author: Mr. Presiding Justice Friend

text:
    John J. Wolf, Appellant, v. Proviso Hospital Association, Appellee.
    Gen. No. 41,243.

      Opinion filed April 15, 1941.
    William C. Greatman, of Chicago, for appellant; Ode L. Rankin, of Chicago, of counsel.
    William G. Ferstel and Arthur W. Main, both of Chicago, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

Plaintiff sued defendant on a note for $1,000, and interest. Summons, returnable to the June term of the circuit court, was served on defendant May 6, 1939. June 15,1939, plaintiff procured an order of default against defendant and judgment was entered in favor of plaintiff for $1,763.20. Thereafter execution issued and was served July 10. July 14, 1939, defendant, pursuant to notice, petitioned the court to vacate the judgment, alleging, inter alia, that it had not been duly served, and that it was first apprised of the judgment when execution was served upon it. Hearing on the petition was thereupon continued to August 2,1939, and thereafter by a series of continuances, during which the petition was amended and plaintiff interposed his answer thereto, until November 7, 1939, when an order was entered upon the amended petition and plaintiff’s answer, vacating the judgment of June 15, 1939, and requiring defendant to answer the complaint within 15 days. Plaintiff appeals from the order thus entered.

Aside from various considerations relating to the merits of the cause, and the question of valid service, plaintiff’s principal contention is that defendant failed to pay its appearance fee when it petitioned the court July 14 to vacate the default and judgment of June 15,1939; that it did not in fact pay the appearance fee until July 27, 1939, which was 12 days after the judgment became final; and it is therefore urged that the court had no jurisdiction, after term, to vacate the judgment November 7, 1939.

While the case was here pending defendant moved to dismiss the appeal, principally on the ground that the order of November 7, 1939, vacating the default and setting aside the judgment, was interlocutory and therefore not appealable. The motion was reserved to hearing, and because it affects the principal contention made by plaintiff on appeal, namely, that the court had no jurisdiction to vacate the judgment by default of June 15, 1939; we shall consider these two questions together.

Plaintiff relies on par. 51, sec. 33, ch. 53, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 48.034], relating to the payment of fees to the clerk, which contains the following provisions: “At the time of the commencement of every suit at law . . . the party or parties . . . shall pay to the clerk of the court the sum of fifteen dollars . . . which . . . shall be in full payment for all services of such clerk on behalf of the plaintiff or plaintiffs, ... in the progress of such suit, from the commencement to the final termination thereof,” and that “the defendant or defendants . . . before he, she or they shall be entitled to enter his, her or their appearance or file any plea, answer or demurrer in any suit at law or equity, shall pay to the clerk of the court the sum of five dollars . . . which sum, . . . shall in like manner be in full payment of and for all services rendered, or to be rendered by the clerk, for or on behalf of the defendant or defendants ... in or during the progress of such suit to the final termination thereof. . . .”

It is argued by plaintiff that under the latter provision the payment of an appearance fee is a condition precedent to the filing of any plea or motion, and that jurisdiction to hear a defendant depends on payment. Although it is conceded that defendant presented its petition to vacate the judgment 29 days after it was rendered, and therefore within the term, it is argued that since the appearance fee was not paid until July 27, which was 12 days after the term, the court lost jurisdiction to entertain the petition, and even though the hearing on the petition and amendments thereto was postponed by a series of continuances granted, without any break in the continuity of ■these continuances, the court had no jurisdiction on November 7 to vacate the judgment, since no appearance fee had been paid when the petition was presented and within the 30 days.

The contention that the payment of an appearance fee is a condition precedent to the filing of any plea or motion depends upon the interpretation of the quoted provision of section 33, chapter 53 of the Illinois Revised Statutes. The cases relied on by plaintiff, McVey v. Huott, 11 Ill. App. 203, and Schofield v. Thomas, 231 Ill. 114, have no application to the payment of appearance fees in connection with a motion to vacate a default judgment. No eases which are directly applicable to this proceeding are cited by either of the parties. The only analogy that we find in the law relates to that portion of the statute which provides for the payment of jury fees (sec. 33, par. 51, ch. 53, Ill. Rev. Stat. 1939, second paragraph [Jones Ill. Stats. Ann. 48.034]). This part of the statute provides that jury fees, if not paid by plaintiff, ‘ shall be paid by the defendant ... at the time of entering Ms appearance.” By rule 26 (Ill. Rev. Stat. 1939, ch. 110, par. 259.26 [Jones Ill. Stats. Ann. 105.26]), the Supreme Court determined the time of payment of jury fees to be “at the time of the entry of the order opening the judgment,” and not at the time of presenting the motion to vacate. This rule is applicable to cases where judgment had been entered by default and motion was made to vacate the judgment, appear and secure trial by jury. Like the case at bar, this section, and the rule interpreting it, relate to a proceeding after judgment. The words used in the two paragraphs of the section are similar. They both relate to items of cost which if paid in advance of the opemng ■ of the judgment cannot be recovered if the motions are denied. The Supreme Court evidently recognized this difficulty by interpreting the statute with respect to payment of jury fees to mean that such fee should be paid at the time of the entry of the order opening the judgment, and not when the petition was presented to the court. It would obviously be as unreasonable to require payment of an appearance fee before leave is given to appear as it is to require payment of jury fees before the right of a trial by jury is granted by the opening of the judgment.

The evident purpose of the section upon which plaintiff relies is to provide compensation for the clerk’s office in counties of the third class where, due to the volume of litigation both parties must contribute to the burden of operating the office. In other counties only the plaintiff contributes when his bill of complaint .is filed, and no appearance fee is required. As we read the section of the statute, it means that in the ordinary course of litigation, where a defendant has been duly served with summons, and comes into the proceeding as a matter of right, he is required to pay to the clerk of the court a fee of $5 before he becomes entitled to enter his appearance, or to “file any plea, answer or demurrer in any suit at law or equity. ’ ’ In the case at bar, the time within which defendant was entitled to file its answer in the regular course had expired, and judgment had been entered against it by default. It therefore had no standing in court until it had presented to the court by its petition sufficient ground for vacating the judgment and was given leave to come into the case by filing its answer, and until then there was no occasion for payment of an appearance fee.

The record discloses that the order vacating the judgment and granting defendant leave to file its answer was not entered until November 7. It is clear, however, that the petition for leave to appear was presented to the court within 30 days, and continued from time to time until the order of November 7 was entered. Nevertheless, defendant paid its appearance fee on July 27, which was long before the judgment by default was set aside, and we think that a reasonable interpretation of the statute did not require defendant to pay an appearance fee until the court by its order had actually allowed it to come into the case and defend.

Under the circumstances, the court had jurisdiction to vacate the judgment upon a sufficient showing, and its order of November 7, 1939, was not a final order. The courts so held under similar circumstances in Cramer v. Illinois Commercial Men’s Ass’n, 260 Ill. 516; Walker v. Oliver, 63 Ill. 199; Town of Magnolia v. Kays, 200 Ill. App. 122. In these cases orders setting aside defaults and vacating judgments in order to allow defenses, were held to be interlocutory. The reason underlying these decisions is well expressed iCity of Park Ridge v. Murphy, 258 Ill. 365, wherein a default judgment was taken against certain real estate owned by Murphy, who subsequently moved to vacate on the ground that proper service had not been had upon him in accordance with the provisions of the statute, and the court said, “upon a re-trial of the case the court may re-enter the same judgment or modify it or render an entirely different judgment, but until such final judgment is rendered there is no final disposition of the case within the meaning of the statute which allows appeals and writs of' error to review final judgments.” These decisions hold that a judgment, to be final, must terminate and completely dispose of the action, but that an order vacating a judgment and allowing the defendant to appear and defend, is not final.

It would therefore follow that defendant’s motion to dismiss the appeal, being predicated upon an interlocutory and not a final order, should be allowed, and it is so ordered.

Appeal dismissed.

Scahlah and Johh J. Sullivah, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    Village of Broadview, Appellee, v. John Toman and the County of Cook, Appellants.
    Gen. No. 40,809.

      Opinion filed April 15, 1941.
    Thomas J. Courtney, State’s Attorney, for appellants ; Marshall V. Kearney, Jacob Shamberg and Brendan Q. O’Brien, Assistant State’s Attorneys, of counsel.
    Erwin A. Stanicek, of Chicago, for appellee; B. F. Langworthy, of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

An appeal from a summary judgment in the sum of $5,379.50 entered in an action at law brought by plaintiff, appellee, against defendants, appellants, to recover certain sums of money collected by the County Collector of Cook county of instalments of special assessments of the plaintiff Village returned delinquent for the years 1935 and 1936. The suit involves the right of the County Collector to retain out of collections made by him the sum of fifty cents per item for each delinquent special assessment returned delinquent by him and on which he made no collection.

The complaint states that plaintiff is a duly organized municipal corporation, and alleges, in substance, that the County Collector retained $5,455 of $5,626.42 collected by him between August 1,1936, and April 15, 1937, on instalments of special assessments returned delinquent for the years 1935 and 1936; that the Collector remitted the difference, $171.42, to the village treasurer of plaintiff; that defendants are indebted to plaintiff in said sum of $5,455, being fifty cents per item on 10,910 items returned delinquent; that said sums may now constitute a part of the general corporate fund of the County of Cook and in that event said County is indebted to plaintiff for such sum. Defendants’ second amended answer to the complaint admits the retention of said amount, but states, inter alia, that such sum is the amount provided and allowed by the statutes (hereinafter set forth) in such case made and provided as and for the costs of the County Collector in connection with the handling by him of delinquent special assessments for plaintiff; and admits that the County collector has remitted $171.42 to plaintiff. Plaintiff’s reply to the second amended answer of defendants, inter alia, denies the statutory authority to withhold said sum.

