author: Mr. Justice Thomson Mr. Presiding Justice Taylor,

text:
    Bowles Live Stock Commission Company et al., Appellants, v. Chicago Live Stock Exchange et al., Appellees.
    Gen. No. 30,902.
    1. Boards op trade and exchanges — right of corporation not a member to seek relief against rules. A stock commission company joining with its officers having memberships in the live stock exchange in a complaint may ask equity to take jurisdiction of a suit against the exchange to declare void an exchange rule against radio advertising with market reports and expelling members so doing, though the company alone did this and only the individual officers could be members of the exchange.
    2. Boards op trade and exchanges — right to refuse reports for radio advertising. Reports of a live stock exchange market, which are produced by the combined efforts of members of the live stock exchange, can rightly be refused by the exchange to individual concerns for use by radio broadcast to advertise their own business.
    3. Boards op trade and exchanges — reasonableness of rule prohibiting radio broadcasting of reports. Rule of a live stock exchange forbidding use of market reports by radio to advertise individual firms, but not advertising by radio nor broadcasting market reports by radio, is not an unreasonable restriction of competition.

      4. Boards ot trade and exchanges — adoption of restrictive rules after contract with third person. Live stock commission company may not complain that a live stock exchange rule against radio advertising by use of market reports was adopted after their contract with the radio concern, when the contract violated in spirit, at least, a preexisting rule, by the company’s paying for a wire from its office to that of the radio concern to carry such advertising to the radio broadcaster.
    5. Estoppel — inconsistent position in judicial proceeding. Live stock commission company may not claim a live stock exchange is interfering with a contract between itself as an outside party and a radio broadcaster by forbidding radio broadcasting where, though corporations were not admitted to the exchange, its individual officers were members, and the company justified its right to seek relief by claiming a quasi membership.
    Appeal by plaintiffs from the Circuit Court of Cook county; the Hon. Francis S. Wilson, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1926.
    Affirmed.
    Opinion filed December 29, 1926.
    Blum, Blum & DeLaney, for appellants; Henry S. Blum and Elmer M. Leesman, of counsel.
    Sims, Welch, Godman & Stransky, for appellees; F. J. Stransky, of counsel.
   Mr. Justice Thomson

delivered the opinion of the court.

This is an appeal by complainants from a decree dismissing their bill for want of equity.

The defendant Stock Exchange is a corporation, organized “to promote and maintain uniformity in the customs and usages of merchants,” engaged in buying and selling live stock in the Union Stock Yards at Chicago. The other parties defendant are the officers and directors of the Exchange. It had been in existence many years at the time the controversy involved in this case arose. It has over 500 members. The complainant Commission Company is engaged in the live stock commission business in the Stock Yards. John P, Bowles, president and general manager of that Company, has been a member of the Exchange throughout its existence. The other parties complainant are various officers and employees of the Commission Company, who have memberships in the Exchange. The Commission Company as a corporate entity is not a member of the Exchange, but the various individual parties complainant, officers and employees of the Commission Company, hold memberships in the Exchange, which were paid for by the Company and which have been indorsed in blank by the individual officers and employees to whom they were issued, and by them delivered to the Commission Company which is alleged in an amendment filed to the bill to be the owner of them. There are ten such memberships, alleged to be worth over $20,000 in the aggregate. Complainants alleged that it would be impossible for a concern to engage in the live stock commission business in the Stock Yards without holding such memberships in the Exchange through its officers and employees.

Among the by-laws and rules of the Exchange, which have been in effect for some time, is one known as Rule XXIV, to the effect that no member engaged in selling live stock, for nonresidents on commission, “shall pay, agree to pay, or cause to be paid, the cost of transmission of any telephone or telegraph message, either sent or received,” except when such message pertains “to inquiries instituted by and for the personal information of members or for the purpose of instructing superintendents or nearby feeding yards to load and ship all or parts of consignments of stock that are held on feed at such feed yards while in transit and which are consigned to commission firms at these yards.”

On February 3, 1925, the Commission Company entered into a contract with the Radiophone Broadcasting Corporation, “for the purpose of advertising its business by broadcasting market reports,” as alleged in the bill of complaint. By the terms of this contract, the Broadcasting Corporation agreed to render its broadcasting service from its broadcasting station in Chicago, for the broadcasting of market reports direct from the Commission Company’s office in the Stock Yards “by special wire,” for a period of 260 weeks. The reports were to be broadcast daily for ten minutes — from 12:50 to 1:00 p. m., — and were to be read by members of the Commission Company. It was also provided that “cost of installation and rental of private wire,” from the office of the Commission Company to the station of the Broadcasting Corporation was to be borne by the Commission Company. The Broadcasting Corporation agreed to furnish the Commission Company “with either the original or a copy of all letters or telegrams received” pertaining to the program of publicity of the Commission Company.

Complainants alleged in their bill that upon the execution of this contract the Commission Company “caused the necessary equipment to be installed at its own expense,” and proceeded to broadcast market reports from its offices each day for the purpose of advertising its business.

On October 30, 1925, the Live Stock Exchange adopted an amendment to its Buie XXIY, providing that “No member of this Exchange shall use * # * radio broadcasting stations, or any facilities in connection therewith, to disseminate, distribute or make known live stock market information for advertising purposes or the solicitation of business for himself or any particular live stock commission merchant or concern engaged in the live stock commission business. All inquiries coming to members from radio broadcasting stations or from any person for the use of radio broadcasting stations for live stock market information shall be referred to the Secretary of the Exchange.

“The Board of Directors of this Exchange is hereby authorized in its discretion to make such arrangements as it may deem advisable for the broadcasting by radio by the Exchange and on its behalf of market information or other matters of interest to the live stock trade. ’ ’

Shortly after the adoption of this amendment to Bule XXIY, the Exchange sent a written communication to the Commission Company, advising it formally of the adoption of the amendment and that, pursuant thereto, it would be necessary that the broadcasting of market information, which the Company had been engaged in for advertising purposes, would have to cease. In this communication, the Exchange offered to be substituted for the Commission Company in its contract with the Broadcasting Corporation, to the end that the Commission Company might be relieved of such financial obligations as it might be under as a result of their contract with the Broadcasting Corporation.

The Commission Company sent a written communication in reply to the Exchange, in which the Company took the position that the amendment to Bule XXIY was “not enforceable against the contract entered into by us.” In this communication the Commission Company further advised the Exchange that the Broadcasting Corporation was unwilling to permit the substitution of the Exchánge for the Commission Company in the contract it had with the latter.

The Exchange took the position that a continuance of the broadcasting of market information by the Commission Company, for advertising purposes, was a violation of the provisions of Bule XXIY, as amended, and proposed to take such action as its by-laws and rules provided for, against the officers and employees of the Commission Company, in whose names the memberships controlled by that Company were held. Thereupon the Commission Company advised the Broadcasting Corporation that it would not be able to continue its business if those of its officers and employees who held memberships in the Exchange were suspended or expelled and for that reason, and because of the power of the Exchange to suspend or ex-pell the members, if the Exchange continued to take the position that the broadcasting which the Commission Company was doing was a violation of its amended Buie XXIV, it might be obliged to cease such broadcasting. Thereupon the Broadcasting Corporation filed a bill in the circuit court of Cook county against the Bowles Live Stock Commission Company and the Exchange and its officers and directors (which is case 243 Ill. App. post, in this court, to which reference is hereinafter made), and in that proceeding obtained a temporary restraining order enjoining the Commission Company from discontinuing its broadcasting under its contract with the Broadcasting Corporation.

In the bill of complaint which was then filed by the Commission Company, in the suit at bar, in which those of its officers and employees who held the memberships in the Exchange which it controlled joined, they alleged that the amendment to Buie XXIV, which had been adopted by the Exchange, was unreasonable and void; that the service rendered by the Commission Company in broadcasting market information, “although intended primarily as a means of advertising” the business of the Commission Company, nevertheless rendered to those interested an important public service; and that the amendment to Buie XXIV, by which it was sought to bring about an end of this service, was “contrary to public policy and inimical to the best interests of the public”; and that, in attempting to enforce the rule as so amended, the Exchange was seeking to impair the obligation of the contract existing between the Commission Company and the Broadcasting Corporation.

The complainants prayed that the Exchange and its officers and directors be enjoined from enforcing Rule XXIV as amended, by disciplinary action against those holding the memberships in the Exchange, upon which the Commission Company relies for the doing of its business, and that the amendment to the rule be declared unlawful and void.

By their answer the defendants alleged that the Exchange was a voluntary association of persons, organized, among other things, to secure to its members the benefits of co-operation in the furtherance of their business and to promote uniformity in their customs and usages, to accomplish which it was necessary to adopt certain rules and by-laws for the government of its members, which would prevent any of them from employing customs or practices from which they might procure an undue advantage over other members ; that the complainants had not only been broadcasting market reports under their contract, but that they had been doing so for the purpose of advertising and “boosting” the business of the Commission Company, to the great injury of the other members of the Exchange; that it was impossible in the present state of radio industry for all members of the Exchange to broadcast in the manner employed by the Commission Company, and that the use of radio by the complainant Company as an advertising and boosting agency for itself amounted to an unfair and unjust trade practice detrimental to the members of the Exchange; that in its use of the radio, the Commission Company had broadcast its material in a deceptive manner, so as to lead those who received such material to believe that the Commission Company had made unusual and extraordinary sales of stock consigned to it and that it occupied a position of great authority and influence in the Union Stock Yards, such as was not possessed by other live stock traders; that the complainant Commission Company was not using the radio for the purpose of serving the public or giving information to the public, concerning market reports, but rather for the purpose of advertising its own business, to the great detriment of the other traders in the Yards; that the amendment to Bule XXIV, complained of in the bill of complaint, was not intended to prohibit the broadcasting of market reports, but rather to prevent the dissemination of live stock market information for advertising purposes or for the solicitation of business for any individual member of the Exchange or any particular commission company engaged in the live stock commission business, and also to prevent any member from using the radio for the broadcasting of advertising and “boosting” propaganda, in such a manner as to mislead those who received it, which would thus work to the disadvantage of the other members of the Exchange.

