compensation under sec. 2 of the Occupational Diseases Act is a claim under that law. The answer to this argument lies in the fact that paragraph 1 (a) refers to an indorsement of a list of the legislative acts included within the scope of that paragraph, none of which as has been pointed out contains the Occupational Diseases Act or any of its sections. Moreover, paragraph 1 contains the provision hereinbefore set forth that nothing contained in paragraph 1 (a) shall operate to so extend the policy as to include within its terms any workmen’s compensation law, scheme or plan not cited in an indorsement thereto attached, and also the provision preceding the indorsement which specifically states that the obligations of paragraph 1 (a) of the policy to which the indorsement is attached, include such workmen’s compensation laws as are therein cited, and none other.

It is also argued that secs. 2 and 15 (b) of the Occupational Diseases Act constitute “another workmen’s compensation law.” If that be true, the employer’s liability under these two sections is nevertheless expressly excluded from the scope of the coverage of the policy. Whether the Workmen’s Compensation Act was or was not incorporated by reference into sec. 15 (b) of the Occupational Diseases Act the two are still separate statutes, and the fact remains that only the compensation act is covered by paragraph 1 (a).

It is next urged that secs. 2 and 15 (b) of the Occupational Diseases Act are amendatory of the Workmen’s Compensation Act. This argument is based upon that provision of the indorsement to the policy which specifies the particular enactments covered by paragraph 1 (a) and adds “and all laws amendatory' thereof. ’ ’ We take this clause in the indorsement to be simply a provision to care for further amendments of the Workmen’s Compensation Act, because it is evident that the form of this particular indorsement was drafted in 1921, as shown by the last enactment referred to in the indorsement, and it therefor seems reasonable to conclude that it was intended by the last clause of the specification in the indorsement to include subsequent amendments to the acts specified. The courts of this State have specifically distinguished between an amendatory act and an independent legislative enactment which incorporates the terms of a former act by reference. Such a distinction is discussed in People v. Crossley, 261 Ill. 78, and also in Zeman v. Dolan, 279 Ill. 295, wherein the court said at p. 299: . . That being the rule, and the act of 1895 not changing or amending section 98 but merely adopting it, the effect of the reference is the same as though section 98 had been incorporated bodily into the act of 1895, which thereby became a complete and. independent act, free from constitutional objection.”

Plaintiff argues that the liability of the insurer is coextensive with that of the employer. This is not necessarily true because the liability of an employer to pay compensation is fixed by law, whereas that of an insurer is determined by the terms of the policy. Defendant’s counsel suggest that if Brodek had filed a claim with the industrial commission in apt time and had been able to prove the facts alleged in his superior court declaration, he would have been entitled to compensation under the provisions of secs. 2 and 15 (b) of the Occupational Diseases Act, but they say it does not follow that the employer’s liability to pay that compensation would be covered by the policy issued by defendant, and we think this position is entirely sound.

It is quite evident that Brodek’s demand made in his suit filed against the Dearborn Glass Company was not a claim for compensation, and therefore his employer’s liability in that suit was not covered by paragraph 1 (a) of the policy. Plaintiff’s counsel takes the position that Brodek in his declaration stated such facts as would have supported a claim for compensation within the coverage of the policy, and that it was therefore the duty of defendant in this case to defend that prior suit on behalf of its assured. The fallacy of this argument lies in the fact that paragraph 1 (a) obligates the insurer to pay promptly to anyone entitled thereto the compensation provided for in the compensation act, and that Brodek did not by virtue of his suit in the superior court become entitled to compensation because the making* of a claim for compensation is jurisdictional, and before a party may become entitled to compensation such a claim must be made. This Brodek failed to do. It was so held in Lewis v. Industrial Commission, 357 Ill. 309, wherein the court said (pp. 312, 313): “The making* of a claim for compensation within the prescribed period is jurisdictional and a condition precedent to the right to maintain a proceeding* under the statute. ... No special form of claim for compensation is prescribed and the claim need not be in writing, but it must apprise the employer that the employee has sustained injuries of such a character as to entitle bim to compensation and that a claim therefor will be made. . . . (Italics ours.) Likewise, in Bushnell v. Industrial Board, 276 Ill. 262, the court said (p. 264): “. . . It is not claimed that in either of the conversations it was intimated to the foreman of plaintiff in error that the injury was serious, or that Stewart had any cause for or intention of making* a claim for compensation under this act on account of such injury, . .

It appears evident from the BusJmell and the following other cases announcing the same rule that a claim for compensation must not only apprise the employer of the nature of the injuries but 'must contain also a statement that the employee is claiming workmen’s compensation. (Northwestern Malt & Grain Co. v. Industrial Commission, 313 Ill. 534, 538; Haiselden v. Industrial Board, 275 Ill. 114, 116; Inland Rubber Co. v. Industrial Commission, 309 Ill. 43, 48.)

The requirement that a claim for compensation be made is the same whether the employee’s right exists under the compensation act or under the Occupational Diseases Act, inasmuch as both statutes provide in effect that no proceeding for compensation shall be maintained unless claim for compensation has been made within the time fixed by the statute. In this proceeding, for some reason not explained in the record, Brodek filed his action at law instead of making a claim for compensation after the lapse of a year and a half following the termination of his employment, and at that time he would have been barred from prosecuting a case before the industrial commission under the limitations of the statute. Had he filed a claim with the industrial commission at a time beyond the limit allowed by the statute, the insurer, although it might have been called upon to defend, might have raised that circumstance as a defense. The fact remains, however, that no claim for compensation was ever made by Brodek, and in the absence of such a claim there was no duty to pay compensation under the provisions of paragraph 1 (a). Consequently, even if Brodek had recovered a judgment against the Dearborn Glass Company, it is extremely doubtful if defendant would have been required to pay that judgment. The law being well settled that there is no duty upon the insurer to pay compensation under paragraph 1 (a) until the claim therefor had been made, we think it follows that if the indemnity company had defended Brodek’s suit it would not have been required to pay compensation to him, because the amount due under any judgment that might have been entered would not have been due under the Workmen’s Compensation Act.

But plaintiff’s counsel contend that the' filing by Brodek of an action at law based upon certain sections of the Occupational Diseases Act is tantamount to making a claim for compensation under the compensation act or under the Occupational Diseases Act. It has been held, however, that the filing of an action under some statute other than the compensation act cannot be considered as the making of claim for compensation. In Minor v. E. I. DuPont De Nemours & Co., 164 Tenn. 226, 47 S. W. (2d) 748, the court was required to determine whether a'claim for compensation had been filed within the year. Plaintiff in that suit caused a summons to be served upon defendant requiring it to answer “in an action to his damage in the sum of five thousand dollars for personal injuries.” In holding that the commencement of such a suit for damages did not constitute 'the making of a claim under the compensation act, the court said, pp. 230, 231: “The action of petitioner in causing the issuance and execution of the summons, on June 19, 1930, cannot be given effect or treated as the filing of a ‘claim for compensation.’ The summons followed the form of an ordinary action for damages for personal injuries, and would have supported a declaration of a common-law right of action for damages. It conveyed no notice either to the court or the defendant that the injury sustained by petitioner arose out of his employment by defendant, or that a claim for compensation under the act of 1919, rather than damages under the common law, would be the subject of the declaration or petition to be filed.” (Italics ours.)

The same question arose in Georgia Casualty Co. v. Ward (Tex. Civ. App.), 220 S. W. 380, and also in Cruse v. Chicago, R. I. & P Ry. Co., 140 Kan. 704, 38 P. (2d) 672, and in both instances it was held in effect that a suit at law which specifically claims compensation under the Workmen’s Compensation Act was not a claim for compensation. Hill v. Kerens-Donnewald Coal Co., 210 Ill. App. 560, holds in effect that a claim for compensation cannot be maintained in a court of general jurisdiction. It appears reasonably clear that Brodek, by filing suit against his employer, disavowed any rights under the compensation act or under sec. 2 of the Occupational Diseases Act, and under the foregoing decisions he cannot now assert that such a claim for compensation was made as to require the indemnity company to make payment to him under paragraph 1 (a).