Plaintiff served and filed a notice and affidavit for summary judgment, which states that said County Collector withholds and retains in his possession the sum of $5,455 of $5,626.42 collected by him on delinquent special assessments for plaintiff for the years 1935 and 1936; that said sum withheld may now constitute a part of the general corporate fund of the County of Cook, and that in that event the County of Cook would be indebted to plaintiff in said sum, and that no part of said sum has been paid to plaintiff and there are no just deductions, credits or set-offs against the same.

Defendants filed an affidavit of merits, or counter-affidavit, which states that plaintiff is not entitled to a judgment in the sum of $5,455, or in any sum whatsoever, against defendants, or either of them; that said sum was the statutory fee allowed the County Collector and is computed by deducting from any collections for plaintiff made by the County Collector in the handling of the special assessments for the period commencing August 1, 1936, and ending April 15, 1937, a fee of fifty cents per item on 10,910 items of delinquent special assessments handled by the Collector and upon which items no collections were made; that the average number of such delinquent items handled by the County Collector is about 200,000 per year; that in and about the handling of such special assessments said County Collector is required to and does employ many hundreds of employees, and provides for the salaries of the same in order that a proper handling of the delinquent special assessments may be had and the application for judgment and sale may be presented to the court in the time required by law, and the proceedings required by statute in connection with the securing of judgments and sale of delinquent special assessments be carried out by the County Collector as required by law; that the statutes set such fees and require the County Collector to handle delinquent special assessments for the villages and to withhold from the collection of such assessments the amount of fifty cents per item for handling delinquent special assessments; that no part of the sum demanded in the affidavit for summary judgment now constitutes a part of the general corporate fund of the County of Cook and denies that said County is indebted to plaintiff in any sum whatsoever; states that all sums deducted and withheld were immediately paid out by said Collector to reimburse his office and the various other county offices for the expenses incurred in making up and preparing the delinquent real estate list, additional lists for the printer, expenses of the printer for advertising said delinquent lists, for preparing and mailing notices by registered mail, for attending the tax sales and entering judgment as to each tract or lot so advertised for sale, for preparing the records where certain special assessments were withdrawn from sale, for preparing additional records where certain delinquent special assessments were forfeited, and for stamping and marking same in accordance with the notation required therein as to each parcel of land returned delinquent for non-payment of special assessments ; that the amount of costs, including compensation for employees necessary, supplies, printing costs, and the multitude of records required to be kept to record the various statutory steps necessary to advertise and sell such delinquent special assessments, actually exceeded the total sums collected through the allowance of a fee to the County Collector of fifty cents per item for each delinquent special assessment collected by him for the villages, and therefore no surplus existed which could be paid to the corporate fund of the County of Cook; that it has been the custom and usage of the County Collector of Cook county for more than twenty-five years to deduct from any collections made by him for delinquent special assessments a charge or fee of fifty cents,- per item in order to reimburse himself for said statutory expenses, which custom has been followed without protest from said villages or from the City of Chicago for more than twenty-five years, and states that section 94 of the Local Improvements Act shows that the various villages are allowed to add six per cent of the total to the costs of levying a special assessment improvement, which costs are therefore collected from the owners of each lot or tract in advance, and that the fifty cents per item charge will actually be collected by the villages from the property owner of each tract or lot whenever the owner redeems the same from tax sale or forfeiture.

The summary judgment order recites that the cause came on to be heard upon the motion of plaintiff for the entry of a summary judgment upon the complaint, the second amended answer, and the reply of plaintiff, and that the court considered said pleadings and the motion, the affidavit of merits of defendants in opposition thereto, and the affidavit of plaintiff in support of its motion for a summary judgment and, the court having heard the arguments of counsel, allows said motion and orders that plaintiff recover from defendants the sum of $5,379.50, and costs of suit.

The County Collector claims he is entitled to be paid by the Village fifty cents for each of the items of special assessments of the Village returned delinquent for the years 1935 and 1936, which were not paid, were not sold for want of bidders, and were withdrawn from sale by the Village. There were 10,910 such items of assessments returned to the Village and the amount retained by the Collector as fees on all of the said items was $5,455. The services for which fees were claimed by the Collector and which make up the fifty cents are as follows:

“Registered mail notice......... 20(6 per item
Making up judgment record..... 3(6 per item
Making up printer’s list........ 3(6 per item
For securing judgment......... 4(6 per item
Printers’ fee for publication. . . 20(6 per item.”

In support of the first item the Collector cites section 186 of the Revenue Act (Smith-Hurd’s Ill. Rev. Stats. 1935, ch. 120, par. 174; Ill. State Bar Stats. 1935, ch. 120, par. 204, sec. 186 [Jones Ill. Stats. Ann. 119.210]) which reads as follows:

“174. County collector to send notices.] Sec. 186. In all cases except where lands or lots have been forfeited to the State for non-payment of taxes or in counties having a population of 500,000 or more inhabitants for non-payment of taxes or special assessments, two or more years in succession next preceding the application for judgment and order of sale, the county collector shall at least five days before the date of sale of delinquent lands or lots upon which the taxes or in counties having a population of 500,000 or more inhabitants upon which the taxes or special assessments, remain due and unpaid, send a notice by registered mail to the oioner, if known, or if not known, to the person shown by the collector’s book to have paid the taxes or in counties having a population of 500,000 or more inhabitants, the taxes or special assessments on such lands or lots for the previous year, giving notice of application for judgment and sale of such lands or lots, and date of sale, describing the lands or lots, and the amount of taxes or in counties having a population of 500,000 or more inhabitants the amount of taxes or special assessments, together with interest and costs, due thereon. For such notice the county collector shall charge twenty (20) cents to be taxed and collected as costs.”

In support of the second and third items the Collector cites section 21 of the Fees and Salaries Act (Smith-Hurd’s Ill. Rev. Stats. 1935, ch. 53, par. 39; Ill. State Bar Stats. 1935, ch. 53, par. 35, sec 21 [Jones Ill. Stats. Ann. 48.023]) which reads as follows:

“39. Fees of coumty collectors.] Sec. 21. County collectors shall be allowed a commission on all money collected by them and paid to the proper officer, of three (3) per cent in counties of the first class; of two (2) per cent in counties of the second class; of one and one-half (1%) per cent in counties of the third class, excepting on all moneys said county collectors collect for incorporated cities, villages or other municipalities in counties under township organization, upon which said county collectors shall be allowed a commission of one (1) per cent on all moneys collected by them for such cities and paid over by them to the proper officer; and excepting further, in counties having adopted township organization, county collectors shall be allowed on moneys paid over to them by township collectors, as commission on such moneys in counties of first class, only one and one-half (1%) per cent; in counties of second class one (1) per cent, and in counties of third class, only three-fourths (%) of one per cent. In addition to the foregoing, said county collectors shall be allowed, in settlement of state taxes with the auditor, ten cents per mile for each mile of necessary travel in going to and returning from the seat of government for the purpose of paying over such tax. They shall also he allowed for making lists of delinquent real estate, to he filed with the county clerk for judgment, three (3) cents for each traict or lot; a like fee for making delinquent lists for the printer, and for selling lands and town lots ten (10) cents for each tract and three (3) cents for each lot to he charged and collected as costs.”

In support of the fourth item the Collector cites section 3, par. 73, of the Fees and Salaries Act (Smith-Hurd’s Ill. Rev. Stats. 1935, ch. 53; Ill. State Bar Stats. 1935, ch. 53, par. 69, sec. 3 [Jones Ill. Stats. Ann. 48.056]) the material parts of which read as follows:

“73. Fees of county clerks.] Sec. 3 . . .
£ £
“For making transcript of taxable property for the assessors, four cents; for each tract of land or town lot, and for extending other than State and county taxes, four cents, for each tax on each tract or lot, and each person’s personal tax, to be paid by the authority for whose benefit the transcript is made and the taxes extended. And it shall be the duty of the county clerk to certify to the county collector the amount due from each authority for such services and the collector in his settlement with such authority shall reserve such amount from the amount due and payable by him, to such authority.
“For adding and bringing forward with current tax warrants amounts due for forfeited or withdrawn special assessments, for each lot or tract of land described and transcribed, four cents.
“For computing and extending each assessment or installment thereof and interest, four cents on each description, and for computing and extending each penalty, four cents on each description. Said fees to be paid by the city, village, or taxing body for whose benefit the transcript is made and the assessment and penalties are extended, and it shall be the duty of the county clerk to certify to the county collector the amount due from each city, village or taxing body, for such services, and the collector in his settlement with such taxing body shall reserve such amount from the amount due and payable by him to such city, village or other taxing body.
í i
“For noting on collector’s warrant special assessments withdrawn from collection for each tract or lot of land, ten cents. Said fee of ten cents to be charged against the lot assessed in the withdrawn special assessment, when brought forward with current tax or when redeemed by the county clerk. And it shall be the duty of the county clerk to certify to the county collector the amount due from each city, village or taxing body for such fees, each year, and the county collector in his settlement with such taxing body shall reserve such amount from the amount due and payable by him to such taxing body.
C C
“The following fees shall be allowed for services in matters of taxes and assessments, and shall be charged as costs against the delinquent property, and collected with the taxes thereon.
“For entering judgment, for each tract or lot, four cents.
£ £
‘ ‘ The following fees shall be audited and allowed by the board of county commissioners and paid from the county treasury.
£ £ ? ?