The defendants further alleged in their answer that if the Commission Company ceased its broadcasting, neither the general public nor the raisers'and shippers of stock would be deprived of securing market information speedily, for the reason that such information was being broadcast daily from a radio station located in the Union Stock Yards, this broadcasting being under the control of the Chicago Daily Drovers Journal; that complete live stock information was broadcast from this station in the yards each day, which quotations were prepared by the United States Bureau of Economics; that this broadcasting was done fairly and impartially and in a manner which would not enable any member of the Exchange, or any firm engaged in the stock commission business in the Union Stock Yards, to have an unfair advantage over any other.

A temporary injunction having been issued in case 243 Ill. App. post, above referred to, restraining the Commission Company from ceasing to broadcast market information in fulfillment of its contract with the Broadcasting Corporation, and further restraining the Exchange from enforcing its amendment to Rule XXIV, in so far as that rule was claimed to apply to the contract between the Commission Company and the Broadcasting Corporation, and the Exchange having made a motion in that case to dissolve that temporary injunction, and an application having been made by the Commission Company in the suit at bar for a temporary injunction, likewise restraining the Exchange from enforcing its amendment to Rule XXIV, these two motions were heard together in the trial court, and it was stipulated by all the parties that at such hearing all the allegations of fact set forth by the Exchange and its officers and directors, in the answers filed by them in each of the two cases, might be considered with the same force and effect as if such allegations were presented at such hearing supported by affidavits. At the consolidated hearing of the two motions, certain affidavits were also presented, one by John P. Bowles which was to the effect that, prior to the execution of the contract between the parties, he had advised the president of the Exchange to the effect that the Commission Company expected to execute such a contract; that he had examined the rules of the Exchange and found nothing there against such action, and that after such contract had been executed and the Exchange held a meeting to consider the' adoption of the amendment to Rule XXIV, the president of the Exchange admitted that he had received such advice from Bowles and had communicated it to the directors of the Exchange. Bowles further stated in this affidavit that he had never heard anything in this matter from the president of the Exchange.

There was also admitted a counter affidavit by Everett W. Brown, president of the Exchange, to the effect that in the conversation he had with Bowles, wherein the latter told him he was negotiating with the Broadcasting Corporation, with the view of broadcasting the market reports, he told Bowles that in his opinion such a contract might conflict with the rule of the Exchange, covering telephoning and telegraphing, which was Bule XXIV as it then existed and prior to the amendment, and he further suggested to Bowles that he thought the latter ought to make some indication of his intentions to the Board of Directors of the Exchange; and in reply Bowles told him that he had submitted the matter to his attorneys and they had advised him that his proposed contract with the Broadcasting Corporation would not interfere with the existing rule; that no formal communication was ever received by the Exchange from the Commission Company, and the next Brown heard of the matter was when Bowles told him the contract had been entered into by his Company.

Upon the consolidated hearing of the two motions and the consideration by the chancellor of the respective bills of complaint and answers thereto, and "the affidavits submitted, decrees were entered dismissing the bills of complaint in both cases; the temporary injunction which had been issued in case 243 Ill. App. post, was continued in force pending the perfection of the appeals which were prayed from both decrees. After the appeals from these decrees were perfected to this court a motion was made here that the temporary injunction issued in the trial court be continued in force, pending the decision of the appeals, and that motion was allowed.

In support of the decree appealed from in the suit at bar, counsel for the Exchange urge that the entity of the Commission Company and its property and contract rights are distinct and separate from the rights of its individual officers and employees who are members of the Exchange; that the Commission Company itself is not a member of the Exchange and possesses no member rights, and therefore may not complain of the enforcement of the rules and by-laws of the Exchange as to its members; that the officers and employees of the Commission Company who are members of the Exchange, and who are complainants herein, aro not parties to the contract between the Commission Company and the Broadcasting Corporation and therefore they have no right to seek the aid of a court o£ equity in protecting that contract. The Exchange is a voluntary association of individuals and a corporation not for pecuniary profit. But the record also discloses that anyone desiring to engage in the live stock commission business, in the Union Stock Yards, must become a member of the Exchange in order to acquire the standing in that business which is necessary to the acquisition of business and trade, and it discloses further that although the Exchange is a corporation not for pecuniary profit, as such, it was organized and is maintained for direct objects which have the ultimate object of mailing the business conducted by the members of the Exchange successful and profitable. It is true that the individual complainants, officers and directors or employees of the Commission Company are not parties to the contract between that Company and the Broadcasting Corporation. But both the Commission Company, which is party to the contract sought to be protected, and the individual officers, directors and employees of that Company, who are members of the Exchange, are parties complainant, and we are of the opinion that the relation of the parties is such that equity may properly take jurisdiction of the subject matter and determine whether the situation complained of calls for the relief prayed for.

A number of questions are discussed in the briefs filed by the respective parties in this court. In our opinion the important question here presented is the question of whether Rule XXIV of the Exchange, as amended, is legal and valid. If it is, the chancellor did not err in entering the decree appealed from. We believe the question, referred to must be answered in the affirmative.

Both the original rule and the amendment thereto were clearly within the charter powers of the Exchange, the purpose of which was there stated to be that of promoting uniformity in the customs and usages of merchants and to secure to its members the benefits of co-operation in the furtherance of their legitimate pursuits. The so-called telephone and telegraph rule, which was Bule XXIV before the radio amendment, is substantially the same rule which was attacked by the Federal Government in Hopkins v. United States, 171 U. S. 578, which was an action to dissolve the Kansas City Live Stock Exchange, an organization patterned after the Exchange involved here. It was there contended that this telephone and telegraph rule was an attempt to regulate interstate commerce and operated in restraint of trade. The question really decided in that case was that the Exchange was not engaged in interstate commerce and therefore the contention made was untenable. But the court also held that the rule referred to was “so clearly not an attempt to regulate or restrain the general sending of telegrams that it would seem unnecessary to argue the question.”

The object of the original telephone and telegraph rule clearly was to prevent members of the Exchange from contesting with one another for the business of shippers of live stock by means of prepaid telephone or telegraph messages. When the radio came into general use, a new field was opened up. But, under the pleadings considered pursuant to the stipulation of the parties, that field was available to only a few, for the same purpose, in a given'locality. There are over 500 members of the Exchange, so, in order to “promote uniformity in the customs and usages of merchants and to secure to its members the benefits of co-operation in the furtherance of their legitimate pursuits” the Exchange adopted its amendment to Bule XXIV.

It will be seen that this amendment does not say that members of the Exchange shall not use radio broadcasting stations to disseminate live stock information, but it provides that no member shall do so, “for advertising purposes or the solicitation of business,” either for himself or for any particular concern. In our opinion the amendment is reasonable and valid. The live stock market, as made each day in the Union Stock Yards, is based on the combined effect of the trades entered into in the course of the business day by those engaged in the live stock commission business at the Yards — all of them being members of the Exchange. The subject of the amendment to Eule XXIV —“live stock market information”— is thus the product of the daily transactions of the members of the Exchange with each other. This live stock market information, being affected with a public interest, would have to be so used as to be in conformity with that interest and could not be so used as to discriminate in favor of some and against others, nor could it be so used as to create a monopoly, but that the members of the Exchange had the power under their charter, and the right under the law, to enact a rule or by-law to the effect that no one of them should use this latest and most rapid means of communication— the radio — for the purpose of disseminating that joint product of the business of all of them “for advertising purposes or the solicitation of business” for one of them or for his firm or any particular merchant or concern, seems to us to be clear. It is no answer to this to say, as counsel for the Commission Company does, that because the dissemination of live stock market information is of interest and value to the public, a rule should be considered against the public interest if it prevents or interferes with such a service on the part of one who is rendering it, simply because he may thereby be acquiring some personal benefit. The record shows, and indeed the Commission Company frankly admits, that its primary purpose in broadcasting information as to the live stock market at the Stock Yards in Chicago, from day to day, is to advertise itself and induce the shippers of cattle to consign them to it rather than to others engaged in the commission business at the Yards. To make such use of what we have pointed out is really the joint product of the trades and business of all those who are there engaged in that business, may, in our opinion, properly be considered an unfair practice and so properly prohibited by rule of the Exchange. And further, the record also shows that if the rule is complied with and the broadcasting done by the Commission Company for advertising purposes ceases, the shippers of cattle and the public generally will not be deprived of this daily live stock information, for it is, and no doubt will continue to be, broadcast daily by a station located in the Stock Yards under the control of the Chicago Daily Drovers Journal — the market information thus disseminated being based on quotations assembled and prepared by an agency of the Federal Government, and therefore being official in character.