Plaintiff’s counsel characterize Brodek’s failure to assert that he was entitled to compensation as “a mere procedural requirement,” but the statute and decisions interpreting it are plain and his effort to collect damages at law negatived any contention now made that the assertion of a claim for compensation ought to be considered as a mere formality.

From the conclusion that Brodek’s claim did not fall within the provisions of paragraph 1 (a) because it whs not a claim for compensation, we pass to a consideration of the question whether it was embraced within the provisions of paragraph 1 (b), which reads as follows: “One. (b) To Indemnify this Employer against loss by reason of the liability imposed upon him, by law for damages on account of such injuries to such of said employees as are legally employed wherever such injuries may be sustained within the territorial limits of the United States of America or the Dominion of Canada. In the event of the bankruptcy or insolvency of this Employer the Company shall not be relieved from the payment of such indemnity hereunder as would have been payable but for such bankruptcy or insolvency. If, because of such bankruptcy or insolvency, an execution against this Employer is returned unsatisfied in an action brought by the injured, or by another person claiming by, through or under the injured, then an action may be maintained by the injured, or by such other person claiming- by, through or under the injured, against the Company under the terms of this Policy for the amount of the judgment in said action not exceeding the amount of this Policy.” This coverage provision of the policy can be disposed of without an extended discussion because plaintiff admits (on p. 43 of his brief) that he is “not relying upon the provisions of One-(b), although in our argument we shall refer to this provision in passing.” Obviously, the reason for this position is that a claim under this paragraph of the policy would bring plaintiff in conflict with the decision in Belleville Enameling & Stamping Company v. United States Casualty Co., 266 Ill. App. 586, wherein the Supreme Court later denied certiorari (266 Ill. App. XV). In that case defendant had issued to plaintiff a policy which appears to have been identical in its provisions with the one involved in this case. Several employees brought action against the assured under sec. 1 of the Occupational Diseases Act, alleging that they had contracted silicosis during their employment. The insurer refused to defend and judgments were obtained or settlements made, which were paid* by the assured who then sued under the indemnity provisions of paragraph 1 (b). The claims made by the employees were for occupational diseases and not for accidental injuries. The court held that there was no coverage under the policy, relying upon paragraph 7, which is identical in its wording with the same paragraph of the policy herein involved, and provides: “Seven: This agreement shall apply only to such injuries so sustained by reason of accidents occurring during the Policy period limited and defined as such in Item 2 of said Declarations.”

Other cases in this State have consistently held that an occupational disease is not an accidental injury. In Labanoski v. Hoyt Metal Co., 292 Ill. 218, which was a suit for damages caused by an occupational disease contracted by an employee, the court said that the words “accidental injury or death,” are used and are to be understood in their popular sense; that an occupational disease, such as lead poisoning, does not occur suddenly, but is a matter of slow development, and the Occupational Diseases Act was passed for the protection of employees from such diseases. The same conclusion was reached in Peru Plow & Wheel Co. v. Industrial Commission, 311 Ill. 216, where a claim was lodged under the compensation act for disability resulting from tuberculosis contracted by an employee alleged to have resulted from working as a machinist operating a lathe which caused a fine dust that super-induced the disease. The court said that occupational diseases are not covered by the compensation act; that “an accident, as distinguished from an occupational disease, as the former is contemplated under the Compensation Law, arises by some definite event the date of which can be fixed with certainty, but which cannot be so fixed in the case of occupational diseases,” and »that in order that the disability be by reason of an accidental injury or the result of an accident it must be traceable to a definite time, place and cause. Brodek’s declaration does not allege that he suffered such injuries as to justify a claim against his employer within the coverage provided by paragraph 1 (b), and his counsel, evidently realizing this, have preferred to rely on the coverage provisions of the policy provided in paragraph 1 (a).

The remaining contention of plaintiff, and perhaps the principal ground upon which he seeks to recover, arises under the provisions of paragraphs 3 and 4 of the policy, which read as follows: “Three. To Defend, in the name and on behalf of this Employer, any suits or other proceedings which may at any time be instituted against him on account of such injuries, including suits or other proceedings alleging such injuries and demanding* damages or compensation therefor, although such suits, other proceedings, allegations or demands are wholly groundless, false or fraudulent.

“Four. To Pay all costs taxed against this Employer in any legal proceeding* defended by the Company, all interest accruing* after entry of judgment and all expenses- incurred by the Company for investigation, negotiation or defense.”

The gravamen of plaintiff’s contention with reference to these two paragraphs is that it was the duty of the indemnity company to defend, irrespective of its duty to pay compensation or to indemnify the employer, and that such duty was broader than either of the other two. It is argued that the use of the terms “groundless, false or fraudulent,” imposes upon the insurer the duty to defend any action which might be instituted against the insured, irrespective of its basis, and also that the duty to defend existed even though the policy did not extend coverage to pay a judgment or to indemnify the employer. Among* the numerous cases cited by plaintiff to substantiate his position that the indemnity company was required, under paragraph 3, to defend all suits, whether “groundless, false or fraudulent,” we find none imposing upon an insurer the duty to defend a suit which is not covered by the indemnity provisions of the policy. Most of the decisions cited are cases in which' the suits' filed against the various assureds specify as one ground of damage a type of liability covered by the policy. Several of the cases involve situations in which several bases of liability were asserted, some of which fell within the coverage provisions of the policies and others of which did not.

After a careful consideration of the authorities cited by the respective parties, we have reached the conclusion that defendant’s position, that it was not obliged to defend a suit predicated upon a ground of liability not covered by the policy, is supported by abundant authority. What is meant by the requirement that the insurer undertakes to defend the suit whether “groundless, false or fraudulent!” If a plaintiff alleges in his pleadings that he is entitled to recover upon a ground of liability covered by the policy, then of course the defendant’s insurance carrier must defend the suit; it cannot avoid that duty by determining upon its own investigation that the ground of liability alleged cannot be substantiated. If the suit is without merit it is the duty of the insurer to defend and demonstrate that fact to the court or jury. And, as defendant’s counsel point out, if the declaration filed should be based upon a ground of liability covered by the policy, but it should turn out at the trial that the true basis of liability, if any, is one not covered, then the indemnity company could have the ease dismissed on the ground of variance. Defendant contends for the rule that if the insurance carrier would be required-to pay a judgment or indemnify the insured in the event the plaintiff prevailed, then it must defend, otherwise it need not defend, and we believe this rule is sustained by the great weight of authority. The recent case of Fessenden School, Inc. v. American Mut. Liability Ins. Co., decided by the Supreme Court of Massachusetts in 1935, and reported in 289 Mass. 124, 193 N. E. 558, supports this rule. In that case plaintiff operated a school for boys and employed one Ada Gauthier as head waitress. She was paid $50 a month and given free room and board. Plaintiff carried an insurance- policy with defendant designated as a “standard Workmen’s Compensation and Employers’ Liability Policy,” by which the insurance company agreed with the employer, as respects personal injuries sustained by employees, to indemnify the employer “against loss by reason of the liability imposed upon him by law for damages on account of such injuries to such of said employees as are legally employed. ... On her way to the bathroom Ada Gauthier fell down a stairway, due to the poor lighting of the corridor that led to the bathroom. She filed a common law action against plaintiff, alleging on one count that she was employed by Fessenden; that by reason of the fact that she was given lodging as part of her pay she became a tenant; and that the Fessenden School negligently failed to keep the premises safe. In another count she alleged that she was an employee, and because of that relationship she became an invitee and was injured because of the defective condition of the premises. Before trial there was an amendment, which removed the allegation that she was an employee. The indemnity company refused to defend and the Fessenden School defended and obtained a judgment in its favor. Thereafter Ada Gauthier filed her claim for compensation which was settled by the defendant insurance company and subsequently the Fessenden School sued defendant for the cost of defending the common law action. In discussing the duty of the indemnity company to defend the Gauthier suit, the court said (p. 130): “It is plain that the insurance company would not have been bound under its policy to indemnify the plaintiff if the plaintiff Ada Gauthier had recovered judgment on her declaration against the Fessenden School, Incorporated, as amended. We think the contention of the defendant is sound, that the obligation of the defendant insurance company is to be determined by the allegations of the declaration and it is not required to defend if it would not be held bound to indemnify the defendant in the action if the plaintiff prevailed upon the allegations of the declaration.” (Italics ours.) “Ocean Accident & Guarantee Corp. v. Washington Brick & Terra Cotta Co., 148 Va. 829, 139 S. E. 513; Fulton Co. v. Massachusetts Bonding & Ins. Co., 138 Tenn. 278, 197 S. W. 866; Bloom-Rosenblum-Kline Co. v. Union Indemnity Co., 121 Ohio St. 220, 167 N. E. 884; United States Fidelity & Guaranty Co. v. Yazoo Cooperage Co., 157 Miss. 27, 127 So. 579; United States Fidelity & Guaranty Co. v. Baldwin Motor Co. (Tex. Com. App.), 34 S. W. (2d) 815; Fidelity & Casualty Co. of New York v. Stewart Dry Goods Co., 208 Ky. 429, 271 S. W. 444, 43 A. L. R. 318.”