As to the fifth item the Collector cites section 22 of' the Fees and Salaries Act (Smith-Hurd’s Ill. Rev. Stats. 1935, ch. 53, par. 40; Ill. State Bar Stats. 1935, ch. 53, par. 36, see. 22 [Jones Ill. Stats. Ann. 48.024]) which reads as follows:

“40. Printer’s fees for advertising delinquent list.] Sec. 22. For printer, for advertising delinquent lists, in all counties, for each tract of land, twenty (20) cents; for each town lot, in counties of the first and second class, ten (10) cents; in counties of the third class, twenty (20) cents, to be taxed and collected as costs.
“The printer shall receive for printing the preamble, the descriptive headings, the affidavit, and any other matter accompanying the delinquent list, the sum of ten (10) cents per line, to be paid by the county.
££ ??

The trial court, after hearing arguments upon the motion of plaintiff for the entry of a summary judgment, rendered a written opinion in which he found in favor of defendants. Thereafter he allowed the parties to file new briefs, and subsequently he rendered a written opinion in which he found in favor of plaintiff. The instant judgment followed the second opinion.

Defendants contend that the fifty cents charges withheld by the County Collector áre fees “allowed” him by the statutes for services rendered by him and that he has the right in his settlement with plaintiff to deduct the fees herein involved, and that said fees are taxed as costs, so that plaintiff can collect from the delinquent taxpayer on behalf of whom it was forced to incur the charges, but that, if the meaning of the statutes involved is in a degree doubtful or open to reasonable debate, then the settled custom and usage of the County Collector for more than twenty-five years in deducting such charges from special assessment settlements with the municipalities with their acquiescence is a contemporaneous construction equivalent to a positive law; that said contemporaneous construction corroborates defendants’ construction of the statute. Plaintiff contends that “the charges in question are not fees that the statute requires or contemplates the village must advance to the collector and county clerk;” that the relevant statutes “are not susceptible of two possible constructions and, therefore, custom and usage have no application.” Both parties agree that in ascertaining the intention of the legislature all relevant parts of the statutes that bear upon the question to be determined must be considered.

The second, third, fourth and fifth items of the Collector’s charge are covered by the Fees and Salaries Act and we will consider them first.

In support of the second and third items in his charge the County Collector argues that section 21, paragraph 39, relates solely to “Fees of county collectors” and that as to each fee the word “allowed” is used. The second and third items are covered by the last sentence in paragraph 39 (italicized by us) and the Collector argues that it clearly appears from the words “a like fee” contained therein that said sentence refers only to “fees” of the Collector; that the words “to be charged and collected as costs” were added merely to give the village the authority to collect the items from the delinquent taxpayer when the latter redeemed the property; that the items in the charge are fees as to the Collector but costs when the village collects from the delinquent taxpayer.

As to the fourth item the County Collector relies upon section 3, paragraph 73, as his authority for deducting* the charge. He argues that the charge for entering judgment for each delinquent special assessment is by the statute termed a “fee;” that the statute also says that “the following fees [including the charge for entering judgment] shall be allowed for services in matters of taxes and assessments.” He calls special attention to the fact that section 3 also provides for “Fees of county clerks,” and provides that as to each of said fees it shall be the duty of the County Clerk to certify to the County Collector the amount due from each authority for such services and the Collector in his settlement with such authority shall reserve such amount from the amount due and payable by him, to such authority, and the Collector insists that it would be an unreasonable interpretation of the statute to hold that the legislature intended that the costs incurred by the County Clerk should be reserved by the County Collector in his accounting with the particular village, but did not intend that the costs incurred by the County Collector should also be reserved by him. The Collector further argues that it clearly appears from the section that the fee “for entering judgment, for each tract or lot, four cents,” is not one of the fees that shall be audited and allowed by the Chairman of the County Commissioners and paid from the County Treasury, but that it is one that shall be charged as costs against the delinquent property and collected with the taxes thereon.

As to the fifth item the Collector calls attention to the fact that while section 22 provides that the twenty cents fee for publication is “to be taxed and collected as costs,” the next paragraph reads that “The printer shall receive for printing the preamble, the descriptive headings, the affidavit, and any other matter accompanying the delinquent list, the sum of ten (10) cents per line, to be paid by the county,” and the Collector argues that the Act shows that when the legislature intends that the county shall pay for any charges it says so in direct language and that as the legislature did not expressly provide that any of the items of the fifty cents charge be paid by the county no other reasonable interpretation of the Act can be made than that the fees in question were to be paid the Collector by the Village. The Collector also calls attention to the fact that the County Board has never made an appropriation to take care of any items such as are contained in the instant charge against the Village.

Plaintiff concedes that “the county collector is allowed certain fees in connection with the levy and extension of the general taxes by the municipality and that these fees are authorized to be deducted by the collector upon settlement with the municipality,” but it argues that “because no such express provisions are provided, with reference to the charges in question, the inference is inescapable; it was not intended that they should be so deducted.” The Collector contends that there is no reasonable ground for distinction between general taxes and special assessments in respect to their extension and collection by him and he calls attention to the fact that certain parts of paragraph 73 expressly allow him to reserve, in his settlement with the municipality, certain fees due the County Clerk for services in re special assessments.

As to the first charge of twenty cents per item for “registered mail notice,” defendants cite section 186 of the Revenue Act, heretofore quoted. The Collector argues that this section should be construed to "mean that he shall charge the municipality involved the twenty cents, and that the words, “to be taxed and collected as costs” were added merely to give the village authority to collect from the taxpayer who is at fault for not paying his taxes and on behalf of whom the village was forced to incur this expense; that the collector incurs this expense only in the first instance and that he is entitled to reimbursement from the municipality in a settlement with such body by reserving such amount from the amount due and payable by him to such village.

While, as we have heretofore stated, plaintiff agrees that the intention of the legislature must be deduced from a consideration of every material part of the relevant statutes it insists that the following language, quoted from said statutes, controls: “ ‘to be charged and collected as costs’ with reference to the first two items of 3c each, ‘to be taxed and collected as costs’ with reference to the third item of 20c, ‘shall be charged as costs against the delinquent property and collected with the taxes thereon’ with reference to the fourth item of 4c, and ‘ shall charge 20c to be taxed andj collected as costs ’ with reference to' the fifth and last item.” Plaintiff argues that the Collector seeks to make out a claim by reading into the statutes provisions that are not there; “that the county collector is allowed certain fees in connection with the levy and extension of the general taxes by the municipality and that these fees are authorized to be deducted by the collector upon settlement with the municipality,” but that if it was the intention of the legislature to allow the Collector to deduct the items of his charge in the instant cause in his settlement with the Village “a provision therefor would have been inserted in the statute ; ’ ’ that the quoted language of the statutes cited by it clearly indicates that the items in the claim of the Collector were intended as charges against the property, and not as charges against the municipality. The Collector contends that the question before this court cannot be determined by a reference only to the particular language in the statutes upon which plaintiff seeks to have the appeal determined and that plaintiff concedes, in its brief, that the intention of the legislature must be deduced from a consideration of every material part of the relevant statutes.

Plaintiff contends that the special assessments collected by the Collector is not the money of the municipality, “but is a trust fund very largely for the 'persons who performed the work of construction or whose land was taken, if any, in the making of the improvement;” that money collected in any particular instalment is a trust fund to be paid out solely to the owners of the bonds payable from the particular in-stalment; that money in the custody of the Village from collections of special assessments is a trust fund. In our judgment, no trust relationship between the County Collector and the bondholders of the Village existed, although a trust relationship would exist between the Village and the bondholders as to moneys in the custody of the Village from collections of special assessments. It will be noted that section 73 specifically provides that the County Collector, in his settlement with the taxing body, shall reserve the amount of certain fees of the County Clerk (in re special assessments) from the amount due and payable by the Collector to such taxing body.

After a careful consideration of the important question involved in this appeal we have reached the conclusion that the contention of plaintiff that it clearly appears from the relevant parts of the statutes that the items in question charged as fees are not contemplated or warranted by the statutes, cannot be sustained. The fact that the able trial judge in his first opinion held with defendants in the matter of the interpretation of the relevant statutes, is not without significance. If it were necessary for us-to determine the question before us from the language of the relevant statutes alone, we would be inclined to uphold defendants’ interpretation of the statutes.

In onr opinion the most plausible argument that plaintiff can reasonably make is that the intent of the legislature “is in a degree doubtful or open to reasonable debate.” But plaintiff could not afford to take such a position upon the motion for a summary judgment because if it did the defense of custom and usage interposed by defendants would then have to be accorded great weight by the trial court in the interpretation of the statutes. If we assume, however, that the intent of the legislature “is in a degree doubtful or open to reasonable debate,” we are then aided in our interpretation of the relevant statutes by the following well-established rule of law:

“It is the province and duty of the courts to determine the meaning and true construction of constitutions and statutes, but when the legislative department, in the enactment of laws, and the executive officers, charged with the duty of enforcing or applying constitutional provisions and statutes, have, by contemporaneous, long, uniform and practical construction of a constitutional or statutory provision, accepted and acted upon it as having a definite and particular meaning, the conclusion so reached and acted upon by the legislative department and by executive officers will, in view of the great injury and injustice which would result from a change in such construction and meaning, be accorded great weight by the judiciary when that department of the government is called upon to construe the law, and will, in general, control, whenever the question is in a degree doubtful or open to reasonable debate. (Bruce v. Schuyler, 4 Gilm. 221; Comstock v. Cover, 35 Ill. 470; People v. Loewenthal, 93 id. 191; People v. Board of Supervisors, 100 id. 495; People v. Fidelity and Casualty Co., 153 id. 25; Boehm v. Hertz, 182 id. 154; People v. Knopf, 171 id. 191; Burke v. Snively, 208 id. 328; 8 Cyc. 736, 737.) The facts disclosed by this record call, as we think, for the application of this doctrine of construetion to the contention here arising for decision, and should control the inquiry as to the true meaning of the constitutional provision under consideration.” (Nye v. Foreman, 215 Ill. 285, 288, 289.)