While some of the language used by the court in the course of its opinion in People ex rel. McIlhany v. Chicago Live Stock Exch., 170 Ill. 556, is broad enough to support the contentions of the Commission Company in the case at bar, in our opinion both the issues involved and the facts presented in that case were entirely different from those we have to consider here — so much so as to make that decision of our Supreme Court inapplicable in this case. It was held that the by-law of the Exchange, which was there attacked, was an effort to “prevent competition and to restrict individual efforts and freedom of action in trade and commerce, ’ ’ and the court held that to be a restriction “hostile to the public welfare, not consonant with the spirit of our institutions and in violation of law,” and therefore void. In our opinion that may not be said of the amendment to Rule XXIY. The enforcement of that rule will not tend to prevent competition nor will it unreasonably restrict individual efforts and freedom of action on the part of the Commissi on Company.

The enforcement of the rule will have no effect on the readiness and dispatch with which stock raisers and dealers, or the public, may receive their live stock market information. It will not affect the right of the Commission Company or of any member of the Exchange to advertise their business, even by radio. It will prevent merely the radio use of live stock market information, the product of the combined business of all members of the Exchange, by any one of them, for the purpose of advertising the individual business of himself or his concern. That we consider a reasonable regulation, having no such effect as was condemned by our Supreme Court in People ex rel. McIlhany v. Chicago Live Stock Exchange, supra.

Likewise, in our opinion, the case of Inter-Ocean Pub. Co. v. Associated Press, 184 Ill. 438, upon which the Commission Company relies, may clearly be distinguished from the case at bar. There the Publishing Company, as a stockholder member of the Associated Press, sought to enjoin the enforcement of a clause in the by-laws of the latter, by which the Publishing Company was required not to take or publish news from any news-gathering source other than the Associated Press. The court held that the use of the property of the Associated Press in gathering and selling news was one in which the public had an interest and, therefore, “upon principles of justice it can make no distinction with respect to persons who wish to purchase information and news, for purposes of publication, which it was created to furnish,” and that the clause in the by-laws which sought to restrict the Publishing Company from obtaining news from other sources than from the Associated Press, “is an attempt at restriction upon the trade and business among the citizens of a common country. Competition can never be held hostile to public interests, and efforts to prevent competition by contract or otherwise can never be looked upon with favor by the courts.” The court also held that the enforcement by the Associated Press of the clause there complained of, would tend to create a monopoly in its favor and that thereby it “could dictate the character of news it would furnish and could prejudice the interests of the public. Such a power was never contemplated in its creation and is hostile to public interests. That by-law tends to restrict competition, because it prevents its members from purchasing news from any source other than from itself * * * Its tendency, therefore, is to create a monopoly in its own favor and to prevent its members from procuring news from others engaged in the same character of work, and such provision is illegal and void. ’ ’ For the reasons already referred to, we hold that the amendment to Rule XXIV, adopted by the Exchange in the case at bar, is not open to such objections.

Another case relied upon by the Commission Company is New York & Chicago Grain & Stock Exch. v. Board of Trade of the City of Chicago, 127 Ill. 153. That case is likewise not applicable here, in our opinion. There the court held that market quotations, though private property, were so used by the Board of Trade as to the become affected with a public interest and they were therefore subject to such public regulation as was necessary to prevent injury to such public interest, and that the doctrine “would forbid that a.monopoly should be made of them by furnishing them to some and refusing them to others who are equally willing to pay for them and be governed by all reasonable rules and regulations, and would prevent the Board of Trade or the telegraph companies from unjustly discriminating in respect to the parties who will be allowed to receive them.” No such situation as the court thus refers to is presented in the case at bar.

The Commission Company contends that the amendment to Rule XXIV must be considered invalid as against those members of the Exchange who had entered into contracts prior to the adoption of the amendment, relying upon the by-laws as they existed before the amendment, even though such contracts may conflict with the provisions contained in the amendment. That contention is without merit, if for no other reason, because we are of the opinion the contract entered into between the Commission Company and the Broadcasting Corporation contains provisions which violate Rule XXIV as it existed before the so-called radio amendment. We refer to those provisions of the contract calling for the installation of a special wire from the offices of the Commission Company to the Broadcasting Station, the cost of which installation, as well as the rental of such private wire, was to be borne by the Commission Company, and the further provision whereby the Broadcasting Corporation agreed to furnish the Commission Company with either the originals of all letters or telegrams received pertaining to the Commission Company’s program of publicity or copies thereof. In this connection it should further be noted that while the contract between these parties provided that the matter broadcast was to be confined to such as was intended for “general unrestricted reception, and not as a communication to specific individuals, firms or corporations,” the record shows the Commission Company had made use of the broadcasting services of the Broadcasting Corporation “for the purpose of conveying messages to certain individuals designated by name in said radio messages, so as to give said individuals, so communicated with, special and unfair advantages over other individuals similarly situated,” all of which was clearly contrary to the spirit, if not the letter, of Eule XXIV, before the radio came into commercial use and before the amendment to that rule was adopted, so as to extend the rule to cover the new situation presented when that new invention came into such use.

Nor are we able to agree with the contention advanced by the Commission Company, to the effect that “this is * * * the simple case of interfer-' ence by a third person with a contract relationship, ’ ’ in support of which a number of cases have been cited and among them certain cases in which a property owner had entered into labor contracts calling for workmen who were not affiliated with certain organizations, in which cases such owner successfully enjoined those who were endeavoring to interfere with the performance of their contract obligations by such workmen. That is not at all the situation we have here nor is it analagous to it. If the Commission Company, though itself not a member of the Exchange, being joined as party complainant with its officers and employees who are members, is to be heard to claim or seek the benefit of membership rights, contending as it does that, though not actually a member, it has long been treated as such by the Exchange, then it must not seek to avoid all the consequences attaching to such a status, by contending, for the purpose of the point now being referred to, that it is an outside party, whose contract rights are being interfered with by the Exchange with which it has no connection. That must be taken to be its contention if the authorities it relies upon in support of it are to be considered applicable. The contention, in our opinion, is not tenable.

For the reason we have referred to, the decree of the circuit court is affirmed.

Decree affirmed.

O’Connor, J., concurs.

Mr. Presiding Justice Taylor,

specially concurring: I am of the opinion that the Bowles Live Stock Commission Company, a corporation for profit, being one of the complainants, and not being a member of the Chicago Live Stock Exchange, a corporation not for pecuniary profit, has no right, in equity, to question the validity or legality of a by-law of the Chicago Live Stock Exchange, and, therefore, the complainants, on the face of the bill, are not entitled either to an interlocutory, or perpetual injunction. American Live Stock Commission Co. v. Chicago Live Stock Exch., 143 Ill. 210.

For that reason, and, also, for the reasons set forth in the majority opinion, I am of the opinion that the decree of the chancellor should be affirmed.


source: Caselaw Access Project

author: Mr. Justice Thomson

license: Public Domain

text:
    Heidler Hardwood Lumber Company, Appellant, v. Wilson & Bennett Manufacturing Company, Appellee.
    Gen. No. 30,913.
    1. Examination of witnesses — tests of capacity to estimate distances. Objection to a question intended to measure a witness’ capacity to estimate distances, by stating the length of the court room, should have been overruled.
    2. Highways and streets — right of may at street intersections. Under Cahill’s St. eh. 95a, j[ 34, providing motor vehicles shall yield the right of way to those approaching from the right, it is a matter for the jury to decide whether under all the facts such was the duty of a driver who was much nearer the intersection than the one coming from the right and apparently in the exercise of his judgment had time to eros§ the intersection before the other reached it,

      Appeal by plaintiff from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1926.
    Reversed and cause remanded.
    Opinion filed December 29, 1926.
    John Wm. Chapman, for appellant.
    Boy A. Nutt, for appellee.
   Mr. Justice Thomson

delivered the opinion of the court.

The plaintiff Heidler Hardwood Lumber Co. brought this action against the defendant Wilson & Bennett Mfg. Co. to recover damages to one of its motor trucks, caused in a collision with a motor truck belonging to the defendant and operated by one of its servants. The issues were presented to a jury and at the close of the plaintiff’s evidence the trial court instructed the jury to find the issues for the defendant. Upon that verdict, judgment was duly entered, from which the plaintiff has perfected this appeal.

The driver of the plaintiff’s truck testified that he was driving east on Fourteenth Street, approaching Kostner Avenue, in the City of Chicago. His truck was a 5-ton truck 20 feet long. He was driving at about 8 miles an hour. The property at the southwest corner of Kostner Avenue and Fourteenth Street was vacant. As he approached Kostner Avenue he looked •south and saw the defendant’s truck, which was a much lighter truck, approaching from that direction. The defendant’s truck was then about 150 feet from the intersection. The plaintiff’s driver thought he had time to get over the intersection before the defendant’s truck would reach it, and he kept on going. When the plaintiff’s truck had reached a point where the front of it was across Kostner Avenue, the defendant’s truck struck the rear of it, pushing it over against the curb on the northwest corner, causing the damages complained of. As the defendant’s truck was coming north in Kostner Avenue, it was being driven in about the middle of the street. As the plaintiff’s truck proceeded across the intersection, the driver of the defendant’s truck apparently put on the brakes and that vehicle skidded somewhat to the east and the front end of it struck the rear end of the plaintiff’s truck, as above stated.