In the Massachusetts case the court obviously held that no coverage existed because after the declaration was amended the suit was based upon the relationship of landlord and tenant and not that of employer and employee. As we view Brodek’s suit in this proceeding, his claim did not fall within the indemnity provisions of paragraph 1 (b) because it did not allege that an accidental injury had occurred, nor did it fall within the provisions of paragraph 1 (a) because it was not a claim for compensation, and, just as no duty rested on the insurance carrier in the Massachusetts case to pay any money under the indemnity provisions of the policy, so in this proceeding the insurance carrier had no duty to indemnify the glass company under the provisions of its policy. Apparently the argument in the Massachusetts case was the same as that of the plaintiff in this case, namely, that the defense provisions of the policy were broader than the indemnity provisions, but the court in the Massachusetts case held that the insurer need not defend unless it would have been required to pay a judgment, and we hold that to be the correct rule.

The courts of various other States have approved this doctrine. In Ocean Acci. & Guarantee Corp., Ltd. v. Washington Brick & Terra Cotta Co., 148 Va. 829, 139 S. E. 513, defendant had issued a policy of compensation and employers’ liability insurance containing a defense clause precisely the same as the one in this case. An employee of plaintiff, who was under age and therefore illegally employed, was killed, and a common law action was brought for his death. The insurance company withdrew from the defense, and in holding that no duty to defend existed, the court said (p. 843): “It is contended, however, by counsel for the brick company, that the insurer was bound by the terms of its policy to defend all suits and actions, or other proceedings, instituted against the employer; basing the argument in this respect upon the third clause of the policy. . . . It is true that the provisions of the policy alluded to may have the effect of binding the insurer to defend all suits, although ‘such suits, or other proceedings, allegations, or demands are wholly groundless, false or fraudulent, ’ as stated in the policy. It is scarcely logical to hold that this provision concerning the right and obligation to defend the suit, which is often contained in the indemnity policies, would be intended to bind the insurer to take charge of and defend a suit in which, under the terms of the policy, it had no interest. ...”

In Lunt v. Aetna Life Ins. Co., 261 Mass. 469, 159 N. E. 461, the court, in discussing the provisions of a similar policy, held (p. 472): “As we construe the policy, the insurance company was not obliged to defend actions not covered by the policy. Its undertaking in this respect was limited to the defense of actions brought against the insured for actions which were covered by the policy. ’ ’

In United Waste Mfg. Co. v. Maryland Casualty Co., 85 Misc. 539, 148 N. Y. Supp. 852 (affirmed 169 App. Div. 906, 153 N. Y. Supp. 1148) defendant had issued a policy of employer’s liability insurance to plaintiff, who was sued by an employee. The indemnity company refused to defend because plaintiff was illegally employed. The court held that defendant was within its rights, and said (148 N. Y. Supp. 858): “The defendant was obliged to investigate and defend all suits brought against the insured, even if groundless, . . . But that requirement did not, and could not, call upon the defendant to defend an action for which under the terms of the policy it was not liable. That is not what is meant by the provision with reference to defending suits even if groundless.”

Upon oral argument plaintiff’s counsel cited and relied on the case of Oscar Heineman Corp. v. Standard Surety & Casualty Co. of New York, which had then not been published but may now be found in 289 Ill. App. 358. In that case an employee’s suit against the employer was based upon sec. 1 of the Occupational Diseases Act. Upon the refusal of the indemnity company to defend, the employer interposed a defense and then sued the insurer for attorney’s fees and expenses. The court held, under provisions similar to those contained in the- policy in this case, that it was the duty of the insurer to defend. That case, however, is readily distinguishable from this proceeding-, by reason of the fact, which does not appear in the opinion but is set forth clearly in the record, that the indorsements on the policy in the Heineman case specifically covered the liability of the insured under the Workmen’s Compensation Act and also under both secs. 1 and 2 of the Occupational Diseases Act, whereas in this proceeding the policy expressly limits the coverage to the liability of the assured under the Workmen’s Compensation Act.

From the various decisions hereinbefore quoted and others discussed in defendant’s brief we hold that the language of the policy requiring insurer to defend suits which may be instituted against the employer must he read in connection with the fundamental contractual obligation appearing upon the face of the contract between the parties. In this proceeding the insurer agreed to indemnify the employer only for accidental injuries, or for compensation, and Brodek’s suit does not come within the category of either of these coverage provisions of the policy and therefore there was no obligation on the part of the indemnity company to defend.

We find no convincing ground for reversal. The judgment of the municipal court is affirmed.

Judgment affirmed.

S canean and John J. Sullivan, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    James F. Kelly, Appellee, v. The Retirement Board of the Firemen’s Annuity and Benefit Fund of the City of Chicago, Appellant.
    Gen. No. 39,462.
    Opinion filed November 16, 1937.
    Barnet Hodes, Corporation Counsel, and George F. Mulligan, Assistant Corporation Counsel, for appellant; George F. Mulligan, Assistant Corporation Counsel, of counsel.
    James W. Breen, of Chicago, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

James F. Kelly filed in the superior court a petition for a writ of certiorari directed to the Retirement Board of the Firemen’s Annuity and Benefit Fund of the City of Chicago, respondent, seeking to review the record and proceedings had before the board in the matter of the suspension of payment of petitioner’s pension as a retired fireman. The writ of certiorari issued as prayed and thereafter respondent filed its return setting' forth its complete record in the matter of the suspension of payment of the pension to petitioner. Upon hearing it was ordered and adjudged by the court that the record of respondent be quashed. This appeal followed.

From the record produced by respondent it appears that petitioner was a member of the Chicago fire department from December 1, 1906, until November 15, 1933, and having then attained the age of 55 years voluntarily resigned from the position of engineer in the fire department and was thereafter from November 15, 1933, to March 1, 1936, paid a pension of $120 a month from respondent’s fund.

It further appears from the record that December 29, 1932, while still a member of the fire department, petitioner was certified to the Board of Education of the City of Chicago by the civil service commission for appointment as engineer-custodian, and was appointed to that position on January 3, 1933, laid off March 24, 1933, reinstated October 23, 1933, laid off April 11, 1934, reinstated May 22, 1934, promoted to engineer-custodian, grade 3, January 22, 1935, and that he receives a salary from the board of education of $315 a month.