In the second amended answer of defendants they allege that the statute “regarding the 50c fee involved herein has never been construed by the Supreme Court of Illinois, but that it has been the custom and usage of the County Collector of Cook County, for more than twenty-five years to deduct, from any collections made by him for delinquent special assessments,” a charge or fee of fifty cents per item on the special assessments not collected, “in order to reimburse himself for expenses incurred and advanced by him in advertising and applying for judgment and sale of delinquent special assessments; that this practice or custom has been followed by the County Collector of Cook County without protest from the complainant Village, or from any of the various Villages in the County of Cook, or from the City of Chicago, for more than twenty-five years.” Plaintiff, in its reply to this allegation, does not deny the general custom and usage alleged by defendants, but it asserts that plaintiff protested said custom and usage by instituting a suit, on January 18, 1933, in the Circuit court of Cook County, against the County Treasurer and Ex-Officio County Collector of Cook County, for an accounting as to the fifty-cent items withheld by the County Collector, and that plaintiff, on September 12, 1934, secured a decree in said cause finding that the County Collector was indebted to plaintiff in the sum of $11,550 and costs, and that later, on October 16, 1936, “a Writ of Scire Facias was issued against the County of Cook, a Municipal Corporation, to which writ the County of Cook filed an answer, and that on November 25, 1936, the court found that the County of Cook . . . was a defendant in interest, and that the decree was a direct charge against Cook County, and judgment was entered accordingly against the County.” Under the record we must take as true the allegations of defendants in their second amended answer as to custom and usage. Plaintiff, in the trial court, filed a motion for the entry of a summary judgment in its favor upon the pleadings. It contended in the lower court and contends here that “the statutes here in question are not susceptible of two possible constructions and, therefore, custom and usage have no application.” The trial court allowed the motion and entered judgment. The court held that there was no ambiguity in the statutes and that the relevant provisions of the statutes are plain. If the court was right in so holding he would have been justified in considering the defense of custom and usage pleaded by defendants as immaterial. But had the trial court held that the interpretation of the relevant statutes was in a degree doubtful or open to reasonable debate then the question of custom and usage would necessarily play an important part in the interpretation of the relevant statutes, and he would not have entered the summary judgment.

Defendants contend that “the overwhelming custom of more than twenty-five years’ standing, possibly fifty years- — in continually abiding by special assessment settlements and deductions, indicates conclusively that the City of Chicago and all the Villages in Cook County construed this statute to give the Collector the undoubted right to deduct this 50# charge and that this custom and usage in behalf of the County Collector is a clear indication of what these taxing-bodies understood to be the intention of the Legislature in this instance. ’ ’ This court knows that the City of Chicago and the numerous villages in Cook County have had in the past many able lawyers to represent them, and the action of these municipalities in acquiescing in the custom of the County Collector in making-like charges to the instant ones against said City and Villages over a period of at least twenty-five years must be given great weight in the determination of the meaning of the relevant statutes under consideration. The fact that the County Board has never made appropriations for charges like the instant ones must also be given weight. Interpreting the statutes in question in the light of the general custom and usage, we are satisfied that the County Collector was justified in withholding and retaining from the special assessments collected by him for plaintiff, Village of Broad-view, the sum of fifty cents per item for each delinquent special assessment returned delinquent by him and on which he made no collection. The total amount that the Collector was entitled to retain in his accounting with the Village was $5,455.

Defendants strenuously argue that if the judgment in this case is affirmed it will eventually cost the County millions of dollars and threaten it with bankruptcy, for the reason that the County will then be faced with innumerable suits of a similar nature as each one of the many villages in Cook County will undoubtedly file a suit akin to the instant one against the defendants, and that in view of the custom and usage that has prevailed for many years it would be highly inequitable to subject the defendants to the financial burden that would result from such suits.

Certain other points have been raised upon this appeal but it would unduly extend this already lengthy opinion if we were to comment upon them. None of the points could have the effect of changing the conclusion we have reached.

For the reasons stated in this opinion the judgment of the Circuit court of Cook county is reversed.

Judgment reversed.

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


text:
    Gertrude Webb, Administratrix of Estate of William D. Webb, Deceased, Appellee, v. The Willett Company, Appellant.
    Gen. No. 41,436.
    Opinion filed April 15, 1941.
    Burt A. Crowe and Cassels, Potter & Bentley, both of Chicago, for appellant; Kenneth B. Hawkins and William S. Warfield, III, both of Chicago, and Burt A. Crowe, of counsel.

      Krohn & MacDonald and Sidney Rothblatt, both of Chicago, for appellee; Stuart B. Krohn and Ian P. MacDonald, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

An action brought by the Administratrix of the Estate of William D. Webb, deceased, for damages to his widow and two sons for the wrongful death of plaintiff’s intestate as a result of an automobile accident on September 11,1937. The suit was originally commenced against The Willett Company, a corporation, and John Krett, an employee of that Company and the driver of a truck belonging to The Willett Company that collided with the automobile of plaintiff’s intestate. There was a trial before Judge Cummings and a jury and at the close of all the evidence the court directed the jury to find The Willett Company not guilty. The case was submitted to the jury as to the defendant Krett and a verdict was returned finding him guilty and assessing plaintiff’s damages at $10,000. Judgment was entered upon the verdict against Krett and execution was taken out and returned unsatisfied March 1, 1939. Plaintiff appealed from the judgment entered in favor of The Willett Company. Krett did not appeal from the judgment entered against Mm. The only question involved in that appeal was, Was Krett at the time of the accident a servant or agent of The Willett Company. We held that there was evidence that fairly tended to prove that Krett at the time of the accident was acting within the scope of his authority as a servant and employee of The Willett Company and that the trial court erred in directing a verdict for that Company, and we reversed the judgment in favor of the Company and remanded the cause for a new trial. (See Webb v. Willett Co., 304 Ill. App. 260. Abstract opinion.) There was a second trial of the cause, before Judge Michael Feinberg and a jury, with The Willett Company as sole defendant, and a verdict was returned in favor of plaintiff and her damages against The Willett Company were assessed at $10,000. The Company appeals.

The complaint charged The Willett Company and John Krett with negligence; also wilful and wanton conduct in the operation of the truck. The defendants filed separate answers. The Willett Company denied the charges of negligence and wilfulness, admitted the ownership of the truck and that Krett at the time in question was driving the same, but denied that he was its agent or servant acting in the course of his employment, and denied that he was subject to any orders, supervision or control of The Willett Company at the said time. Krett denied the allegations of negligence and wilfulness, admitted Jhat The Willett Company owned the truck and that he was operating it at the time of the accident, denied that before and at the time of the accident he was the agent or servant of The Willett Company, and denied that he was at that time acting in the course of his employment and subject to any orders, supervision or control of that Company. During the first trial plaintiff dismissed the charge of wilfulness as to both defendants.

Upon the second trial plaintiff’s theory of the case was the same as upon the first trial, viz., that her intestate was driving his automobile north on Damen avenue in a careful manner and at a speed of about twenty to twenty-five miles an hour and that while he was crossing Blue Island avenue where it intersects Damen avenue, at approximately a right angle, the right rear part of the automobile was struck by the front end of a truck belonging to The Willett Company as it was being driven by Krett in a southwesterly direction, in a negligent manner; that Krett at the time and place in question was an agent or servant of The Willett Company and acting in the course and scope of his employment for that Company.

Defendant’s theory was that the truck was not driven by an agent or servant of defendant acting in the course and scope of his employment, but that the truck was taken by Krett from a parking lot across the street from the main offices of defendant at 700 South Des Plaines street, Chicago, without the knowledge, permission or consent of defendant, and that at the time of the accident Krett was not on any business of the Company but was on his way to meet his brother at 3800 West 26th street.

Defendant contends that the court erred in refusing to admit competent and relevant testimony offered by it. It called John Krett as a witness in its behalf. Plaintiff objected to Krett’s testifying on the ground that she was suing as an administratrix and that Krett was not a competent witness by virtue of section 2 of the Evidence Act. The court sustained the objection, whereupon defendant’s counsel offered to prove by Krett, if the latter were permitted to testify, that he was a washer at the garage of the Company at 700 South Des Plaines street; that he knew and had been told that the Company had a rule and regulation in force before and at the time of the accident that no employee, including himself, was permitted or allowed to take any truck or motor equipment from the Company garage or premises for any purpose, unless given permission by the night superintendent or foreman, and unless the number of the equipment was obtained so that it might be checked against him, for the purposes of the Company’s business; that on the afternoon of September 10, 1937, Krett was told by a friend that his younger brother, who had run away from home five years previously, was to be at 3800 West 26th street at about two o’clock in the morning, and that Krett, because he had been partly responsible for the boy’s running away, was intent upon locating his brother and persuading him to return home; that about 1:30 on the morning of the accident Krett, without the knowledge, permission or consent of anyone connected with the Company, went to the parking lot opposite the garage at 700 South Des Plaines street, got into a truck belonging to defendant and started for 3800 West 26th street for the purpose of finding his brother; that he was not engaged at the time of the accident and prior thereto in any business for the Company; was not operating the truck in furtherance of any business for it, and had not been directed to go to any other garage and at the time had no work to do at any other garage, but that this trip was solely for the purpose of locating his brother; that after leaving the garage with the truck he stopped on Halsted street, had a cup of coffee, and then proceeded southwest until he reached Blue Island avenue, and that the accident happened at the intersection of Damen avenue and Blue Island avenue. The offer also contained proposed testimony of the witness as to the manner in which the accident occurred. Counsel for defendant argued to the trial court that Krett, in the second trial, was a competent witness inasmuch as in the first trial there was a final judgment rendered against Krett for $10,000 from which no appeal was taken; that Krett was not a party to the suit upon the second trial and had no right to control the proceedings, to interpose objections or to control the trial in any way, nor would he have the right to take an appeal from any judgment entered in the case; that any interest that he had in the case originally had been definitely determined by reason of the judgment in the first trial and that any result of the second trial, in which the Company was the sole defendant, would not affect Krett’s interest one way or the other. The trial court sustained the objection of plaintiff’s counsel to the offer.