The driver of plaintiff’s truck testified that when he saw the defendant’s truck approaching about 150 feet south of the intersection, the latter vehicle was being driven 20 to 25 miles an hour. There was about an inch of snow on the ground and the pavements were slippery. At one point plaintiff’s driver said he was about 50 feet from the intersection when the defendant’s truck was about 150 feet from it, and at another point this witness testified that he “was closer than that,” to the intersection when the defendant’s truck was 150 feet away. The driver of the plaintiff’s truck was very apparently confused in giving distances in feet in answer to the questions which were put to him. At one point he statéd that when he reached the curb line of the intersection the defendant’s truck was 25 or 30 feet away. In view of the fact that the plaintiff’s truck, which was 20 feet long and which was being driven at a speed of 8 miles an hour, got to a point where the rear end of it was over in the east half of Kostner Avenue, before the defendant’s truck, going 20 to 25 miles an hour, reached a point where its front end was in the south half of Fourteenth Street, this last statement of the witness was clearly impossible. Where the front end of a vehicle going north collides with the rear end of a vehicle going east, in the southeast quarter of the intersection, and the evidence shows the vehicle going east was proceeding at a rate of 8 miles an hour while the other one going north was proceeding at a speed of 20 to 25 miles an hour, it is certain that the vehicle going east must have come into the intersection at a time when the vehicle approaching from the south was something over 20 to 25 feet away.

On further cross-examination, the driver of the plaintiff’s truck testified that he did not stop his truck when he reached the intersection because, at that time, the defendant’s truck was further away than he was and he thought he had time to proceed over the intersection and cross it before the defendant’s truck reached it — “I thought I could make it across before he got to me, ’ ’ — and upon being asked why he thought that, he answered that it was because “I did not have so far to cross.” At one point in the testimony of this witness, on redirect examination, he was asked how far the defendant’s truck was from the intersection when his truck had arrived there, in comparison with the length of the court room. Objection to this question was sustained, the court remarking that the witness had stated the distance in feet, and that “twenty feet was twenty feet” and that ended it. In our opinion, the question was proper and the witness should have been permitted to answer it. As this court had occasion to remark in Louthan v. Chicago City Ry. Co., 198 Ill. App. 329, the testimony there presented showed that “estimates made by the witnesses as to the distance between the car and the wagon, when stated in feet, is exceedingly inaccurate and very unreliable. ’ ’ When a witness has been asked how far some other person or object was away from him when he was at a given point, and he has stated what that distance was in feet, it is always proper to test the ability of the witness to give distances in feet, by asking him to state the distance with relation to the length of the court room, for example, or to ask him how long he would say the court room was.

Section 33 of the Motor Vehicle Law (Cahill’s St. ch. 95a, 1i 34) provides that “motor vehicles traveling upon public highways shall give the right of way to vehicles approaching along intersecting highways from the right and shall have the right of way over those approaching from the left.” The important thing to determine, in considering the effect of this statute, is, when may a car be said to be “approaching from the right” within the meaning of the statute? This court has had occasion to interpret that statutory provision and apply it to facts presented in a number of cases. In Lenartz v. Funk, 224 Ill. App. 180, the evidence showed that a touring car, approaching an intersection from the right at a speed of 10 to 12 miles an hour, reached the intersection when a truck, approaching from the left at a higher speed was 50 feet from the intersection. The driver of the truck testified he could have stopped his truck “in about 3 feet” — he contended he was driving slowly. He did not stop or slow down but drove ahead and the front part of the truck struck the rear part of the touring car and turned it over. The owner of the touring car was the plaintiff. The issues were submitted to a jury who found for the plaintiff. In affirming the judgment this court said that the touring car was “approaching from the right,” within the meaning of the statute, and so had the right of way, and it was the duty of the driver of the truck to check its speed sufficiently to permit the touring car to pass.

In Partridge v. Eberstein, 225 Ill. App. 209, two cars collided at an intersection and each owner sued the other. The cases were tried together and the issues were submitted to the trial court, and it was held neither could recover. The evidence showed the cars were being driven at about the same speed and one reached the intersection about 50 feet ahead of the other. In the course of its opinion in that case the court said: “Whatever the exact distance may have been, it is apparent that plaintiff’s automobile was approaching the intersection of the highways from the right and that under the statute it was the duty of the defendant to give the right of way to plaintiff’s automobile. ’ ’ With that statement we are unable to agree, for reasons hereinafter referred to.

In the same case the court also said that a vehicle might be said to be approaching an intersection from the right, within the meaning of the statute, and so entitled to the right of way over one approaching the intersection from the left, when. the driver of the latter, in the exercise of due care, would, or should see that, unless he yielded the right of way, the vehicles would or might collide. In passing on the question of whether due care was exercised by the drivers of the respective cars involved, two principal elements must be taken into consideration, namely, the relative positions of the two cars with respect to the intersection and their respective rates of speed. Usually the question of whether, in view of the relative positions of the two cars, with respect to the intersection, and their respective rates of speed, the driver of the car approaching the intersection from the left, should have seen that the cars would or might collide, unless he yielded the right of way, is one of fact for the jury to determine. Of course, like similar questions of fact, this may sometimes become one of law, but only where, in the opinion of the court, all reasonable minds would reach the same conclusion.

It would seem to be clear that the statute does not mean that the driver of a vehicle approaching an intersection must yield the right of way to one approaching the same intersection on his right, without regard to the distance that vehicle may be from the intersection when he reaches it or to the rates of speed at which the two vehicles are traveling. When the driver of a vehicle approaches an intersection and he sees another vehicle approaching from the right, at a greater distance from the intersection and at a speed such that, in the exercise of due care, he believes he will be across the intersection before the vehicle approaching from the right reaches it, then, in our opinion, the latter car is not one ‘‘approaching from the right” within the meaning of the statute, and so as to require such driver to stop or yield the right of way. Whether, in exercising his judgment and going ahead, the driver exercised due care, is, we repeat, ordinarily a question for the jury to decide. Such would be the situation, in our opinion, where, as in the case at bar, the evidence showed that the collision occurred when the car approaching from the left had reached the area beyond the middle of the intersection and the one approaching from the right had not then reached the middle of the intersection and where the car coming in from the left was struck in the rear by the front part of the car coming in from the right. In that situation, we believe it may not be said, as a matter of law, that the driver of the vehicle approaching from the left failed to exercise due care in believing that the car coming in from the right, not having reached the intersection when he did, was sufficiently far away, that, considering the rates of speed of the two cars, he had time to cross the intersection before the other car reached his line of travel. In other words, in such a situation, we believe that it may not be said, as a matter of law, that the statute applied, and that the driver coming to the intersection from the left proceeded across at his peril. It was a question for the jury to decide on all the evidence.

Other cases in which this court has had occasion to apply this statute to various situations, and in which, the decisions involved the question as one of fact, are Salmon v. Wilson, 227 Ill. App. 286; Zapf v. Kutten, 229 Ill. App. 406; Darling & Co. v. Yellow Cab Co., 238 Ill. App. 326; Owitz v. Chindbloom, 239 Ill. App. 674; Goldberg v. Philpott, 240 Ill. App. 669, and Boyda Dairy Co. v. Walsh, 242 Ill. App. 633.

In the Salmon case the defendant contended that the trial court erred in refusing to instruct the jury that he had the right of way, as a matter of law, under the statute, inasmuch as he was approaching the intersection from the right. The court held that in view of the circumstances disclosed by the evidence, the instruction was properly refused, saying that manifestly the statute did not intend to give one approaching an intersection from the right the right of way over one approaching from the left “regardless of the distance the approaching cars may be from the point of intersection. It does not contemplate that the right may be invoked when the car from the right is so far from the intersection at the time the car from the left enters upon it, that, with both running within the recognized limits of speed, the latter will reach the line of crossing before the former "will reach the intersection * * *. The statute contemplates the assertion of such right of way where cars approach the intersection at about the same time.” We again express our agreement with that holding, as we did in Darling & Co. v. Yellow Cab Co., 238 Ill. App. 326.

Apparently, the trial court allowed defendant’s motion for a peremptory instruction in the case at bar, at the close of the plaintiff’s evidence, on the authority of McCarthy v. Fadin, 236 Ill. App. 300. An examination of the briefs filed in that case in this court shows that the case was tried by the court without a jury. The question of the applicability of the statute to the facts was treated as one of fact. In the course of the opinion, however, the court said that the driver approaching the intersection from the left “should have observed the speed of the other car, and, if necessary, he should have slowed down or stopped or, reversed, in order that the other car might cross. * * * It is obligatory upon the drivers of automobiles to observe this rule of the right of way, and if one ignores and violates this and an accident results thereby, he has been guilty of contributory negligence which bars any recovery from the other party for resulting damages.” The evidence in that ease showed that when the plaintiff came almost to a stop at the intersection, the car of the defendant, approaching from the right, was 125 feet away. We are unable to agree with the statements quoted above, as applied to the facts just referred to. The court there quotes from Mathes v. Aggeler & Musser Seed Co., 179 Cal. 697, where the court said of a similar statute that it “positively gave to the defendant * * * the right of way at the intersection, unless she was so far from the intersection that she would not come within the definition as a person approaching the intersection.” Both in the (Partridge case and in the McCarthy case the court relies upon the case of Brillinger v. Ogias, 186 N. Y. App. Div. 221. A more recent decision of the court of appeals of that State is to be found in the case of Ward v. Clark, 232 N. Y. 195. There the court, in commenting upon the New York Traffic Law, requiring every driver approaching a street intersection, to grant the right of way at such intersection to any vehicle “approaching from his right,” said: “The privilege thus conferred is not inflexible and absolute. A right of way, like a burden of proof, will establish precedence when rights might otherwise be balanced. It helps us little when without it the balance would be unequal. A right of way might turn the scales if, when the plaintiff started across, the cars had been equidistant, or nearly so, from the point of the collision, due regard being had also for the speed of their approach. Even with the distances what they were, it was an element which the triers of the facts were to consider in their estimate of conduct. That, in the circumstances of this case, is, we think, the extent of its significance. The plaintiff was not to wait until there was no other car in sight. Such a rule would be unworkable in crowded cities. He was to wait until it was reasonably safe to start. Whether he started when there was danger, was a question for the jury.” Whether the finding of the trial judge in the McCarthy case was against the manifest weight of the evidence, in view of all the circumstances disclosed, including the question of the rates of speed as well as relative distances, is apart from the question presented here. We are unable to agree with the statements quoted above from the McCarthy case, except when they are confined to such a specific situation of fact as might warrant them.