March 24, 1936, respondent, on the recommendation of its claim committee, directed that the pension check of petitioner be “temporarily withheld,” and that he be requested to appear before the claims committee. Upon his refusal to appear as directed and by reason of his employment by the board of education, respondent, on June 15, 1936, ordered that payment of his pension be discontinued “during such period as he may be employed by the Chicago Board of Education, ’ ’ and that the secretary of the retirement board “procure such information on his past employment as may be necessary for the proper adjustment of his account in this fund.”

It is conceded that petitioner completed his service of more than 20 years and had passed the age at which he became legally" entitled to the annuity granted to him under the provisions of the act. However, the act creating the retirement board (§§ 1 et seq., If 941 (1), ch. 24, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 100.286 et seq.), in providing for the creation of the fund and disbursements to be made therefrom, also provides (§ 34a, If 941 [34], ch. 24, Ill. State Bar Stats. 1935; Jones Ill. Stats. Ann. 100.319) that if any fireman who has retired and been granted an annuity shall re-enter the service, the annuity shall be suspended while such fireman shall be in the service, and shall be resumed when he resigns or retires. It is not contended that defendant re-entered the service of the fire department. He was, however, appointed engineer-custodian by the board of education.

Respondent argues that to allow petitioner, a public servant retired on a pension, to re-enter the public service and to draw both his salary and a pension from the same body of taxpayers is contrary to the spirit and purpose of pension legislation and against public policy. People ex rel. Luthardt v. Retirement Board, 273 Ill. App. 387, wherein the Supreme Court (281 Ill. App. xl) subsequently denied leave to appeal, is cited and relied on chiefly to support this contention. Counsel for the retirement board say that the decision in the Luthardt case has been considered by the trustees of the respondent to be binding upon them and that they have followed that decision in the instant case. In many respects the facts of the Luthardt case are similar to the circumstances in this proceeding. Luthardt applied for and received a pension as a retired police officer of Chicago from June 30, 1915, to September 1, 1930, at which date he was appointed an assistant corporation counsel of Chicag’o, and, as petitioner states in his brief, assigned for service to the police department where he performed his duties as such assistant corporation counsel from September 1, 1930, to July 1, 1932. During this period his pension was suspended by the retirement board. While he was an assistant corporation counsel he received from the city a salary of $500 a month. At the termination of his employment his pension was restored. In addition to his salary he claimed the right to collect the pension covering the same period that he was employed in the corporation counsel’s office. This pension ($75 a month for 22 months) amounted to $1,650. The retirement board disallowed his claim and he thereupon applied for a writ of certiorari in the circuit court, asking that the order of the retirement board, denying him payment of a pension covering the period when he was retired from service, be vacated. The writ issued, but upon hearing the writ was ordered quashed and his petition dismissed. Upon appeal the order of the circuit court was affirmed.

In the foregoing particulars the two cases are similar, but certain circumstances in the Luthardt case differentiate the two proceedings. The city -council had on June 10, 1931, passed an order that no person in the service of the city drawing a pension should at the same time draw a salary from the city by virtue of employment in any of the departments of the city, and that no such person should be so employed unless he first executed and filed a waiver of his pension payments during the period of his employment by the city. Pursuant to this order Luthardt, on July 6,1931, signed a waiver which recited that in view of his appointment in the corporation counsel’s office he waived payment of his pension during the time he received a salary from the city. It was argued that the waiver was invalid because as Luthardt contended it was signed under compulsion and duress, but the court held that there was no compulsion or duress in the matter.

It was contended by respondent in the Luthardt case that the provision requiring the pension to be suspended “while such policeman shall be in the service,” should be construed as meaning in the public service, including service in the office of the corporation counsel. The relator argued, on the other hand, that these words should be construed to mean in the service as a policeman. The court disposed of these contentions by saying, “without developing the point, we are inclined to hold that the latter construction is the proper one. ’ ’ The court, however, was of the opinion that “the respondent stands on much firmer ground when they rely upon the waiver signed by Luthardt.” Following this statement in the opinion the court devoted a considerable portion thereof to a recital of the facts relative to the waiver signed by Luthardt, and concluded that Luthardt wisely chose to accept the larger amount, and since there was no duress or compulsion he was estopped to claim the smaller amount.

It was argued in the Luthardt case, as it is here, that the public policy of the State may be found in its constitution, statutes, judicial decisions and constant practice of the government officials, and that based upon the history and background of pensions it was never intended that one who has retired on pension should be allowed to draw a salary in another branch of the public service. The court expressed itself as being in accord with the argument that the payment of a pension to the relator during the period of his employment in the corporation counsel’s office of the city was against public policy, and pointed out that the statute creating the retirement board indicates the public policy of this State, forbidding the payment of a pension to a policeman while at the same time he receives a salary as policeman, and by implication the court apparently extended the public policy of the State to forbid payment of a pension to a policeman, who at the same time receives a salary in another branch of the public service.

Considering the circumstances of the Luthardt case it is fair to conclude from the opinion of the court that its decision was based principally upon the waiver signed by Luthardt, which, if voluntarily given, estopped him from later claiming his pension while receiving a salary in the corporation counsel’s office. Although the Supreme Court denied Luthardt’s petition for leave to appeal, no reason is stated therefor, and it may well be that the court was of the opinion that the decision of the Appellate Court rested securely on the waiver, circumstances of that case. The Supreme Court has frequently held that a denial of certiorari is merely an approval of the conclusion reached by the Appellate Court, being- in effect an affirmance of the judgment and not necessarily an approval of all the reasons given in the Appellate Court opinion for its judgment. (Marks v. Pope, 289 Ill. App. 558.)

It is conceded that the retirement board, being created by statute, derives its powers solely from the .statute; that the legislature has exclusive and compíete control over matters providing for payment of pensions or annuities; and that pensions being in the nature of bounties of the government which it has a right to give, withhold, distribute or recall at its discretion, the legislature may enact laws directing how pension funds shall be raised, when and to whom they shall be paid, and to make other necessary provisions pertaining to the administration of pensions. Therefore, when the legislature enacts pension laws it becomes the duty, not only of boards administering them, but also of the courts, to enforce the laws enacted according to their plain and unmistakable provisions. The provision in this statute relating* to the suspension of pensions appears to us to be clear and unambiguous, and it therefore requires no construction. It provides that when an applicant becomes a pensioner and reenters the fire service the board has power to suspend payment of his pension during the time he was reemployed “in the service,” and this clearly refers only to service in the fire department. In the Luthardt case, where it-was also argued that the statute ought to be broadly construed, the court said that it was ‘ ‘inclined to hold” that the construction of the language of the statute relating to the suspension of a policeman’s pension upon re-entering the service, means service in the police department.

The law relating* to the duty of courts to give effect to plain statutory enactments has frequently been considered in this State, and is well stated in Stiles v. Board of Trustees, 281 Ill. 636, at p. 642, as follows: “If, then, it is true that such matters are peculiarly and entirely within the control of the legislature so far as the interest of the pensioner is concerned, it is true so far as anyone else is concerned. The legislature having spoken, it is the duty of the courts to enforce the law as enacted, according to its plain and unmistakable provisions. The courts have no power to change the statute and under the guise of judicial construction either bestow or take away a pension, much less is there such power in a civil service commission or in the respondent board, which a/re creatures of the statute and cannot rise above the source of their powers. If, as contended by counsel for appellee, the pension roll is a roll of honor, it is for the legislature, and no other governmental agency, to prescribe the conditions for being on such roll.” (Italics ours.)