Section 2 of “An Act in regard to evidence and depositions in civil cases,” Ill. Rev. Stat, 1939, ch. 51, par. 2 [Jones Ill. Stats. Ann. 107.068], reads as follows : “No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, . . . when any adverse party sues or defends as the . . . administrator ... of any deceased person . . . unless when called as a witness by such adverse party so suing or defending . . . .” Plaintiff, in her brief, states “that the basis upon which the testimony of the codefendant, John Krett, was incompetent, was not predicated upon the question of his interest but was predicated solely upon the fact that he toas an adverse party in a law suit prosecuted by the administratrix of a deceased estate.” In the foregoing statement the able counsel for plaintiff makes no concession upon the question of Krett’s interest for under the ruling in the well known case of Feitl v. Chicago City Ry. Co., 211 Ill. 279, even if Krett were still an employee of defendant at the time of the second trial, nevertheless, if he were not a party to the suit he might testify for his employer in a suit by the administratrix against the employer, as the employee is not so “directly interested in the event of the suit” within the meaning of section 2 of the Evidence Act as to disqualify him as a witness. As a matter of fact Krett was discharged after the accident and was never thereafter an employee of The Willett Company.

Because of plaintiff’s statement of her position, we are called upon to decide only one question, viz., Was Krett a party to the action upon the second trial of the case. Plaintiff contends that “the mere entry of a judgment against him [Krett], as co-defendant, without dismissing the action as to him, did not terminate his status as a party.” Defendant states, “The competency of a defendant, against whom a final judgment has been rendered in a suit for wrongful" death, to testify on behalf of a co-defendant in a subsequent trial against the co-defendant alone, has never been passed upon by our Supreme or Appellate Courts. The question, however, has been before the reviewing courts of other States which have held in accordance with our contention that such a witness is competent and should be permitted to testify. These decisions hold that the incompetency is removed by the prior judgment in the same manner as though the suit had been dismissed or never commenced against the defendant called as a witness.” Plaintiff contends that the case of Langley n. Dodsworth, 81 Ill. 86, is precisely in point and supports her contention that Krett was not a competent witness under section 2 of the Evidence Act. We áre unable to give that effect to the Langley case. To quote from the opinion therein (p. 87):

“This was assumpsit . . . brought by the executors of John Dodsworth, deceased, against John C. Crabtree, James Langley and Presley A. Rosenberger, on a promissory note made to John Dodsworth. Default was taken against Crabtree and Rosenberger, and Langley pleaded that he executed the note as surety for Crabtree, for his accommodation, and, afterwards, Crabtree applied to Dodsworth to extend the time of payment, which Dodsworth agreed to do, and contracted to extend the time of payment one year if Crabtree would pay one year’s interest in advance and procure Rosenberger as additional security, all which was done, and all without the knowledge or consent of Langley.
“This plea was traversed and issue joined. Langley filed another plea, substantially the same as the foregoing, omitting the averment of an agreement by Crabtree to pay one year’s interest in advance. This plea was also traversed and issue joined.
“The jury found for the plaintiff, assessing the damages at five hundred and thirteen dollars and five cents, for which judgment was rendered. The defendant Langley appeals.
“Appellant’s case was made out, as he insists, by the testimony of Crabtree, one of the defendants, who had been defaulted. An objection was made to the admissibility of his testimony, by the plaintiffs, which was overruled and exception taken.
“We have no doubt Crabtree was not a competent witness for the defendant. He was a party defendant himself, the plaintiffs suing in a fiduciary character, as executors, and came within the interdict of section 2, chapter 51, title ‘Evidence and Depositions,’ R. S. 1874, p. 488. Boynton v. Phelps, 52 Ill. 219; Merrill v. Atkin, 59 id. 19.” (Italics ours.)

It appears, therefore, that there was merely a default taken against Crabtree and Rosenberger. It is elementary law that a defendant who has been merely defaulted is still a party to the suit. As stated in Cairo & St. L. R. R. Co. v. Holbrook, 72 Ill. 419, 422: “The defendant’s rights were not wholly foreclosed by the default. While the default admits every material allegation of the declaration, still, it does not admit the amount of damages. The defendant, on the execution of the writ of inquiry before the court, could not introduce evidence tending to show that plaintiff had no cause of action, but would have the right to cross-examine plaintiff’s witnesses and introduce witnesses on its part on the question of damages, ask for instructions as to the proper measure of damages, and preserve the rulings of the court by bill of exceptions. Chicago and Rock Island Railroad Co. v. Ward, 16 Ill. 522; Cook v. Skelton, 20 Ill. 107.” Krett, of course, had no such rights in the second trial. Plaintiff also cites in support of her position Pipkin v. Tuer, 177 S. W. 983, decided by the Court of Civil Appeals of Texas; also, Genet v. Lawyer, 61 Barb. (N. Y.) 211, 223, 224; Greely v. Willey, 71 N. H. 240; Jenks v. Opp, 43 Ind. 108, 110; and Scherer v. Ingerman, 110 Ind. 428, 443. None of these cases’is in point. Defendant cites two cases from sister States, Clinton Sav. Bank v. Underhill, 115 Iowa 292, and Chase v. Pitman, 69 N. H. 423, in support of its position. While these cases seem to support defendant’s position, we do not deem it necessary to rely upon decisions of the courts of other States in determining the question before us. Two Illinois cases appear to have a bearing upon the instant question: In Rann v. Rann, 95 Ill. 433, Patrick, Thomas and James Rann purchased certain farm lands for' their joint use and had an oral agreement or understanding as to how the property was to be divided. Patrick disappeared and after he had been absent several years Thomas and James took over or appropriated to themselves what would have been Patrick’s share under the agreement. James died. Thereafter Patrick returned and filed his suit against Thomas and the widow and heirs of James to recover his share of the farm lands. Thomas permitted a decree to be entered against him pro confesso. The complainant then called Thomas as a witness and the widow and heirs of James objected to Thomas’ testifying upon the ground that he was interested in the event of the suit and was therefore disqualified under the statute. The Supreme Court in passing upon the question stated (p. 439):

“It is urged that Thomas Rann was interested in the event of the suit, and was, therefore, disqualified to testify against the heirs of his brother James. We are wholly unable to see that he had the slightest interest. He permitted the bill to be taken pro confesso against himself, and thereby admitted that he should convey to appellee the portion of appellee’s land which had been conveyed to him. We are totally at a loss to see in what possible manner he could promote his interest, if the forty James held of appellee’s land is conveyed to him. If the witness had been claiming the land under a cross-bill, then his interest would be apparent ; but no such interest appears on this record. His evidence was properly received, and must be considered. The cases referred to as holding that parties in interest can not testify, were decided prior to the adoption of the act of 1867 removing disabilities of witnesses on account of interest, and they can, therefore, have no application in this case. Their perti-nency to the case is not perceived.”

While it is true that the competency of the witness, Thomas, was determined upon the question as to whether or not he was any longer interested in the cause, nevertheless, the decision in that regard was based upon the fact that the witness had allowed a decree to be taken pro confesso against himself, which fact the court considered had removed Ms incompetency to testify for the plaintiff against the adminis-tratrix.

In the case of Wuebbles v. Shea, 294 Ill. App. 157, the administratrix sued two defendants, Pat Shea and Smith Lamar. At the close of plaintiff’s evidence and also at the close of all of the evidence Lamar moved the court for a directed verdict in his favor but both motions were denied. The Appellate Court held that where a person sues or defends in a representative capacity a party interested in the outcome of the suit may not testify in his own behalf or in behalf of his coparty, but that if this disqualification is removed by judicial determination, then such party is no longer incompetent. That ruling supports defendant’s contention in the instant canse. But the court went much further. After holding that the trial court should have given an instruction at the close of plaintiff’s evidence to find defendant Lamar not guilty it reversed the judgment of the trial court as to that defendant. The court then states (p. 163):

“The above conclusion leads us inevitably to a certain decision in this case with reference to the defendant Shea. Shea called Lamar as a witness. The court refused to allow him to testify because of his interest in the case. If -he had had an interest in the case, this ruling would have been correct. Where a person sues or defends in a representative capacity a party interested in the outcome of the suit may not testify in his own behalf or in behalf of his coparty as in this case; but if this disqualification is removed by judicial determination, as it should have been in this case, then such party is no longer incompetent. Lamar as a witness called on behalf of Shea was incompetent only because of an erroneous ruling of the trial court, but for which he would have been competent. ‘If a witness ceases to have an interest in the result of the proceedings he is not incompetent to testify against one suing or being sued in a representative capacity.’ Ward v. Williams, 153 Ill. App. 56. Lamar obviously would have been an important witness in this case. The defendant Shea was entitled to his version of the manner in which the collision and the death ensuing as a result thereof came about. It follows that the defendant Shea did not have that fair and impartial trial of his case which the law demands. The case as to the defendant Shea must be reversed and remanded to the circuit court of Clinton county for another trial.”