In Spawn v. Goldberg, 94 N. J. L. 335, a statutory provision similar to ours was involved. In that case the court said, in answer to a contention substantially to the effect that the statute gave the driver approaching the intersection from the right the right of way as a matter of law, “as to that contention it is a sufficient answer to say that such provision was not intended to provide an exclusively hard and fast rule, applicable to all hazards and in all situations, regardless of actual conditions, and thus liberate from responsibility one who adheres to the regulation, and is otherwise reckless and indifferent to the situation of others; and so the fact that the driver of the jitney bus in which the plaintiff was riding failed to accord to the defendant the right of way as directed by the Traffic Act is not in itself a sufficient reason for a direction of a verdict for the defendant, when, as here, such fact is but one factor in the situation, which, considered as a whole, presents a jury question as to the defendant’s negligence under all the circumstances. Paulsen v. Klinge, 92 N. J. L. 99, 104 Atl. 95; Winch v. Johnson, 92 N. J. L. 219, 104 Atl. 81.”

In Erwin v. Traud, 90 N. J. L. 289, an ordinance was involved which contained, in substance, the same provisions as are found in our statute. In passing on that ordinance the court said:

“Under the requirements of this ordinance, if the two vehicles here involved reached the intersection substantially at the same time, appellant’s ear should have been permitted to cross first, and the claim is therefore made in his behalf that he was not negligent in assuming, without looking to see (if he did not look), that no vehicle wras crossing from his left at the same time, that he was crossing, and that there should have been a nonsuit or a direction of a verdict in his favor on this ground.
“We are unable to adopt this view for two reasons:
“First. The evidence was of such a nature that it was a question of fact whether the two vehicles did reach the crossing at substantially the same time. There was evidence that appellant’s car was running 'very fast,’ at a 'terrible gait,’ and that it struck the auto bus on the latter’s side. From this the jury were justified in finding, if they did .so find, that the auto bus reached the crossing first and was consequently entitled to cross first.
“Second. The fact, if it was a fact, that appellant’s car was entitled to cross before the auto bus crossed, did not absolve appellant’s driver from (using the language of Mr. Justice Kalisch in Pool v. Brown, 98 Atl. 262) his 'legal duty to use reasonable care to avoid colliding with other vehicles and persons in the public highway. ’ ”

We concur in the reasoning adopted by the courts, in the decisions just referred to, to the effect that when a collision occurs at a highway intersection, and the evidence shows the driver of the vehicle approaching from the left failed to yield the right of way, that fact is not, in itself, sufficient reason for directing a verdict against him, as a matter of law, when, under all the evidence, such fact was but one factor in the situation, which, when considered as a whole, presents a question of fact for the determination of the jury.

For the reasons given, we are of the opinion that the motion of the defendant, for a peremptory instruction at the close of the plaintiff’s case, should have been denied. The judgment of the superior court is therefore reversed and the canse is remanded to that court for a new trial.

Judgment reversed and cause remanded.

Taylor, P. J., and O’Connor, J., concur.


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    The People of the State of Illinois ex rel. Edward J. Mitchell, Appellee, v. City of Chicago et al., Appellants.
    Gen. No. 31,062.
    1. Officers and public employees — extent of review of decision of Civil Service Commission. A reviewing court will not decide whether a Civil Service Commission decided rightly or wrongly in removing a policeman from duty,' but only whether it had jurisdiction and did so in the legal manner.
    2. Officers and public employees — remedies to secure reinstatement of Civil Service employee. Both certiorari and mandamus may be used as remedies to secure reinstatement of a police, officer claimed to have been wrongfully removed by a Civil Service Commission.
    3. Officers and public employees — when petition for mandamus to secure reinstatement demurrable. Where a petition for mandamus showed on its face that the ouster of a policeman complained of was done by the Civil Service Commission with jurisdiction and on full hearing and in compliance with the law, a demurrer thereto should be sustained.
    Appeal by plaintiffs from the Circuit Court of Cook county; the Hon. Philip L. Sullivan, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1926.
    Reversed.
    Opinion filed December 29, 1926.
    Francis X. Busch, Corporation Counsel, and Francis J. Vurpillat, Assistant Corporation Counsel, for appellants.
    Michael F, Byan, for appellee,
   Mr. Justice Thomson

delivered the opinion of the court.

The petitioner, Mitchell, filed a petition in the circuit court of Cook county, praying for the issuance of a writ of mandamus against the respondents, requiring his reinstatement as a police patrolman in the Civil Service of the City of Chicago, on the ground that his previous discharge from that position, by the Civil Service Commission, was illegal. The respondents demurred to the petition and the trial court overruled the demurrer. Respondents then elected to stand by their demurrer, whereupon, the trial court ordered the writ of mandamus to issue as prayed for. To reverse that judgment the respondents have perfected this appeal.

The material facts alleged by the petitioner in his petition, and for the purpose of this decision, admitted by the demurrer of the respondents, were the following: From 1906 to February, 1924, the petitioner occupied the position of police patrolman, which is provided for by certain laws and ordinances which were set out in the petition. Such position had been classified in the Civil Service, and the petitioner had successfully passed an examination for the position, had been placed upon the eligible list and thereafter been certified for appointment by the commission, and duly appointed by the superintendent of police to such position of police patrolman, which position he was occupying in February, 1924, as above stated. '

Under date of February 6, 1924, the superintendent of police filed written charges together with specifications, against the petitioner, with the Civil Service Commission. These charges involved violation of certain of the rules and regulations of the department of police. The charges preferred set these violations forth as follows: (1) Conduct unbecoming a police officer or employee of the police department; (2) neglect of duty; (3) violation of criminal law; (4) receiving bribes in money or other valuable things; and (5) neglect to turn over all property recovered or taken from person arrested to proper officer or other proper person, without unnecessary delay. The written specifications which accompanied these charges set forth with particularity the acts and conduct of the petitioner which were charged to constitute the offenses claimed to have been committed by the petitioner. Due notice in writing was served upon the petitioner, setting forth the filing of these written charges, copy of which was furnished to him, and he was notified of the time fixed for the hearing of the charges. The petitioner appeared at such hearing with counsel, and objected to the jurisdiction of the commission and was overruled. At the conclusion of this hearing, the petitioner was ordered discharged from the Civil Service of the City of Chicago. There is set forth, in his petition for mandamus, the finding of the trial board of the Civil Service Commission in full. That finding recited the written charges at length, the notice served upon the petitioner, the fact that a copy of the charges had been furnished to him, and that he had appeared in person and by counsel, and participated in the hearing; and further, that the commissioners found that they had jurisdiction of the subject matter and of the person of the respondent in those proceedings, the petitioner here; and their finding set forth that from a consideration of all the evidence before them they found certain facts to be true and these facts were set forth in the finding or final order of the trial board, in detail. They were to the effect that on September 16, 1921, while Mitchell was acting as a patrolman in the department of police in the City of Chicago, and on duty as such patrolman, he had unlawfully taken four cases of whisky from a truckload of whisky, which had been detected by him while standing on the street, and he had failed to turn them over to the police custodian or to report them to his superior officer; that he had stolen and carried this whisky away, in violation of the law; and that later on the same day he had unlawfully taken possession of a motor truck, and together with certain confederates had unloaded approximately one-half of the cases of whisky from the truck which had been detected earlier in the day, to the truck which they had unlawfully commandeered; that he arranged with another to have the truck which had been apprehended earlier in the day, reported as stolen and that this report was made to one of the police stations by one of Mitchell’s confederates, after which, Mitchell accompanied the truck, loaded with whisky, to a stated point in the City of Chicago, where, after arranging to notify the police of the location of the truck, he disappeared from the scene; and that a few days later Mitchell attempted to negotiate a settlement for the whisky which had been unlawfully removed from the apprehended truck, but that these negotiations failed to materialize. By their order, the trial board then proceeded to find that Mitchell was guilty of each of the offenses charged, except the third.