Roddy v. Valentine, 268 N. Y. 228, is the only authority other than Luthardt case cited by either of the parties which is at all similar to the circumstances of this proceeding. There the petitioner had retired from service and was granted an annual pension to be paid from a fund created by a statute similar to ours. Under the provisions of the statute the payment of the pension could be suspended temporarily “if the pensioner takes office, employment or position under the State or City of New York or any of the counties included within said City.” After being awarded a pension of $1,250 per annum he was employed as chief of police of the city of Long Beach, New York, for a period of 15 months. During that time payment of his pension was suspended, and he thereupon brought suit to recover the unpaid amount. The question presented was whether the statute affected his right to receive his pension during the time he was employed by the city of Long Beach, and it was held that where the statutory conditions for retirement existing when application is made have been met, and the award of the pension or benefit has been made, or as of right should have been made, “the interest becomes vested and takes on the attributes of a contract, which in the absence of statutory reservations, may not legally be diminished or otherwise adversely affected by subsequent legislation.” The court recognized the incongruity of allowing the pensioner to draw a pension as a retired policeman from the annuity fund in New York city and at the same time a salary as an active policeman in a neighboring city, but said that that was a right granted or at least not denied to him under the statute when he retired, and “we take the statute as we find it.”

If it be incongruous for a retired employee to receive a salary in another branch of the service after his retirement as well as his pension, that is a matter for the legislature to remedy. It has frequently been held that to impose conditions other than those imposed by the legislature would be to change the law by judicial construction, and therefore we do not feel justified in holding that it violates the public policy of the State to permit petitioner to draw the salary in question and at the same time receive a pension annuity under the statute. The statute in question was purely a legislative enactment, and it is for the legislature to amend it if it becomes subject to abuses that contravene the public weal.

For the foregoing reasons the order and judgment of the superior court should be affirmed and it is so ordered.

Order and judgment affirmed.

Scanlan and John J. Sullivan, JJ., concur.


author: Mr. Justice Scanlan

text:
    Mike Callos, Plaintiff, v. Public Taxi Service, Inc. and William Sumberg, Defendants. George Boznos, Plaintiff, v. Public Taxi Service, Inc. and William Sumberg, Defendants. Mike Callos, Appellee, v. Public Taxi Service, Inc., Appellant.
    Gen. No. 39,332.

      Opinion filed November 16, 1937.
    DeWitt Cleland, of Chicago, for appellant; Wyatt Jacobs and Donald L. Vetter, both of Chicago, of counsel.
    Charles R. Aiken, of Chicago, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

On October 8, 1934, Mike Callos sued Public Taxi Service, Inc., a corporation, and William Sumberg, to recover damages for personal injuries sustained in a collision between an automobile in which Callos was a passeng-er and a taxicab owned by Public Taxi Service, Inc. (hereinafter called Taxi Company) and operated by William Sumberg,- its servant. Defendants filed an answer to the complaint. Later, Greorg*e Boznos, the driver of the automobile in which Callos was riding, sued the same defendants to recover for personal injuries sustained and for damage to his automobile. Defendants filed an answer to that complaint, Taxi Company filed a counterclaim against Boznos for damage to its automobile, and Sumberg filed a counterclaim against Boznos for injuries sustained by Sumberg. On motion of Taxi Company and Sumberg the two cases were consolidated for trial. Before the jury, called to try the cases, retired to consider its verdict, on motion of Sumberg Ms counterclaim was stricken. The jury returned a verdict finding Taxi Company and Sumberg not gniilty; and another verdict finding “Plaintiff, George Boznos guilty on Defendant, Public Taxi Service, Inc., a Corporation, counter claim, and assess Defendant damages at the sum of One Dollar ($1.00).” The following interrogatories were also submitted to the jury: “Was the automobile in question, driven by George Boznos, at the time and place in question, wilfully, wantonly and maliciously run upon and against the automobile which William Sumberg was driving?” “Was the automobile in question driven by William Sumberg at the time and place in question, wilfully and wantonly and maliciously run upon and against the automobile wMch the plaintiff Mike Callos was riding in, and which plaintiff, George Boznos, was driving?” To each interrogatory the jury answered, “No.” Callos and Boznos filed separate written motions for a new trial. The court allowed the motion of Callos but demed the motion of Boznos. Judgment followed.

We granted Taxi Company’s petition for leave to appeal from the order “granting a new trial to Mike Callos” against it (Gen. No. 39,332). Callos and Boznos appeal (Gen. No. 39,427) from the judgments “that plaintiff Mike Callos take nothing by his smt and that the defendant William Sumberg go hence without day; that plaintiff George Boznos take nothing by Ms sMt and that defendants, Public Taxi Service, Inc., a corporation, and William Sumberg, go hence without day; and, that defendant Public Taxi Service, Inc., a corporation, recover from plaintiff George Boznos one dollar and costs on said defendant’s counterclaim.” The two appeals were consolidated for hearing.

Each plaintiff assigned 10 points in support of Ms motion for a new trial. Twenty days after the entry of the order granting Callos ’ motion for a new trial, Taxi Comany petitioned the trial judge to state for the record the grounds on which the court relied in granting Callos ’ motion, and thereupon the following occurred :

The Court: “I denied the motion for a new trial as to George Boznos, hut granted the motion for a new trial for Mike Callos, who was a passenger in the car.

Contributory negligence, if any, on the part of the driver of the car in which Mike Callos was injured was not chargeable to the passenger, yet he was involved in such a way that I believe the Jury charged him with the contributory negligence of the driver.

“Further, the Court did not believe the testimony of some of the witnesses produced for the Defendant, Public Taxi Service, Inc.

“The facts and circumstances were such that the Court could not give credence tp some of their statements, and some of their testimony. That’s why Mike Callos, the injured party, was granted a new trial. In my opinion, it was absolutely unfair and unjust to preclude him to a right of re-trial under the facts and circumstances.

“Mr. Hana: (Appearing on Behalf of the Plaintiff, Mike Callos): I urged one other matter in addition to that. That was the fact that Counsel for Defendant, in his argument, incorporated therein facts which were not deduced from the testimony. He persisted in arguing time and again over the fact that there was a slow warning sign; and witness, when interrogated, said he did not know of any such sign.

“Judge Lindsay: That would appear in the record. I could not pretend to recall all the testimony given. The principal grounds for granting a new trial were as stated.

“I think I have fairly stated all things to be stated.

“I discriminated between the driver, Boznos, and Callos — who was a passenger — and whose testimony was definite and specific that he did all an occupant of a car should have done, that is, he warned the driver of the car.

“I think in all probability that if he had made Boznos a Defendant, as well as the Public Taxi Service, there would have been no doubt in the minds of the Jury, but what he ought to have received a verdict for damages.”

In support of its petition for leave to appeal Taxi Company contends: “A. The judgment entered in favor of defendant on its counterclaim against George Boznos is an adjudication of the freedom from negligence of the defendant. B. The judgment entered in favor of William Sumberg and against Mike Callos is an adjudication that Public Taxi Service, Inc. was free from negligence, and forever bars the claim of plaintiff against the defendant.” Callos and Boznos are here appealing from the said judgments, and Taxi Company concedes, as it must, that a reversal of the judgments would dispose of its instant contentions.