Here we have a ruling that in a suit by an adminis-tratrix if a judgment is entered in favor of one defendant it removes his incompetency to testify for the other defendant.

In the instant case we entertain no doubt that Krett at the time of the second trial was no longer a party to the action. His liability had been determined in the first trial. Plaintiff’s claim for wrongful death against Krett ceased to exist after the entry of the judgment against him and that judgment became a bar and could be pleaded in any future suit by plaintiff against Krett for the wrongful death of the deceased. Plaintiff could not make Krett a party defendant in the second trial; nor could Krett inject himself into the second trial, nor could he control in any way the proceedings upon the second trial. “Parties, in the larger legal sense, are all persons having a right to control the proceedings, to make defence, to adduce and cross-examine witnesses, and to appeal from the decision, if any appeal lies.” (1 Greenleaf Ev., sec. 535.) This statement by Greenleaf was quoted with approval by the Supreme Court of the United States in Green v. Bogue, 158 U. S. 478, 503. See, also, The Adah, 258 Fed. 377, 381; Feitl v. Chicago City Ry. Co., supra, p. 288. The contention of plaintiff that Krett remained a party to the suit because she did not dismiss the action as to him finds no support in the law. While plaintiff concedes that any interest that Krett might have in the cause would play no part in determining his competency as a witness, nevertheless, we feel impelled to say that as he was not an employee of The Willett Company at the time of the second trial it would work to his advantage if plaintiff secured a judgment against The Willett Company. Holding, as we do, that Krett at the time of the second trial was no longer a party to the action, we must further hold that the trial court erred in refusing to allow Krett to testify as a witness for defendant, The Willett Company. That the offered testimony was important to The Willett Company is not disputed.

Defendant contends that the trial court erred in denying its motion for a directed verdict in its favor made at the close of all the evidence for the reason that there was not any evidence that legally tended to show liability on the part of The Willett Company. The evidence in the second trial upon the instant question is substantially the same as the evidence that was adduced upon the first trial. In our former opinion we considered at great length the evidence that bore upon the question as to whether or not there was any evidence that legally tended to show liability on the part of the Company and we came to the conclusion that there was testimony that fairly tended to prove that Krett at the time of the accident was acting within the scope of his authority as a servant and employee of defendant. We adhere to that conclusion.

For the error of the trial court in excluding the offered testimony of Krett, the judgment of the Circuit court of Cook county is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded for a new trial.

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


text:
    George Edward Montgomery, Appellant, v. Henry M. Simon, Appellee.
    Gen. No. 41,552.

      Opinion filed April 15, 1941.
    Gariepy & Gariepy, of Chicago, for appellant; Fred A. Gariepy and John Spalding, of Chicago, of counsel.
    Corwin D. Querrey and Joseph Harrow, both of Chicago, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

An action brought against defendant to recover damages for personal injuries sustained by plaintiff on June 4, 1938, when the automobile being driven by the latter was struck by the automobile being driven by defendant, at the intersection of Cermak road, a State highway, and First avenue, in the Village of North Riverside, Illinois. A jury returned a verdict for plaintiff assessing his damages at the sum of $2,000. Plaintiff filed a motion for a new trial. Defendant did not make a motion for a new trial. Plaintiff’s motion for a new trial was denied and judgment was entered upon the verdict. Plaintiff appeals.

Defendant offered no evidence. Plaintiff contends that as the result of defendant’s negligence he sustained serious, painful and permanent injuries, which have incapacitated him for life, and have caused him to spend large sums of money for medical services ; that the damages awarded are so shockingly inadequate as to be an affront to justice, and that the trial court committed grievous error when it denied plaintiff’s motion for a new trial. Defendant is satisfied with the verdict and contends that the amount allowed by the jury is adequate and the judgment should be affirmed.

After an examination of the evidence bearing upon the question of damages we have reached the conclusion that plaintiff’s contention is clearly a meritorious one.

The accident happened on June 4, 1938, about 2 p.m. Plaintiff was driving west on Cermak road. As he approached the intersection of the road and First avenue, he slowed down to about twenty-five miles per hour. Defendant, an automobile salesman, was proceeding’ north on First avenue, driving a new Nash automobile. He was on his way to keep an appointment with a prospective customer in Oak Park. Three hundred feet south of Cermak road on First avenue there was a “caution” sign, warning that there was a “stop” sign ahead. There was a stop sign for traffic going north on First avenue located on the southeast corner of the intersection. Defendant disregarded the signs, failed to reduce his speed, and, according to the great weight of the evidence, drove across the intersection at a speed of about forty miles per hour. As defendant drove across the intersection plaintiff’s car had just crossed the center line of First avenue. Defendant’s car struck plaintiff’s car on the left side between the door post and the rear fender with such speed and force that as a result of the impact plaintiff’s car was thrown to the right in a northwesterly direction. It then hurtled a ditch adjoining the highway, rolled forward, and came to a stop in the middle of a field of recently plowed soft dirt, about seventy-five or a hundred feet from the point of the impact. Several WPA men, working in the field, saw the accident and rushed to the place where plaintiff’s car had stopped. Their attempt to extricate plaintiff from the car was not immediately successful because the door leading to the driver’s seat was caved in and could not be opened. Plaintiff was unconscious and had to be lifted out. The WPA men attempted to revive him by throwing “a couple of buckets of water” over his head but they were not successful. While plaintiff was still unconscious he was taken to the Hines Memorial hospital, in Hines, Illinois. What treatment he was given at the Hines hospital is not shown by the record. Shortly after 2 p. m. on the same day plaintiff was removed to the Peterson clinic, in Brookfield, Illinois, where he was examined by Dr. Philip Peterson. The doctor testified that plaintiff was in a semi-comatose state at the time; that he had several bruises and injuries about the head and face; a bruise at the left arm, and a bruise at the left knee; that he had an injury of the nose and he gave him first aid treatment to the nose. Under the direction of Dr. Peterson a number of X-ray pictures were then taken. These pictures were produced in evidence. The doctor testified that one picture showed a com-minuted fracture of the bony structure of the nose on the left side; another showed “a linear fracture of the occipital region of the skull;” still another showed “a slight compression fracture of the lower border of the third lumbar vertebra.” The doctor ordered that plaintiff be taken home and kept in bed for an indefinite period. He remained under the general care of Dr. Peterson from June 4, 1938, until December, 1939. At the time plaintiff was taken home he was still in a semi-comatose state, which condition persisted for a number of days. Later on the doctor prescribed medicine to relieve pain and continued to give plaintiff this medicine as long as he treated him. Plaintiff had “pain in the back and soreness and pain in the head; also headaches.” The doctor “prescribed rest in bed. He was in bed for at least two weeks. ’ ’ After that plaintiff was up part time. During the late summer and fall of 1938 plaintiff was given, at the doctor’s office, three X-ray treatments and heat treatment by machine for the relief of pain. In December, 1939, the doctor found that plaintiff “had a spasm, a tightness of the right leg.” Plaintiff was then given three diathermy treatments to the right leg; also prescriptions for medicine to relieve pain. The doctor testified that his hill for services amounted to $135. On the evening of the accident after plaintiff had been brought home in an ambulance from the Peterson clinic he was bleeding from the eyes, nose, mouth and ears, and Dr. Weber, of LaG-range, a specialist, was called to treat these conditions. Dr. Weber testified that he was a specialist in the treatment of the eye, ear, nose and throat; that he saw plaintiff on the evening of June 4, 1938, and upon examination he found that plaintiff had a fractured nose; “the septum in his nose which is a partition, was quite pushed over to one side and on examination you get crepitice and that is when you get this feeling that there is a broken bone there.” The doctor set the fracture. He also found that plaintiff had some small pieces of glass in his eyes, and he ‘' extricated” all of the glass. The next day the doctor found that plaintiff’s eyes were infected and in pretty bad condition. He saw plaintiff seven times and was paid $55 for his services. During the first four weeks immediately following the accident plaintiff was attended by a practical nurse. In the year 1939 his sister “cared” for him. During the year 1938 Dr. Linnell, an osteopath, treated plaintiff. For a week the doctor went to the home of plaintiff, then plaintiff went to the doctor’s office. The doctor gave plaintiff ten treatments, one a day. In the summer of 1939 plaintiff’s physical condition was becoming worse and in December he visited the Warren clinic, in Michigan City, Indiana, for treatment. Five additional trips were made by plaintiff to this clinic. Dr. Warren testified that he had conducted the clinic for forty-four years; that on December 29, 1939, he examined plaintiff; that he found that plaintiff “had a partial paralysis of the right leg, a traumatic neuritis of the leg.” In response to a hypothetical question the doctor stated that in his opinion there could be a causal connection between the accident and the condition of paralysis of the right leg. In response to a second hypothetical question the doctor testified that the condition of paralysis of the right leg, in his opinion, is permanent. The doctor further testified that he gave plaintiff intravenous treatments of potassium iodide, sodium salicylate and colchicine every second day in order to absorb anything in the brain that might be pressing, and that this treatment extended over a period of four weeks; that in addition plaintiff was treated in the bath department, with heat packs and physio-therapy for the pain in his leg and back. Upon cross-examination he testified that in his opinion nothing “would cure the man in the condition I found him; ’ ’ that the treatments given him and the medicines given him were merely for the purpose of relieving pain and inducing sleep. The doctor further testified that the bill of the clinic (Dr. Warren) for services rendered was $200. There was an additional bill for $116.05 of the clinic (hospital).