In his petition for mandamus, the petitioner further set forth that all these proceedings before the Civil Service Commission took place after he and several others had been indicted by the Federal Grand Jury for alleged violation of the Prohibition Act, and after he had been tried on that indictment and found not guilty by a jury on January 11, 1924. He alleged further that the charges preferred against him before the Civil Service Commission “were the same identical charges on which your petitioner was charged before a jury in the District Court of the United States,” and that he was not guilty of the charges upon which he was indicted nor of those filed against him before the Civil Service Commission. Petitioner alleged further that there was no evidence produced before the commission proving, or tending to prove, the matters stated in the charges and specifications filed with the commission by the superintendent of police; and that the matters alleged in those charges and specifications did not constitute an offense for which he could lawfully be dismissed from his position as a patrolman, because of the fact that he had been found not guilty in the trial of the indictment returned against him in the Federal Court. He alleged further that the evidence produced before the commission showed that he was not guilty of any of the matters stated in the charges and specifications filed with the commission; that the commission was without jurisdiction to try him or order his removal from his position, because of the fact that no cause of removal was exhibited as required by section 12 of the Civil Service Act [Ca-hill’s St. eh. 24, If 697]; that the commission failed to follow its rules governing trials; and that it permitted prejudicial and incompetent evidence to be introduced, and kept out proper evidence; that the commission was guilty of bad faith and exceeded its jurisdiction; and that its finding and decision was an arbitrary abuse of its powers, and that the commission had ignored the verdict in the Federal Court and refused to abide by it. Another allegation made by Mitchell in his petition was “that the records of the Commission indicate that petitioner did not have an opportunity to be heard in his own defense and that the cause was predetermined and prejudged.” As part of the petition there were attached to it- the indictment returned against Mitchell and his associates in the Federal Court, and the judgment of the court in that case.

In support of their appeal the defendants contend that the writ of mandamus will not lie to review the proceedings of the Civil Service Commission, citing People ex rel. Miller v. City of Chicago, 234 Ill. 416; People ex rel. Qualey v. City of Chicago, 203 Ill. App. 191; and People ex rel. Aeberly v. City of Chicago, 240 Ill. App. 208. In the Miller case the relator sought to have the proceedings of the Civil Service Commission, by which he had been removed as a lieutenant of police, reviewed by means of a writ of mandamus. The court did not there decide whether the proper procedure was by petition for mandamus or for certiorari, but it was held that “even granting that the courts have power, by mandamus, to review the findings of such Civil Service Commissioners,” there was nothing presented in the record of that case which would warrant the relief which the circuit court had granted. In the course of its opinion in that case the court said that “Where acts and duties necessarily call for the exercise of judgment and discretion on the part of an officer, body or .person at whose hands performance is required, mandamus will not lie to direct how such discretion shall be exercised.” Such holding is not pertinent, in our opinion, to a consideration of whether mandamus or certiorari is proper in seeking relief against action of a Civil Service Commission. ‘Whether such relief is sought by mandamus or certiorari, in neither case will the reviewing court direct how the commission shall exercise its discretion, for the reviewing court may not go into the question of whether the commission decided the issue presented to it rightly or wrongly, but will merely inquire, from the record of the proceedings before the commission, whether it had jurisdiction, under the law, and whether it proceeded to consider and determine the matter presented to it as the law prescribes. Where the relief prayed for is granted, it is never on the theory that the commission did not properly exercise its discretion or that it decided the issue of fact presented to it wrongly, but rather on the ground that the commission had no jurisdiction or that the procedure was in some way illegal. Such being the case it would seem that either certiorari or mandamus might properly be availed of as a remedy for the relief sought.

In the Qualey case, supra, the court held that the findings of the Civil Service Commission could not be reviewed upon the question of the innocence or guilt of the petitioner. The writ prayed for in that case was one of mandamus rather than certiorari, but the court did not distinguish between the two.

In the Aeberly case, supra, it was held that mandamus will not lie to review the proceedings of a Civil Service Commission, the court remarking that the writ of mandamus is never properly directed to a subordinate tribunal, exercising judicial or discretionary power, “to compel them to decide in a particular manner.” But, as previously stated, whether the review is by mandamus or certiorari, if the opinion of the court is that the commission did not have jurisdiction or has not proceeded in the manner provided by law, then the court grants the relief sought, but in so doing the court does not endeavor to direct the commission “to decide in a particular manner” but rather to reinstate the petitioner to the office from which he had been removed, on the ground that such removal was illegal, either because the commission was without jurisdiction or has failed to proceed in the manner provided by law. Such being the remedy, mandamus would seem to be quite as appropriate as certiorari.

As the court said in the Aeberly case, writs of mandamus and certiorari have both been used for the purpose of reinstating one who has been removed from an office, or suspended illegally. In the following cases certiorari was the remedv employed: Joyce v. City of Chicago, 216 Ill. 466; Powell v. Bullis, 221 Ill. 379; Kammann v. City of Chicago, 222 Ill. 63; City of Chicago v. Condell, 224 Ill. 595; Blake v. Lindblom, 225 Ill. 555; Funkhouser v. Coffin, 301 Ill. 257; and on the other hand, mandamus was the remedy employed in the following cases: People ex rel. Hayes v. City of Chicago, 142 Ill. App. 103; Quinn v. City of Chicago, 178 Ill. App. 115; Ellfeldt v. City of Chicago, 189 Ill. App. 610; Stott v. City of Chicago, 205 Ill. 281; City of Chicago v. People ex rel Gray, 210 Ill. 84; McNiell v. City of Chicago, 212 Ill. 481; Fitzsimmons v. O’Neill, 214 Ill. 494; People ex rel. Lane v. Lindblom, 215 Ill. 58; People ex rel. Miller v. City of Chicago, 234 Ill. 416; People ex rel. Blachly v. Coffin, 279 Ill. 401, and People ex rel. Jacobs v. Coffin, 282 Ill. 599.

In Heaney v. City of Chicago, 117 Ill. App. 405, this court, referring to People ex rel. Lindblom, supra, said: “We have nothing to do in this case with the justice of the finding which the Civil Service Commission made against the plaintiff in error, nor whether it erred in its decision on the facts, or even whether it erred in its rulings of law, * * * the only questions open in the Superior Court were whether the Civil Service Commission had jurisdiction, and whether it followed the form of proceedings legally applicable in such cases.” The remedy was sought in that case by means of a petition for certiorari. In People ex rel. Hayes v. City of Chicago, supra, where the remedy sought was by means of a petition for a writ of mandamus, this court referred to what it had had occasion to say in the Heaney case, just quoted, and then said: “It makes no difference whether the review is attempted by certiorari or in a petition for mandamus; the inquiry on our part and on the part of the Circuit and Superior Courts is limited to the questions whether the Commission had jurisdiction and whether it followed the form of proceedings legally applicable in such cases.” As already noted, in the event the court is of the opinion that the commission did not have jurisdiction or did not follow the form of proceedings legally applicable in such cases, the relief awarded is not in the form of a direction to the commission to decide the issue which was presented to it in a certain way, but it is a direction to reinstate the petitioner for a reason entirely apart from the merits of the issue which was presented to the commission. We are, therefore, of the opinion that the demurrer interposed in the case at bar by the defendants may not be supported merely upon the fact that the remedy sought to be employed was mandamus rather than certiorari.

However, we are further of the opinion that the facts recited in the petition itself show on their face that in the proceedings before the Civil Service Commission, resulting in the order of dismissal, which the petitioner here complains of, they did have jurisdiction of the subject matter presented to them, and also that they did proceed in the manner provided by law. The facts set forth in the petition show that written charges and specifications were filed with the commission as the law provides they shall be when, there is claimed to be a cause for the removal of one in the Civil Service; that the petitioner was notified of the charges and specifications; that the petitioner appeared before the commission in person and by counsel, and was found guilty of offenses charged against him; the commission’s finding stated the specific acts of which the petitioner was found guilty.

Such a record being recited in the petition, that pleading itself establishes that the Civil Service Commission had jurisdiction and proceeded according to law. For that reason the demurrer interposed by the defendants should have been sustained. The judgment of the circuit court is, therefore, reversed.

Judgment reversed.

Taylor, P. J., and O’Connor, J., concur.


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    Elizabeth Hamer, Appellee, v. Globe Mutual Life Insurance Company, Appellant.
    Gen. No. 31,072.
    1. Insurance — allegation and proof of falsity of answers in application. Answers to questions in Ms application for life insurance by the insured, if they are untrue, must be so alleged and proved by the insurer to be used as a defense against insurance claim by the beneficiary.
    2. Insurance — burden of proof as affected by incorporating restatement of application in policy. Insurer may not reverse the rule that burden is on it to prove that the insured’s answers to his application questions were untrue by incorporating a practical restatement of the application agreement in its policy.
    3. Insurance — provisions for good health when policy delivered. If insurer wishes it conditioned precedent to beneficiaries collecting insurance, that insured be in sound health when the policy is delivered, it must insert that provision by clear language in the policy.
    4. Insurance — when good health of insured on date of policy established prima facie. Plaintiff in her suit against a life insurance company made out a prima facie ease of sound health of the insured on date of policy by the Medical Examiner’s Report stating the applicant was in perfect health and a good risk at the time of the examination wMch may be presumed in absence of evidence to the contrary to hold true at the date of the policy two months later.