Taxi Company does not contend that Callos did not make out a prima facie case against it, but it contends that “the verdict was not against the manifest weight of the evidence,” and, therefore, the trial court erred in granting Callos ’ motion for a new trial. It concedes that the trial court believed that Callos should have recovered, but it argues that “to hold that a new trial should be granted because the trial Court disagreed with the finding of the jury is tantamount to abolishing the jury system”; that the fact that the trial judge did not believe some of defendants ’ witnesses should have no weight in the determination of the motion because it was solely for the jury to pass on the credibility of the witnesses. In Village of LaGrange v. Clark, 278 Ill. App. 269, in passing upon the action of the trial court in granting a new trial, we quoted, with approval, the following from 4 C. J. 830-832, sec. 2813: “ ‘It is generally held that motions for a new trial are addressed to the discretion of the trial court and are not reviewable unless the record shows a clear abuse of such discretion, especially where such motions were based on questions of fact arising on the trial, or on matters which occurred in the presence of the court during the trial, . . . Appellate courts have encouraged trial courts in exercising this discretion to prevent a miscarriage of right and are reluctant to interfere unless the discretion has been exercised capriciously, arbitrarily or improvidently. Even greater latitude is allowed the trial court in granting* than in refusing* new trials, and the appellate court will interfere more reluctantly where the new trial is granted than where it is denied, since in such cases the rights of the parties are not finally settled as they are where the new trial is refused.’ The writer further states (pp. 833, 834; sec. 2816): ‘The action of the trial court in granting or denying a motion for new trial based on the alleged insufficiency of the evidence to sustain the verdict is within the discretion of the court and is not subject to review except where there has been an abuse of discretion, and this fact clearly appears. This principle is especially applicable in case of an appreciable or substantial conflict in the evidence. . . . Where a new trial is granted on the ground of insufficiency of evidence, a stronger case is required to secure a reversal than where it has been denied; and the action of the trial court in granting a new trial will not be disturbed unless the ''evidence palpably supports the verdict. . . .’”

In Wagner v. Chicago Motor Coach Co., 288 Ill. App. 402, the court, after citing, with approval, the above quotations from Corpus Juris, continues (pp. 405, 406):

“(See also Tone v. Halsey, Stuart & Co., 286 Ill. App. 169, and Gavin v. Keter, 278 Ill. App. 308.)

“In the Tone case, where we allowed an appeal from an order granting a new trial and affirmed such order, we said (p. 171): ‘No Illinois case construing this provision of the Civil Practice Act [sec. 77] is cited, but many decisions of courts where similar statutes have been enacted are cited to the effect that only where the trial court has abused its discretion or proceeded upon some clear or manifest misapprehension of a supposed controlling rule of law, will an order for a new trial be reversed. Even in such cases,- decisions indicate courts are reluctant to reverse, and their power to do so is seldom exercised. ’ Citing cases from Kansas, California, Iowa, Oklahoma, Florida, Pennsylvania and Washington.”

In Gavin v. Keter, supra, we said (p. 315): “In'passing upon the merits of the instant contention it must be borne in mind that this is an appeal from an order of the trial court granting a new trial. If judgment had been entered upon the verdict and the appellees were here claiming that the evidence did not warrant the verdict, the question of the preponderance of the evidence would not arise in this court and we would not be warranted in disturbing the verdict of the jury unless the verdict was clearly against the manifest weight of the evidence. But, under the new Practice Act, Cahill’s St. ch. 110, par. 129 et seq., this appeal concerns the action of the trial court in granting a new trial.' A trial court has more latitude than this court in passing upon the verdict of a jury. The allowance or refusal of a new trial on the weight of the evidence is peculiarly within the discretion of the trial court and he is warranted in granting a new trial if a plaintiff has failed to sustain his claim -by a preponderance of the evidence. In passing upon the question as to whether or not the trial court in such case was justified in granting a new trial, we must bear in mind that there are many things which a trial judge observes on a trial that do not appear from the printed record,— the appearance of a witness, his or her manner of testifying, and other circumstances that greatly aid the trial court in determining the credibility of a witness and the weight, if any, that should be attached to his or her testimony.” (See also Barthelman v. Braun, 278 Ill. App. 384, 388.)

In his statement the trial court said that under the facts and circumstances in the case he could not give credence to some of the statements of defendants’ witnesses “and some of their testimony. That is why Mike Gallos, the injured party, was granted a new trial”; that it would be absolutely unfair and unjust to deprive Callos of a retrial under the facts and circumstances in the case. We are satisfied that the court was fully justified, under the evidence, in granting a new trial to Gallos. However, there were other good grounds urged by Gallos why the motion should have prevailed. Taxi Company argues that we can consider only such grounds as the trial court stated influenced him in granting the new trial. Taxi Company should have made its request when the court passed upon, the motion and the reasons for granting it were fresh in his mind, instead of waiting until 20 days after the entry of the order. The trial court stated that he ‘ ‘ could not pretend to recall all the testimony given, ’ ’ and that he was mentioning only the principal grounds for granting a new trial. Bach plaintiff assigned many grounds why a new trial should be granted bim and each had the right to rely upon all of them in support of his motion, and if 'serious errors, were committed during the trial, as both plaintiffs contend, Gallos would not be deprived of the right to. urge them here, in support of the order granting him a new trial, merely because the trial court did not specifically refer to them in his statement. A number of other grounds urged by both plaintiffs in their motions involve errors that seriously prejudice their cases.

While Sumberg was being examined by counsel for defendants the following took place: “Mr. Jacobs: You understand that if a judgment is entered against you, you can be put in jail? Mr. Hana: I object— that is no concern of the Jury’s. The Court: The jury will disregard it — it is not for counsel to state the proposition of law, nor what the legal effect may be in the case. ’ ’ This improper and highly prejudicial question was put by an experienced lawyer, and the court, in passing upon the objection, not only did not cure the harm done but rather aggravated it. Each complaint contained a count charging ordinary negligence and another charging wilful and wanton conduct. Unless the jury found that Sumberg was guilty under the wilful and wanton count he could not be “put in jail,” even though he failed to pay the judgment. The jury might well have understood, from the question, that Sumberg could be “put in jail” under any verdict that might be found against him. The language of' the court, in passing* upon the objection, was likely to convey to the jury the idea that the question contained a correct statement of the law, but that counsel had not the right to state the law to the jury. It is doubtful if a stern rebuke by the court would have cured the prejudicial effect of the question. That the question was likely to adversely affect Callos’ case against Taxi Company is evident, for if the jury found Sumberg not guilty, because they were influenced by the question, they would then be practically forced to find Taxi Company not guilty.

There were two passengers in defendant’s taxicab. One admitted that he and his fellow passenger had been drinking. The other admitted that he and the other passenger had had a few drinks. Plaintiffs introduced as a witness John A. Blake, a practicing attorney at the Chicago bar for many years. He testified that Sumberg stated to him, inter alia, that he, Sumberg, was pretty drunk the night of the accident. Blake had represented Boznos in certain matters but was not an attorney of record in the instant case and did not appear as a counsel for Boznos in the trial. However, prior to the time that Blake was called as a witness plaintiffs’ attorney requested to have the record show that Blake was withdrawing’ from the case, and the court granted the request. Blake was the only attorney who testified. The court gave to the jury, at the instance of defendants, the following instruction: “The court instructs the jury that while it is not proper practice for an attorney connected .with a case to appear as a witness in his client’s behalf, he is not, for that reason, incompetent, although his testimony should be given little weight.”

Plaintiffs contend, and with good reason, that they were seriously prejudiced by the giving of this instruction. Our Supreme Court has often stated that while it is not good practice for an attorney to testify in a case in which he is employed, his testimony is not incompetent, and the fact that he is so employed goes only to the weight of his testimony. (See Wollschlaeger v. Mix, 364 Ill. 207; Wilkinson v. People, 226 Ill. 135.) In the last case one of the attorneys who appeared as counsel for the People and argued the case orally in the Supreme Court was a leading and material witness on behalf of the prosecution in the court below. In Ross v. Demoss, 45 Ill. 447, the court said (p. 449): “On the trial below, the evidence was conflicting, but it seems to preponderate in favor of the decree. The weight of the evidence of Garner is somewhat impaired from the fact, that he was proved to have been one of the attorneys in the case, and had a conditional fee, dependent on the result of the suit. It is of doubtful professional propriety for an attorney to become a witness for his client, without first entirely withdrawing from any further connection with the case; and an attorney occupying the attitude of both witness and attorney for his client, subjects his testimony to criticism if not suspicion, but where the half of a valuable farm depends upon his evidence, he places himself in an unprofessional position, and must not be surprised if his evidence is impaired. While the profession is an honorable one, its members should not forget, that even they may so act, as to lose public confidence and general respect.”