Dr. Benjamin Kessert testified that he was connected with the neuro-psychiatric department of the Edward Hines hospital and was also on the faculty of the Northwestern University Medical School; that his practice concerned diseases of the nervous system; that he examined plaintiff in March, 1940, at the office of Dr. Costenbader, in LaGfrange, Illinois; that he made certain objective findings; that “my objective findings were those of the left facial weakness and weakness of the grip power in his left hand, a swelling and discoloration of the right lower extremity; the discoloration was manifested by generalized flushing; there was limitation of motion in the right lower extremity, the deep tendon reflexes in the right lower extremity were absent, as compared to the opposite side.” The doctor further testified that he “prescribed physiotherapy treatments and potassium iodide, by mouth, medication. Q. For what purposes were those medicines and that type of treatment given? A. The physio-therapy was prescribed for the condition of Ms right lower extremity and the potassium iodide was prescribed for the condition of the head.”

Dr. James C. Clark testified that he examined plaintiff for the Prudential Insurance Company on March 30, 1940; that he found “a stiffness wMch means spastic paralysis, it means a rigid paralysis of the right leg, partial paralysis of the right leg;” that plaintiff walked with a crutch; that “the reflexes in the left leg were normal, those in the right leg were abnormal and exaggerated;” that “other findings I made were a swelling of the right leg, the right leg was swollen more than the left, that is certainly objective and there was some increased temperature in that leg over the left leg. As I said before, the leg was stiff, more rigid than normal and the reflexes were exag*g*erated; ’ ’ that the rest of his finding’s were not objective. The doctor further testified: “My opinion from my examination of Mr. Montgomery on March 30, 1940, is that he was not able to perform any manual employment. ’ ’

We will epitomize some of the salient evidence given by plaintiff, his wife and son: Plaintiff was fifty-five years of age at the time of the accident and his condition prior to the accident “was perfect.” He was the owner of a “building material and coal yard.” He managed the business and also acted as a salesman. Most of the time prior to the accident he worked from twelve to fifteen hours a day. At the time of the accident his weight was 200 pounds; at the time of the trial he weighed 155 pounds. For six weeks after the accident he remained in bed. After that time he was up during the day, at first for an hour or so until gradually he remained up “almost a full daytime.” At first he used a cane in walking and afterward a crutch. He never had any trouble with the right leg prior to June 4, 1938, but he had trouble with it right after the accident. “I couldn’t make it start to walk. I first noticed this when I first got out of the car after I was up and around. When I attempted to use the leg* for walking* it just stood still. It wouldn’t walk for a minute or so before I could get it moving.” He suffered pain constantly. His head and back bothered him all the time; he felt as though he had been hit with a blunt instrument on top of the head. The pain in his back he described as “like a toothache.” His leg pained him “from the toe up to the hip;” “it is there all the time. I do not sleep nights.” In September, 1938, plaintiff went to his place of business for short periods, increasing the time gradually until he stayed there almost a full daytime. He answered the telephone but did no manual work. He was not able to go to his place of business after December 1, 1939. During 1939 he did not go to the office every day and during* the last few months of that year he would be at the office only a few hours a day, when he would lie down on a couch. As a result of the accident Mrs. Montgomery was compelled to put on salesmen to do the work that had been performed by plaintiff before the accident.

The evidence showed that plaintiff paid to doctors and a nurse, $606.05. Evidence was also introduced to the effect that plaintiff suffered a loss in earnings and income of $1,090. Plaintiff also paid for medicines, but we find no evidence in the record as to the amounts paid. It thus appears that the jury awarded plaintiff for past and future pain and suffering ; permanent physical disability, making gainful employment by plaintiff impossible; loss of future earnings and income, and future expenses for medical services, approximately $300. As plaintiff’s counsel argues, the amount of the verdict is so inadequate that it shocks one’s sense of justice. We 'have been endeavoring to ascertain, from the record, if possible, what could have caused the jury to award plaintiff such inadequate damages. The only reason we can find in the record is the following: Dr. James C. Clark, a witness for plaintiff, whose testimony has been heretofore referred to, examined plaintiff, in his home, for the Prudential Insurance Company on March 30, 1940. As heretofore stated, the doctor testified to the partial paralysis of the right leg that he found, and further stated that he was of the opinion that plaintiff was not able to perform any manual employment. It may be that the jurors, from the doctor’s evidence, assumed that plaintiff had a policy with the Prudential Insurance Company and that he was receiving*, or would receive, compensation from that Company, and that this assumption influenced them to reduce the amount of damages that they otherwise might have awarded plaintiff. There was nothing in the record to show that plaintiff was receiving or might receive compensation from the Insurance Company, but even if the record showed that he was receiving* compensation from that Company, such compensation could not in any way affect his right of compensation against defendant.

It is the settled law of this State that where it is obvious that a jury has failed to take into consideration proper elements of damages which have been clearly proven, and have awarded the plaintiff wholly inadequate damages, a motion for a new trial should be sustained by the trial court. (See Browder v. Beckman, 275 Ill. App. 193, 198, 199; Parke v. Lopez, 306 Ill. App. 486, 489, 490.) In Kilmer v. Parrish, 144 Ill. App. 270, 274, the court said: “At common law new trials were not allowed upon the ground that the damages allowed by the jury in actions for torts were insufficient. But the modern rule is that a new trial may be granted where the verdict is grossly inadequate, for the same reasons as those governing where the verdict is excessive. Paul v. Leyenberger, 17 Ill. App. 167; Hackett v. Pratt, 52 Ill. App. 346; Hamilton v. Pittsburg, C., C. & St. L. Ry., 104 Ill. App. 207; Bourke v. Anglo-American Provision Co., 90 Ill. App. 225; 14 Encyc. of Pl. & Pr. 764, and cases cited. A verdict for a grossly inadequate amount stands on no higher ground on legal principles than a verdict for an excessive or extravagant amount.” In Dimick v. Schiedt, 293 U. S. 474, 486, the court said: “Where the verdict returned by a jury is palpably and grossly inadequate or excessive, it should not be permitted to stand; but, in that event, both parties remain entitled, as they were entitled in the first instance, to have a jury properly determine the question of liability and the extent of the injury by an assessment of damages.” Many other cases to the same effect might be cited, but the rule stated is well established. In the instant case defendant offered no evidence as to the accident, nor as to plaintiff’s injuries, and it would amount to a miscarriage of justice to allow the present judgment to stand.

The judgment of the Circuit court of Cook county is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded for a new trial.

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. Joseph DeYoung, Plaintiff in Error.
    Gen. No. 40,560.

      Opinion filed April 15, 1941.
    James J. Barbour, of Evanston, for plaintiff in error.
    Otto Kerner, Attorney General, for defendant in error; A. B. Dennis, Assistant Attorney General, Thomas J. Courtney, State’s Attorney, Edward E. Wilson, John T. Gallagher, Blair L. Varnes and Melvin S. Rembe, Assistant State’s Attorneys, of counsel.
   Mr. Justice John J. Sullivan

delivered the opinion of the court.

The jury returned a verdict in this case finding the defendant, Joseph DeYoung, guilty of violation of section 24 of the Medical Practice Act (ch. 91, par. 16i, Ill. Rev. Stat. 1937 [Jones Ill. Stats. 79.25]), and the court entered judgment thereon and assessed a fine against him of $125 and $20 costs. This writ of error is brought to review that judgment. In transferring the cause to this court the Supreme Court in People v. DeYoung, 369 Ill. 341, held that no new constitutional question was presented.

The information upon which defendant was tried was verified by Charlotte Hermes, an investigator for the Department of Begistration and Education of the State of Illinois.

The first count thereof charged that defendant did unlawfully diagnosticate an ailment or supposed ailment of Charlotte Hermes also known as Mrs. Balph Hermann, as asthma.

The second count charged that he unlawfully treated “the supposed asthma of Charlotte Hermes . . . by applying pressure and manipulating the back, side, vertebra and neck of the said Charlotte Hermes . . . with his fingers and hands. ’ ’

The third count charged that the defendant did unlawfully “suggest and recommend the manipulation of the back, side, vertebra and neck of the said Charlotte Hermes . . . with his fingers and hands with the intention of receiving a fee of a portion of $5 in cash therefor.”

The fourth count charged that Joseph DeYoung, on November 17, 1936, at the village of Thornton, Cook county, Illinois, not then and there possessing an existing license to practice the treatment of human ailments in any manner, did ‘ ‘ unlawfully attach the title Doctor, Physician, Surgeon, M. D., or some other word or abbreviation to his name indicative that he was engaged in the treatment of human ailments as a business, to-wit: . . . did sign his name upon a receipt for $5 in the following manner, to-wit: Joseph DeYoung, D. N., and did distribute pamphlets to members of the public and more particularly to Mrs. Ralph Herman, upon which he had caused or permitted his name to be printed, written or stamped in the following manner: ‘Dr. Joseph DeYoung, Naprapathic Physician,’ and ‘Dr. DeYoung,’ and did cause or permit his name to be displayed on the house at 117 Schwab Road, Thornton, Illinois, in the following manner: ‘Dr. Jos. DeYoung, Naprapath.’ ”

The fifth count charged that the defendant unlawfully “did then and there . . . maintain an office in the house at 117 Schwab Road, equipped with a table, chart, equipment and paraphernalia for the treatment of human ailments.”