      5. Insurance — when death certificate admissible as to cause of death. Death certificate, complying with statutory requirements, and showing insured had suffered from alcoholism for two years prior to his death, contrary to his statement in his application, was competent and material evidence for the insurer on suit against it for insurance under a policy providing the company should be released from liability if insured should die from alcohol used to excess within one year of policy’s date.
    Appeal by plaintiff from the Circuit Court of Cook county; the Hon. Harry M. Fisher, Judge, presiding. Heard in the third division of tMs court for the first district at the March term, 1926.
    Reversed and cause remanded.
    Opinion filed December 29, 1926.
    A. W. Fulton* and S. J. Fulton*, for appellant.
    Albert A. Luthmers and Edward Gr. Purkhiser, for appellee.
   Mr. Justice Thomson

delivered the opinion of the court.

By this appeal the defendant company seeks to reverse a judgment for $2,213.80, recovered against it by the plaintiff in an action brought by the latter in the circuit court of Cook county, based upon an insurance policy issued by the defendant company to the plaintiff’s husband. The issues were submitted to the trial court without a jury, resulting in a finding for the plaintiff and the entering of the judgment appealed from.

In support of its appeal the defendant contends that the trial court erred in denying its motion for a finding in its favor, at the close of the plaintiff’s evidence, on the ground that the plaintiff had failed to make out a prima facie case, inasmuch as she submitted no evidence showing or tending to show that her husband was in sound health on the date of the policy. This contention was based upon a paragraph in the policy which was entitled, “Preliminary Provisions,” which provided that “This policy shall not take effect if the insured, on the date hereof, is not in sound health, or if before its date the insured has been rejected by any company, association, or society, or has been attended by a physician for any serious disease or complaint, or has had before said date any pulmonary disease, chronic bronchitis, cancer or disease of the heart, liver or kidneys, unless otherwise stated in the application, copy of which is hereto attached as evidence thereof, or if payable to a person having no insurable interest in the life of the insured.” It is the defendant’s position that this paragraph, being included in the policy itself, it was a necessary part of the plaintiff’s prima facie case to show that her husband was in sound health on the date of the policy. It is the contention that the sound health of the insured on the date of the policy was a condition precedent, within the definition of that expression as set forth in the textbooks on the law of insurance, referring to the subject. Cooley’s Brief on the Law of Insurance, Vol. 2, p. 1151; 1 Joyce on Insurance, secs. 97a, 1951a.

In the first place it should be noted that although the plaintiff alleged in her declaration that her husband, “during his lifetime, in all respects complied with the conditions of the policy of insurance,” the defendant did not file a plea of the general issue, but, by a special plea, alleged that the policy provided that it would not take effect if the insured, “before or on the date of the policy, was not in sound health,” and then averred that “the insured was not in sound health upon the date of the policy but on the contrary was in unsound health, and that the policy never took effect.” This pleading would indicate that the defendant was treating this matter as an affirmative defense, on which it had the burden of proof.

In support of its contention the defendant cites Daniels Motor Sales Co. v. New York Life Ins. Co., 220 Ill. App. 83, and other similar cases. There the contract of insurance contained a clause appearing in the application, which presumably was signed by the insured, in which the latter agreed “that the insurance hereby applied for shall not take effect unless the first premium is paid and the policy delivered to and received by me during my lifetime and good health.” It was provided that the application should form a part of the contract of insurance. It was held that the clause quoted amounted to a condition precedent making it incumbent upon the plaintiff to prove affirmatively that the insured was in good health at such time, before it could recover upon the policy.

In our opinion the “Preliminary Provisions” paragraph appearing in the policy involved here may not reasonably be given that effect. A document appearing in this record, and referred to by counsel for the defendant, at the time it was offered, as “the regular application, ’ ’ contains a number of questions with the answers given by the insured and written down by the medical examiner and thereafter signed by the insured. One of these was, “Are you now in sound health?” The answer given was, “Yes.” Another question was whether the insured was or had even been affected by any of 17 specified diseases, to which the answer given was, “No.” Another question asked the insured was whether he had ever had any serious illness or disease other than such as may.have been specified in the answer to the question just referred to, and the answer was, “No.” Another question asked the insured was when was he last attended by a physician and the answer given was, “Eighteen years ago. ’ ’ The insured was then asked for what complaint he was then treated and he answered, “Abdominal pain.” It was said by the Supreme Court in Continental Life Ins. Co. v. Rogers, 119 Ill. 474, that “the rule seems to be well settled in this State that it is not necessary for the plaintiff, in an action on the policy, to either allege or prove such matters as appear in the application, only. To be availed of as a defence, without regard to whether they are warranties, or representations, merely, their falsity or breach by the assured must be set up and proved by the defendant, as a matter of defence.” The statement appearing in the “Preliminary Provisions” paragraph of the policy involved here is merely a statement by the Insurance Company of substantially what the assured agreed to in connection with his application when he signed a statement immediately following the questions and answers above referred to, which statement was to the effect that the parties agreed “that the above questions and answers * * * are material to the risk, and any untrue or false statement or answer made to the examining physician, agent or other person, shall make the policy null and void.” In this statement signed by the assured in connection with his application, he further declared that the answers to the foregoing questions were true and that they were to form the basis of the contract of insurance proposed to be issued and “that if a contract of insurance is issued it shall not be binding on the Association (defendant) unless upon its date and delivery, I shall be alive and in sound health.” It is the long established rule in this State, as pointed out in the Rogers case, supra, that representations or warranties made by the insured, in answer to questions put to him in connection with his application, and making up a part of that application, if in fact untrue, to be availed of by the insurer as a defense, must be set up and proved by the defendant insurer. In our opinion the insurer may not reverse that rule as to burden of proof, by including a clause in the body of the policy which amounts to a restatement in the language of the insurer, of the agreement to which the insured has subscribed in making his application. If such were the effect of a paragraph like the one involved here, and it should be held that by reason of that paragraph appearing in the body of the policy, it was a part of the plaintiff’s prima facie case, in an action on the policy, to show that the insured was in sound health on the date of the policy, it would necessarily also have to be held that for a similar reason it was a further part of the plaintiff’s prima facie case to show that before the date of the policy the insured had not been rejected by any company; had not been attended by a physician for any serious illness; had never had “any pulmonary disease, chronic bronchitis, cancer or disease of the heart, liver or kidneys, unless otherwise stated in the application,” and that the policy was payable to one who, had an insurable interest in the life of the insured. In our opinion, any such ruling would be unreasonable because of the considerations which have given rise to the rule which makes these representations made by the insured matters of defense. In the application found in this policy, and in practically all similar applications, an insured is asked many questions, reviewing his physical history, with regard to a large number of diseases and complaints. If all these matters are to be made a necessary part of a prima facie case in any action brought on a policy, after death has occurred, frequently long after the policy has been issued, then such contracts of insurance would be practically of no value. On the other hand, if the insurer has reason to believe that any of these representations or warranties is false, then they should be required to so allege and prove.

In Metropolitan Life Ins. Co. v. McKenna, 73 Ill. App. 283, it appeared that a condition on which the policy there involved was issued was that the insured was in sound health at its date. The contest in that case was as to whether he was in fact in sound health at that time and also as to whether the cause of his death was tuberculosis. The court was requested to instruct the jury that in order to recover the plaintiff must prove, by a preponderance of the evidence, that the insured was in sound health at the date of the policy and also that he did not die of any pulmonary disease. It was held that that instruction was properly refused as it did not state the law. The court said: ‘ ‘ Clauses in a policy which limit the liability of the insurer by way of proviso or exception, are solely for his benefit. He must interpose and prove the defense. The insured need not notice them in his pleading or proof, to make a prima facie case.’’

If the insurer wishes to make it a condition precedent to the right of the beneficiary to collect the insurance provided for, that the insured be in sound health at the time the policy is delivered, then, in our opinion, that must be accomplished by language in the policy, clearly to that effect. It may not be done by some paragraph in the body of the policy, substantially amounting to a recital of the agreement which the insured has made in his application in the course of his answers to questions there put to him.

Moreover, in our opinion the plaintiff’s evidence, as it appears in this record, made out a prima facie case, as far as sound health is concerned. The photographic copy of the policy, as it was introduced by the plaintiff, has attached thereto a sheet entitled, “Medical Examiner’s Report.” This consists of a series of questions put to the insured, the answers given by him to the medical examiner and written in by the latter, and a statement or agreement as to the effect these answers shall have, and further providing that if a policy is issued it shall not be binding unless upon its date and delivery the insured shall be alive and in sound health. This is signed by the insured and witnessed by the signature of the medical examiner. The appearance of this photographic copy of the Medical Examiner’s Report is such as to indicate that there was another part to the report, appearing below. This is further shown by the fact that apparently a photographic copy of the same document was later introduced by the defendant as a copy of “the regular application and the one that is photographed and attached to the policy,” as defendant’s counsel described it when it was offered. That exhibit is an exact reproduction of the Medical Examiner’s Report, as we find it attached to the photographic copy of the policy introduced by the plaintiff, down to the signature of the insured and that of the medical examiner as a witness, after which appears a further part of the document, entitled, “Medical Examiner’s Certificate.” This is signed by the medical examiner and consists of a number of answers written in by him, to questions put to him by the insurer, as the medical examiner. In one of these questions he is asked to state the personal appearance of the applicant, as to health. There he wrote, “Good.” Another question was, “Is the applicant, in your opinion, a first class, fair, average or poor risk?” In answer to that question the examiner wrote, “First class.” At the end of the series of questions and answers appearing in this certificate is a place designated for “Remarks,” and at that point the examiner wrote, “Appears in perfect health and a good risk.” This may reasonably be taken as some evidence, at least enough to make out a prima facie case, that the insured was in good health on the date of his application and the day the certificate was executed by the medical examiner, which, according to that document, was on September 23,1922. The policy itself hears the date, November 20, 1922. Nothing appearing to the contrary, at least so far as the plaintiff’s prima facie case is concerned, it would properly be assumed that the health of the insured continued after September 23,1922, and up to the time the policy was dated, to be as the examiner described it on the first mentioned date.