Taxi Company contends that the instruction correctly stated the law applicable to Blake’s testimony. The only case cited in support of the contention is Wright v. Buchanan, 287 Ill. 468, where the court said (p. 474): “This court has repeatedly said that when an attorney himself furnishes, by his own testimony, evidence to help himself succeed on the trial, such evidence will be closely scanned; that while it is not proper for an attorney, in a ease he is conducting, to testify on his own behalf, he is not for that reason incompetent, and if he chooses to testify he may do so, but his testimony should be given little weight. (Wilkinson v. People, 226 Ill. 135; Grindle v. Grindle, 240 id. 143; Wetzel v. Firebaugh, 251 id. 190 ; Rice v. Winchell, 285 id. 36.) ” In weighing the evidence in particular cases our Supreme Court has frequently used like language in passing upon the testimony of at attorney who conducts a case and also appears as a witness in behalf of the client he represents, but it has never held, so far as we are aware, that an instruction like the one in question was proper to give to a jury in such a case. In Judy v. Judy, 261 Ill. 470, the court held that the practice of attorneys appearing as witnesses and attorneys in a case is regarded as a professional impropriety, and the jury may be instructed that they may consider their interest in the case as attorneys in determining their credibility, but that it is not proper to instruct the jury as to the professional propriety of the attorneys’ becoming witnesses in the case. The instruction in question assumes that Blake was connected with the case, whereas the record affirmatively shows that he was not. A fortiori, plaintiffs’ counsel had the record show the withdrawal of Blake as an attorney in the case before he testified. It would be a serious and unwarranted reflection by the courts on the members of an ancient and honorable profession if an instruction like the instant one could be properly given in a case where an attorney had withdrawn. Where an attorney in a case testifies, his interest, like the interest of any other witness, may be considered by the jury in determining his credibility and the weight that should be attached to his testimony. At the request of defendants the jury were instructed that in determining the credibility of any witness they had the right to take into consideration his interest in the result of the suit. That instruction .sufficiently covered the testimony of Blake and all other witnesses. In Judy v. Judy, supra, the court restated the long established rule that an instruction should not single out a particular witness and instruct the jury specially as to him.

The court, at the instance of defendants, gave the following instruction to the jury: “The Statute of this State provides that no person shall drive an automobile upon any public highway at a greater speed than is reasonable and proper, having regard to the traffic and the use of the ways, or so as to endanger the life or limb or injure the property of another, and if you. believe from the evidence that the plaintiffs’ automobile in question at the time of the collision was being* driven at a greater speed than was reasonable and proper, having regard to the traffic and use of the street at the place in question, or was driven so as to endanger the life or limb or injure the property of another and that thereby the driver of the plaintiff’s automobile contributed to the injury complained of, then under the law you should find the defendants not guilty.” •

_ This mandatory instruction directs the jury to find both defendants not guilty if the jury believe from the evidence that Boznos at the time of the collision drove the car at a greater speed than was reasonable and proper and thereby “contributed to the injury complained of. ’ ’ Such an instruction might have been proper if Boznos was acting as the agent of Callos, but there is no evidence to show such agency. By reason of this instruction the jury were forced to find against Callos even though, they believed that he was not guilty of negligence, provided they believed that Boznos drove the car at a greater speed than was reasonable and proper and thereby “contributed to the injury complained of.” The undisputed evidence is that Callos, just before the collision, warned Boznos to watch out for the taxicab. Defendants did not see fit to cross-examine Callos.

“In Christensen v. Johnston, 207 Ill. App. 209, the court quoted with approval the following* language from Clarke v. Connecticut Co., 83 Conn. 219: ‘What conduct on the passenger’s part is necessary to comply with his duty must depend upon all the circumstances, one of which is that he is merely a passenger having no control over the management of the vehicle in which he is being* transported. Manifestly, the conduct which reasonable care requires of such a passenger will not ordinarily, if in any case, be the same as that which it would require of the driver. While the standard of duty is the same, the conduct required to fulfill that duty is ordinarily different because their circumstances are different.’ ” (Rhoden v. Peoria Creamery Co., 278 Ill. App. 452, 464.) Several other instructions given at the instance of defendants contain the same vice as the instant one.

Callos contends that other errors, prejudicial to his ease, were committed, but it would unduly lengthen this opinion to refer to them.

As to the appeal of Callos and Boznos: They contend that the judgment finding defendants not guilty and the judgment in favor .of Taxi Company and against Boznos are against the manifest weight of the evidence. We are satisfied, after reading the evidence, that this contention must be sustained. As the consolidated cases may be tried again we refrain from commenting upon the facts and circumstances in the record. Callos and Boznos, in their appeal, also argue that certain errors (heretofore referred to in this opinion) seriously prejudiced their rights and improperly influenced the verdicts of the jury. What we have heretofore said sufficiently shows that the instant complaint of Callos and Boznos is a meritorious one. Justice requires a retrial of the consolidated causes.

The petition for leave to appeal, of Taxi Company, involves only that part of the judgment order of the superior court of Cook county of November 7, 1936, which grants a new trial to Mike Callos. That part of the order is affirmed.

Part of judgment order of November 7,1936, which grants new trial to Mike Callos affirmed.

Friend, P. J., and John J. Sullivan, J., concur.


author: Mr. Justice John J. Sullivan

text:
    People of the State of Illinois, Defendant in Error, v. Morris Levin, Plaintiff in Error.
    Gen. No. 39,494.

      Opinion filed November 16, 1937.
    Harrington & McDonnell, of Chicago, for plaintiff in error.
    Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Blair Varnes, Assistant State’s Attorneys, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

By this writ of error defendant, Morris Levin, seeks to reverse a judgment of the municipal court sentencing him to the house of correction for a term of one year upon the finding of the court that he was guilty of being' the keeper of a house of prostitution.

The information upon which Levin was tried .charged that November 7, 1936, he “was then and there unlawfully and knowingly keeper of a certain house of prostitution and assignation; and place for the practice of fornication, prostitution and lewdness ; such house then and there being situated at 1659 W. Monroe street, in the City of Chicago, County of Cook, State of Illinois, ’ ’ in violation of § 162, ch. 38, sec. 57, Ill. Rev. Stat. 1937; Jones Ill. Stats. Ann. 37.128.

The record discloses that the State presented evidence that on November 7, 1936, about 10 p. m., police officers Frankowski and Rozonski, dressed in civilian clothes, knocked at the door of “a house” located at 1659 West Monroe street, and were admitted by Levin, who asked them if they wanted to see the “girls”; that when they told him “Yes,” he took them into a room where they remained five or six minutes and then led them into another room and told them to ask for “Dorothy”; that when Eozonski asked for “Dorothy,” one Elizabeth Creig said “come this way” and took him into a bedroom where she disrobed and laid down on the bed nude except for a brassiere; that when the other officer, Frankowski, was led into the second room with Eozonski, one Nina G-old said “come on in” and took him into a bedroom where, after going through certain preliminaries and collecting two dollars from the officer, she pulled up her dress or gown exposing herself to the chest and laid down on the bed; that the officers did not have sexual intercourse with the girls, but placed them under arrest; that while they were still in the bedroom waiting* for the girls to dress the officers heard a commotion in the kitchen; that upon opening the door of the room he was in, officer Frankowski saw five or six men who had been sitting in the kitchen running out on the side; that he “grabbed” the defendant, Levin, as he was trying to get out through the side door; that by prearrangement officer Hackett knocked at the Monroe street entrance door of the hotel 12 minutes after officers Frankowski and Eozonski had entered and while the latter were in the bedrooms with the girls ,* .that Levin came to the door and opened it “on a chain”; that when he saw who it was he slammed the door and started to run; and that in about two minutes officer Frankowski came back with Morris Levin in tow and opened the door:

The State presented further evidence that on May 20, 1936, officers Hackett and Parkenson visited the same premises and were admitted by Levin, who told them, to go upstairs where a number of girls were sitting in a room; that the officers were taken into separate bedrooms by two of the girls, who each, after requesting and receiving two dollars from the officer with her, disrobed and laid down on the bed; that neither of these officers had intercourse with the girls but placed them under arrest; that when officer Parkenson rang the front door bell on the occasion of his visit to the premises with officer Hackett, May 20, 1936, Levin admitted them after he had “looked through a little piece of glass in the door and opened the door on a chain,” satisfying himself that they wanted “to see the girls.”