“All in violation of section 24 of an Act to revise the law in relation to the practice of the treatment of human ailments for the better protection of the public health and to prescribe penalties for the violation thereof, and contrary to the statutes in such case made and provided against the peace and dignity of the People of the State of Illinois.”

The second count of the information was quashed on defendant’s motion and separate verdicts were returned by the jury finding him not guilty as to the first, third and fifth counts. As heretofore stated it was on the fourth count that the jury returned the verdict of guilty, upon which the judgment before us for review was entered.

Charlotte Hermes, an investigator for the Department of Registration and Education of the State of Illinois, went to the home of the defendant on November 17, 1936. She saw a sign on his front porch, which read: “Dr. Jos. DeYoung, Naprapath.” After entering his home she told him she had a had cold and that she did not know whether it was caused by asthma or hay fever. She asked for and received a napra-pathic treatment. She knew what such a treatment was since she had had one before. This is a manipulative treatment or “glorified” massage. She paid $5 to defendant and he gave her a receipt which read, “Received of Mrs. Ralph Hermann [the name she used] five dollars for half course of naprapathic treatments. Joseph DeYoung, D.N.” When she left De-Young’s home she took with her three pieces of literature dealing with the value of naprapathic treatments. She testified that DeYoung gave her this literature, advising her to read same so that she might have a clearer understanding of the profession or science of naprapathy. Both DeYoung’ and his wife testified that the literature was not given to Mrs. Hermes but that she purloined it from their home.

The literature referred to consisted of three pamphlets. The first of these, entitled “The Business of Living,” advocates the use of naprapathic treatments for the cure of' almost every conceivable human ailment or disease, enumerating them. This statement is contained therein: “Naprapathy is a scientific method of treating diseases, both chronic and acute, without drugs or surgery. Diseases and ailments which are regarded incurable are cured by this wonderful treatment.” The name of “W. L. Morrison appears in type on the bottom of one of the pages as the author. At the end of the pamphlet are these printed lines: “I have cured others — why hot you? Telephone or write for appointment. Consultation without charge.” Immediately after the foregoing lines there is written in ink: “Dr. DeYoung, Thornton, Illinois, Tel. 2507.”

The second pamphlet is entitled, “Bulletin of the American Naprapathic Association. Yol. XII, Burlington, Iowa, September, 1936. Number 11.” This bulletin contains articles by various persons as to the efficacy of naprapathic treatments for “Children’s Respiratory Disorders,” “Faulty Elimination,” “Diseases of the Female,” “Repair Changes in Neurasthenia,” and “Prostatitis.” At the top of the front page of the bulletin was stamped: “Dr. Joseph DeYoung, Thorton, Ill.”

The third pamphlet is entitled “A Personal Message.” At the bottom of the first page thereof in small type is the statement, “Copyrighted 1929 by Chas. R. Cushman.” At the end of this printed circular appears the following in heavy black type: “Dr. Joseph DeYoung Naprapathic Physician, Pipestone, Minnesota.” A black ink line is run through “Pipestone, Minnesota,” and “Thornton, Ill.” is written thereunder in ink. This pamphlet contains the following, among other questions and answers:

“What diseases are treated by Naprapathy?
“Connective tissue diseases, to answer the question briefly. But speaking of ‘diseases’ as you know them (we call them sympto’-ras), the following, among others, have been successfully treated: Stomach troubles, headache, hay fever, neuralgia, asthma, bronchitis, liver complaints, kidney and bladder trouble, constipation, enlarged or inflamed tonsils, insomnia, ovarion and womb disorders, lumbago, rheumatism, neuritis, gall-stones, foot troubles, nervousness, influenza, paralysis, troubles of the nose, throat, ears and eyes, including cataract; jaundice, piles, heart troubles, consumption, deafness, prolapsus or falling of the abdominal or pelvic organs, goitre, etc., etc.”

Defendant contends that his motion to quash the fourth count of the information should have been sustained on the ground that it stated no offense in that it failed to charge that he was in fact engaged in treating human ailments. There is no merit in this contention. It is agreed that the word “indicative” in that section of the statute upon which the fourth count was based means to “hint” or to “suggest.” The violation charged under the fourth count is not that defendant treated Charlotte Hermes or diagnosed her condition as asthma or maintained an office at 117 Schwab road, Thornton, Illinois, equipped for the treatment of human ailments, but that by attaching to his name one or more of the titles specified in the statute in the manner alleged, he indicated, hinted or suggested that he was engaged in the treatment of human ailments as a business. That portion of section 24 of the Medical Practice Act upon which the fourth count is predicated is clear and definite and distinctly states a crime. It does not contain any declaration of what shall be conclusive evidence of a fact and it does not deny a fair opportunity for rebuttal. This statute provides: “If any person . . . shall attach the title Doctor, Physician ... to his name, indicative that he is engaged in the treatment of human ailments as a business ; and shall not then possess in full force and virtue a valid license issued by the authority of this State to practice the treatment of human ailments in any manner, he shall be guilty of a misdemeanor.” This is not a declaration that the mere attaching of the title “Doctor” or any of the other titles enumerated in itself established that the person charged was engaged in the treatment of human ailments as a business, but rather that the title or abbreviation must be attached and used in a manner and under such circumstances as to indicate, hint or suggest that such person is engaged in the treatment of human ailments as a business. The fourth count of the information clearly and specifically informed the defendant of the acts with which he was charged, among which was the distribution of pamphlets “to the members of the public and more particularly to Mrs. Ralph Hermann . . . upon which he had caused or permitted his name to be printed, written or stamped in the following manner: Dr, Joseph DeYoung, Naprapathic Physician and Dr. De-Young.” We think the fourth count stated an offense under the statute and that defendant’s motion to quash same was properly overruled.

The next question presented is whether it was shown by the evidence beyond a reasonable doubt that defendant attached to his name the title “Doctor” or “Physician” or the abbreviation “Dr.” in such a manner as to indicate that he was engaged in the treatment of human ailments as a business.

There is no requirement in this State that one engaged in the business of administering massage treatments be licensed. Defendant presented evidence to the effect that naprapathy is merely massage of a particular type, that the titles “Doctor” and “Surgeon” may be properly used outside of the field of medicine and that the defendant had a degree as a “Doctor of Naprapathy.” But these matters were all beside the question which the jury was called upon to determine under the fourth count. That question was whether the defendant attached to his name any of the titles specified in the statute in such a manner or under such circumstances as to indicate, hint or suggest that he was engaged in the treatment of human ailments as a business.

Eliminating from consideration the sign on defendant’s front porch and the receipt given to Mrs. Hermes by DeYoung as possibly not tending to prove the allegations of the fourth count, we turn to the literature heretofore described and set forth in part.

What significance has this literature which Mrs. Hermes took with her from defendant’s home? It was clearly a question of fact for the jury to determine whether she was given this literature by defendant or whether she took same from his home surreptitiously and without his knowledge. By its verdict the jury found that he gave it to her. While defendant was not the author of these pamphlets, he placed his stamp of approval on their contents and adopted the statements contained therein as his own when he wrote “Dr. DeYoung, Thornton, Illinois, Tel. 2507,” on the booklet entitled “The Business of Living’.” 'Here he used the abbreviation “Dr.” without any qualification whatsoever. As to the pamphlet entitled “Bulletin of the American Naprapathic Association. Vol. XII, Burlington, Iowa, September, 1936. Number 11,” there is stamped across the top of the cover page: “Dr. DeYoung, Thornton, Illinois.” Again the abbreviation “ Dr. ” is used without qualification. As has been noted the third pamphlet is headed “A Personal Message.” At the end thereof there appeared in heavy type: “Dr. Joseph DeYoung, Naprapathic Physician, Pipestone, Minnesota.” A black ink line was run through “Pipe-stone, Minnesota,” and “Thornton, Ill.” was written thereunder in ink. It will be observed that in this instance the word “Physician” was used. In Webster’s, New International Dictionary, 2nd Edition, a physician is defined as “a person skilled in physics or the art of healing; one duly authorized to treat diseases, esp. by medicines; a Doctor of Medicine; often distinguished from a surgeon. ’ ’ Defendant as a naprapath had no right under the law to attach the title “Physician” to his name.

From the tenor and contents of these pamphlets as heretofore set forth, it appears conclusively that defendant indicated that he was engaged in the treatment of human ailments as a business. The concluding paragraph of the pamphlet entitled “The Business of Living” states: “Naprapathy is a scientific method of treating diseases, both chronic and acute, without drugs or surgery. Diseases and ailments which are regarded as uncurable are cured by this wonderful treatment.” By attaching to his name as written on this printed pamphlet the title “Dr.,” defendant not only indicated, hinted and suggested that he was engaged in the treatment of human ailments as a business, but he definitely held himself out as being so engaged. The same is true as to the other two pamphlets upon which he attached to his name the title “Physician” and the abbreviation “Dr.” In our opinion the offense charged in the fourth count of the information was proven beyond a reasonable doubt.

Defendant complains of the refusal of the trial court to give certain instructions tendered by him and of its modification of another instruction. We have carefully examined these instructions and find that the instruction last above referred to was properly modified and that the other instructions were properly refused. The jury was fully and fairly instructed as to the applicable rules of law.

There is no merit in defendant’s contention that the verdict of guilty as to the fourth count of the information is repugnant to the verdicts of not guilty on the other counts and that it is therefore a nullity. The specific charge made against defendant in the fourth count is separate and distinct from the charges made in the other counts and the verdict of guilty as to this count is entirely consistent with his acquittal on the other counts.

This case has been fairly tried and no adequate reason has been presented for disturbing the verdict or judgment. The judgment of the County court is affirmed.

Judgment affirmed.

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