The defendant makes the further contention, in support of its appeal, that the trial court erred in sustaining plaintiff’s objection to its offer of a certified copy of the certificate of death of.the insured. Among the defenses interposed by the defendant in its special pleas, the defendant set up that one of the questions in, the application signed by the insured was as to whether he had ever used wine, spirits or malt liquors, to which he had answered in the negative, and that this, in fact, was untrue as he had been addicted to the use of such liquors. By another special plea, the defendant alleged that under the terms of the policy it was released from all liability thereunder, if, within one year from its date “the insured should die from the use of narcotics, alcohol or stimulants to excess, and the company alleged that within one year following the issuance of the policy the death of the insured did result from the use of narcotics, alcohol or other stimulants, or from alcoholism. The policy was received in evidence. It contains such a provision as is referred to in the plea last mentioned. The certified copy of the certificate of death states that the death occurred on July 15, 1923, which was within nine months after the date of the policy, and that the cause of death was. gastric hemorrhage, due to ulcer, and that the contributory cause was hyperthrophic cirrhosis of the liver, due to alcoholism, the duration of which had been two yea.rs. The certificate of death gave the name of the attending physician who had signed the medical certificate of death. In support of the ruling of the court, the plaintiff contends that the ruling was proper by reason of the fact that the defendant did not lay a proper foundation for the introduction of the death certificate, by showing that it met the statutory requirements as to form of certificate prepared by the Board of Health of the State of Illinois. The certified copy offered in evidence is entitled as follows. “Department of Health of the City of Chicago. Bureau of Vital Statistics. Standard Certificate of Death.” After setting forth the personal and statistical particulars of the deceased, and the medical certificate of death, the date of the death and of the burial, the place of the burial, and the names of the attending physician and the undertaker, there appears the affidavit of M. O. Heckard, M. D., to the effect that he is the Registrar of Vital Statistics of the City of Chicago, and certifies “that the foregoing is a true copy of the records kept by me in pursuance of the laws of the State of Illinois and the ordinances of the City of Chicago.” In our opinion, this document was both competent and material and the trial court erred in sustaining plaintiff’s objection to it. Hancock v. National Council, Knights & Ladies of Security, 230 Ill. App. 654; O’Kane v. National Council, Knights v. Ladies of Security, 227 Ill. App. 369; National Council, Knights & Ladies of Security v. O’Brien, 112 Ill. App. 40; Howard v. Illinois Trust & Savings Bank, 189 Ill. 568; 1 Greenleaf on Evidence, sec. 184.

For the error of the trial court in refusing to admit the certified copy of the death certificate in evidence, the judgment of the circuit court is reversed and the cause is remanded to that court for a new trial.

Judgment reversed and cause remanded.

Taylor, P. J., and O’Connor, J., concur.


text:
    The Baldwin Piano Company, Appellee, v. Congress Hotel et al. Congress Hotel Company, Appellant.
    Gen. No. 31,099.
    1. Innkeepers — when nontransient guest is not a tenant. Contract between a hotel keeper and its guest for rental of one of its rooms by the latter for a year, which contract contained the provision that their relations at all times should be those of innkeeper and guest and not landlord and tenant, creates the relationship of innkeeper and guest and not of landlord and tenant.
    2. Innkeepers- — when lien prior to unrecorded, chattel mortgage. Hotel keeper, retaining innkeeper’s right in a year’s contract for a room with a guest by the provision that their relations should at all times be those of innkeeper and guest and not those of landlord and tenant, had an innkeeper’s lien upon a guest’s piano superior to the rights of a company from whom the piano was bought, holding an unrecorded and unacknowledged mortgage upon it, in its action for replevin thereof.
    Appeal by defendant from the Municipal Court of Chicago; the Hon. Philip J. Finnegan, Judge, presiding. Heard in the third division of this court for the first district at the March term, 1926.
    Reversed and cause remanded.
    Opinion filed December 29, 1926.
    Simeon Straus and Ira E. Straus, for appellant
    Carpenter & Grant, for appellee.
   Mr. Justice Thomson

delivered the opinion of the court.

This was an action of replevin brought by the Piano Company against the Hotel Company and one Weller, to recover possession of a certain player piano which had been sold to Weller by the Piano Company and was in the possession of the Hotel Company. The trial court found that the plaintiff was entitled to possession of the piano, and the plaintiff’s damages for wrongful detention thereof, by the Hotel Company, were assessed at the sum of one cent. To reverse the judgment, the defendant Hotel Company has perfected this appeal.

The record shows that in December, 1924, Weller had been living at the Congress Hotel for a year or more, and at that time he entered into an agreement with the defendant Hotel Company, under the terms of which he engaged a room at the hotel for one year, beginning January 1, and ending December 31, 1925. Under this agreement he was to pay the company $200 each month for the room and the company agreed to reserve the room for his use during the period of the agreement. The usual covenants covering the use of the room by Weller were included in the agreement, and for its upkeep and care by the Hotel Company. The concluding sentence of the agreement thus entered into by the parties was to the effect that “the relationship hereby created shall be construed at all times as that of Innkeeper and Guest, and not as that of Landlord and Tenant.” The record further shows that on January 3, 1925, Weller purchased a player piano from the plaintiff at a price of $1,650, paying $200 down and agreeing to pay the balance in monthly payments of $75 each. The piano was delivered to Weller by the plaintiff company and installed in his room at the hotel. On the day of the purchase of 'the piano, Weller executed a chattel mortgage, which, however, was neither acknowledged before the clerk of the municipal court nor recorded in the recorder’s office, until the day after the institution of these, replevin proceedings, which was on September 23, 1925. On that day, Weller owed a balance of $800 to the Hotel Company. He was also in arrears in his payments to the Piano Company. Early in the morning of that day, representatives of the Piano Company went to Weller’s room at the hotel and found it padlocked. They then got an employee of the Hotel Company to admit them to the room and they took the piano down to the ground floor, and were loading it on their truck when employees of the hotel interfered and stated that in their opinion the Piano Company had no right to remove the piano without a written order from Weller. Upon the insistence of the representatives of the Hotel Company, and their promise to deliver the piano if it was replevied, the employees of the Piano Company put the piano in the baggage room of the hotel. On the same day the Piano Company instituted its proceedings in replevin, but the Hotel Company declined to surrender the piano when the writ was served, taking the position that they had been advised that they had a legal right to retain it, on the strength of their lien as an innkeeper against Weller’s effects.

The only question presented by this appeal involves the relationship which existed between the Hotel Company and Weller. The Hotel Company claims that the relationship of innkeeper and guest obtained as between it and Weller and also that this was their relationship as against the Piano Company. If that is the case, it is conceded that the Hotel Company had an inkeeper’s lien which would give it a right to the possession of the piano as against the Piano Company. The latter contends that whatever relationship existed between the Hotel Company and Weller, as far as they themselves were concerned the fact was, that the hotel was Weller’s permanent home, so as to make him a tenant and the Hotel Company a landlord; and that, at least as against the Piano Company and other third parties, the Hotel Company could not, by special agreement, extend its rights to such as were given it under the Innkeepers’ Act [Cahill’s St. ch. 71].

We shall not review nor refer to the cases cited by the respective parties, as we do not consider them in point. None of them involved such a situation as is presented here. We are of the opinion that although the residence of Weller at the hotel was such as to make him a tenant, in the absence of the agreement he entered into with the Hotel Company, that agreement was one which the parties might properly enter into, and the effect of it was to give Weller the status of a guest and the Hotel Company that of an innkeeper. That status required a greater degree of care of Weller’s property on the part of the Hotel Company than it would otherwise have been obliged to exercise, and, on the other hand, it gave the Hotel Company greater rights against Weller’s effects than the company would otherwise have possessed.

In our opinion, the Hotel Company had a lien as an innkeeper against Weller’s effects, including this piano, to secure the balance due them from him, and this lien was good, even as against the Piano Company, holding an unacknowledged and unrecorded chattel mortgage. The Hotel Company was an innkeeper by occupation and in the business of entertaining guests within the meaning of those terms, as found in the Innkeepers’ Act [Cahill’s St. ch. 71]. In that situation, we are of the opinion that it might properly enter into an agreement with Weller, whereby their status was to be that of innkeeper and guest, with the rights and liabilities attaching to that status under the act, although Weller was not to be a transient. We see no reason why the Piano Company should not be bound by the status fixed by the agreement between Weller and the Hotel Company. No claim is made that the Piano Company knew that Weller was not a transient and relied on a belief on its part that Ms status was that of a tenant, rather than that of a guest.

For the reasons we have given, the judgment of the municipal court is reversed and the cause is remanded for further proceedings not inconsistent herewith.

Judgment reversed and cause remanded.

Taylor, P. J., and O’Connor, J., concur.