Levin testified in his own behalf that he was in the restaurant business and that he went to the hotel on the evening of November 7, 1936, to look up some people who lived there; that he was drinking coffee and conversing in the kitchen with Elizabeth Creig and Nina Cold when “we heard a buzzer ring- and the clerk at that place was not there ... I am in there very often so when they ring* the bell I walk over to the door, I seen these two officers right there at that time. I didn’t know that they were officers . . . naturally when I asked them what they wish, so the first thing* they ask me for a room ... I walked away from them, I didn’t know what happened. Somebody opened the door . . . they drawed a gun — this officer — . . . and they arrest me ’ ’; and that ‘ ‘ they only asked me for a room” and nothing was said about girls. On cross-examination he testified that he had not been in the restaurant business for four or five years prior to November, 1936, but that he was doing-odd jobs for a living*; that he went to the hotel the night of November 7, 1936, to see one Jack Hayes, who, he said, lived there; that he did not know either Elizabeth Creig or Nina Cold and had never seen them before; that he went into the kitchen, where the two girls were drinking coffee and 11 sat there for a while, ’ ’ conversing with them; that he had gone to the hotel to see Hayes a number of times prior thereto, but never visited him in his room, the location of which he did not know; that when he was there before he met Hayes in the kitchen, which was “the reception room” of the hotel; that he had seen officer Parkenson before; that he was arrested by him at the hotel on another night when the witness had gone there to see Mr. Hayes; and that he does not know who owns or runs the hotel.

Nina Gold and Elizabeth Creig testified that they were in the kitchen drinking coffee when the officers came in with their guns drawn and arrested them. They denied that they went into bedrooms with the officers, asked or received any money from them, talked about intercourse or undressed at any time in the presence of the officers. The two girls were arrested along with Levin and separate informations were filed, charging them with being inmates of a house of prostitution. As heretofore stated, Levin was charged with being keeper of a house of prostitution. The three defendants waived jury trials and were tried together.

The defendant Levin contends (1) that the trial court erred in proceeding with the trial of the three defendants upon separate informations, charging them with separate and distinct offenses; (2) that the court erred in admitting incompetent evidence offered by the State; and (3) that the evidence failed to prove that he was guilty of the offense charged.

As to the defendant’s first contention that the action of the trial court in trying- the separate informations against him and the two girls together constituted prejudicial error, it is sufficient to say that no objection was interposed by Levin to the procedure followed, and since no question was raised in the trial court as to such, procedure it cannot be urged here for the first time. If Levin had objected to being tried with the defendants named in the other informations' and requested a separate trial, the court would undoubtedly have granted his request. But Levin acquiesced in the procedure and his complaint at this time comes too late. In any event there is nothing in the record to show that Levin was prejudiced by being tried with the other defendants. The defendants named in the three separate informations were arrested in the same house and practically at the same time. The offenses charged are of the same class. All three defendants were represented by the same counsel and submitted to the joint trial without objection. While the precise question of the right of a trial court to try together two or more defendants charged with misdemeanors in separate informations has apparently not heretofore been considered or decided by any court of review in this State, no sound reason is advanced or suggests itself why a joint trial of persons charged with separate misdemeanors of the same class is improper where the defendants acquiesce in such joint trial.

It is next claimed that the trial court erred in admitting in evidence the testimony of police officers Frankowski and Rozonski as to their conversations and experiences with the defendants Nina Gold and Elizabeth Creig in the respective bedrooms out of the presence of Levin. No objection was offered to any of their testimony. But even though objection had been made the testimony of the police officers as to what occurred between them and the girls whs admissible to show the character of the premises, and their testimony as to their conversations with the girls was admissible against the latter, who were also on trial.

It is also claimed that the testimony of police officers Hackett and Parkenson as to their conversations and experiences on May 20, 1936, with girls other than the defendants Gold and Creig in the same premises was improperly admitted in evidence. After officer Parkenson had completed his testimony relating to his visit to this place on May 20,1936, defendants ’ counsel stated: “I move that be stricken, it was not in the presence of any of the defendants,” and the court ruled: “All of what ocpurred may stand.” The court’s ruling in effect sustained defendants’ motion to strike Parkenson’s testimony as to his conversations with the then inmates of the house. Officer Hackett’s incompetent testimony as to conversations out of the presence of Levin with the inmates of this house on the occasion of his visit to same on May 20, 1936, was permitted to be received in evidence, but viewed in. the light of all the other evidence in the record we think that the court’s error in this regard was harmless and had no prejudicial effect on the outcome of the trial. The testimony of officers Hackett and Parkenson as to the occurrences between them and the girls in these premises on May 20, 1936, as well as between them and Levin on the same occasion, was competent to show not only the character of the house but Levin’s identity and connection therewith. To prove Levin guilty of the offense charged in the information against him, it was incumbent upon the prosecution to show that the premises in question were operated as a house of prostitution and that he was keeper of same. In discussing the competency of evidence as to prior occurrences under almost identical circumstances in Parker v. People, 94 Ill. App. 648, the court quoting from Cadwell v. State, 17 Conn. 467, said at p. 652: “So, in the present case, we think that the circumstances that certain persons of lewd and dissolute character had, before the time in question, been permitted by the accused, habitually to resort to his house for the purpose of prostitution, furnished a legitimate ground to infer, that when it was subsequently allowed to be resorted to, by the same persons and those of a similar character, it was for the same purpose. The- testimony being relevant to prove a material fact in the case, was properly received.”

In a prosecution for keeping a house of ill fame, the practice of prostitution in such house other than at the time charged may be proved, as in such cases guilt must ordinarily be established by circumstantial evidence. (People v. Berger, 284 Ill. 47.)

As to the contention that the prosecution was improperly allowed to show the reputation of the defendant Levin, it is only necessary to say that no attempt was made to prove his reputation. What did occur was that one of the police officers made an irresponsive reply derogatory to Levin in answer to the question: “Now, what is his business?” The answer was immediately stricken on the motion of the State’s attorney. The question was proper, the irresponsive answer of the witness was immediately stricken and the fact that it was made cannot be considered prejudicial error.

While it is insisted that the evidence failed to prove Levin guilty beyond a reasonable doubt of the offense charged, it must be conceded that the evidence is conclusive that the “hotel” at 1659 W. Monroe street was operated as a house of prostitution, both on and prior to the date alleged. The only remaining question is whether it was sufficiently shown that Levin was the keeper of such house of prostitution. In cases of this character guilt may be shown either by direct evidence, which in most cases is wholly impracticable, or by circumstances from which according to the usual laws of reason and common circumstances guilt is clearly inferable. (DeForest v. United States, 11 App. Cas. [D. C.] 458; People v. Berger, supra.) We have set forth the testimony of all the witnesses somewhat fully and from all the facts and circumstances in evidence we are impressed as the trial court must have been that the guilt of Levin was established beyond a reasonable doubt.

We are of the opinion that the record contains no reversible error and the judgment of the municipal court is therefore affirmed.

Judgment affirmed.

Friend, P. J., and Scanlan, J., concur.