text:
    Rebecca Irvin and Hardie Irvin, Appellees, v. Metropolitan-Hibernia Fire Insurance Company, Appellant.
    1. Pleading — how sufficiency of declaration determined. The sufficiency of a declaration must be determined from the deelaratiori alone, and neither the evidence introduced nor the arguments on the trial or in the reviewing court are to be considered.
    2. Pleading — waiver of objection to declaration by pleading to merits. Objections to a declaration are waived by a plea to the merits, unless the declaration is so defective that it will not sustain the judgment.

      3. Pleading — cure of defects of declaration by verdict. Unsubstantial defects of a declaration may be cured by a verdict.
    4. Insurance — rale of construction of insurance contract. An insurance contract is to be interpreted by the same rules as other merchantable contracts, but where the meaning of such a contract is left doubtful by the company, the courts adopt a construction of it most favorable to the insured.
    5. Insurance — necessity to allege compliance with conditions which are not precedent. In an action on an insurance policy, it is not necessary for the declaration to allege compliance with conditions which are not precedent.
    6. Insurance — sufficiency of averment in declaration of consideration to be paid to support judgment. Where a declaration alleges the creation of an oral preliminary contract of insurance in partial consideration of a specified sum to be paid, failure to allege that such sum has been paid or waived does not make the declaration insufficient to support a judgment.
    7. Insurance — prima facie evidence establishing agency of person as fire insurance agent. A copy of a certificate, authenticated by the director of trade and commerce, and filed by a fire insurance company with said director, certifying that it had complied with the laws of the State and that a named person, having been appointed by it as its agent to transact its business is authorized to act as its agent unless the license is terminated, and a like certificate that the company had appointed the named person agent to transact its business, are admissible in evidence in an action on an oral contract of insurance, and prima facie establish the agency of the named person to make contracts of insurance, issue policies, to receipt for premiums or to extend credit therefor.
    8. Insurance — effect of secret restriction of authority of fire insurance agent. A fire insurance company is bound by an oral preliminary contract of insurance made by an agent who it had held out to the public as such, although the company had notified the agent not to write any insurance and to return all the company’s papers, etc., to it, where it did not appear that public notice had been given that the agency had ceased, or that the company had terminated it, or that the insured had notice of such revocation, limitation or restriction of the authority of the agent.
    9. Agency — binding effect on third persons of secret instructions to agent. The secret instructions of a principal to his agent are not binding on the public or on one who has had dealings with the agent acting within the apparent scope of his employment or agency.
    Appeal by defendant from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding.
    Heard in this court at the October term, 1927.
    Affirmed.
    Opinion filed January 20, 1928.
    Rehearing denied February 28, 1928.

      Kramer, Kramer & Campbell, for appellant.
    M. Y. Joyce and L. P. Zerwick, for appellees.
   Mr. Justice Wolfe

delivered the opinion of the court.

This was an action of assumpsit brought by the appellees against the .appellant on an oral preliminary contract of insurance. The appellant has assigned, as one ground of error, the refusal of the trial court to sustain appellant’s motion in arrest of the judgment of the lower court for the reason that the declaration does not. state a cause of action, and is therefore insufficient to support the judgment. If the appellant is correct in this contention, further review of the record beyond an examination of the declaration would be unnecessary by this court. Therefore it is deemed advisable to first dispose of this point in the case.

The essential allegations of the declaration so far as the same are necessary to understand this opinion are as follows: That the defendant “in consideration of the payment by the plaintiff to the defendant of the sum of Thirty ($30.00) Dollars in cash, and for and in consideration of the agreement on the part of plaintiffs to pay to the defendant the further' sum of Twenty-seven ($27.00) Dollars, entered into a verbal contract with the plaintiffs, whereby it agreed to issue an insurance policy, insuring the plaintiffs against loss or damage by fire to their two story frame paper roof building”'; the declaration locates and describes the building of plaintiffs; 'declaration also alleges that the insurance was for the period of three years; also, that “and plaintiffs aver that they then and there paid to the- defendant the said, sum of $30.00 in cash and agreed to pay the defendant the further sum of $27.00 but that nevertheless the defendant failed, refused and neglected to issue and deliver to the plaintiffs the said policy of insurance”; that said building on June 1, 1925, was totally destroyed by fire, and was of the value of $4,000; that defendant afterward denied the existence of said verbal contract and refused to issue and deliver to the plaintiffs the said policy, and refused to pay plaintiffs the loss sustained by reason of said fire to the damage of the plaintiffs of $3,000. To the declaration the defendant filed the plea of nonassumpsit.

Appellant’s specific objection to the declaration is that it does not allege the payment, nor waiver thereof, of the $27 as balance on the premium for the insurance, nor does it allege a tender of said amount to the appellant. And to support this objection appellant cites a number of cases under the general proposition that a declaration must allege performance on the part of the plaintiff of his part of the contract before he can recover on any agreement and in particular under an action on an insurance policy.

The sufficiency of the declaration must be determined from the declaration alone and neither the evidence introduced nor the arguments on the trial or in this court are to be considered. (O’Brien v. Chicago City Ry. Co., 293 Ill. 140.) However, where the defendant pleads to the merits, objections to the declaration are waived, unless the declaration is so defective that it will not sustain the judgment. (Pittsburg, C., C. & St. L. Ry. Co. v. Robson, 204 Ill. 254.) And it is also true that defects of a declaration, when not substantial, may be cured by a verdict. Also in the case of Lassen v. Mitchell, 41 Ill. 101, it is stated that the omission of an averment in a declaration may, in some instances, be cured by a verdict.

It also must be borne in mind that this is not an action on an insurance policy containing conditions precedent to be performed by the defendant in error, but the cause of action is based on a verbal contract of insurance. As is pointed out in the case of Austin Fire Ins. Co. v. Brown, — Tex. Civ. App. —, 160 S. W. 974, the actions on an insurance contract and on an insurance policy are distinct forms of action. An insurance contract is to be interpreted and construed by the same rules as other merchantable contracts, but where the meaning of such a contract is left doubtful by the company, the courts adopt a construction of it most favorable to the insured. (Cottingham v. National Mut. Church Ins. Co., 290 Ill. 26.) In an action on an insurance policy it is not necessary for the declaration to allege compliance with conditions which are not precedent. (See Coen v. Denver Township Mut. Fire Ins. Co., 155 Ill. App. 332.)

In the case of John Hancock Mut. Life Ins. Co. v. Schlink, 175 Ill. 284, quoting from Richards on Insurance, the Supreme Court of Illinois says: “An agent of a life insurance company who is intrusted with the business of closing a contract by delivering the policy is held to have an implied authority to determine how the premium then due shall be paid, whether by cash, or, as is sometimes done, by giving credit, in which case the agent becomes the creditor of the insured and the debtor of insurer. In that event, though the agent subsequently defaulted and the money never reached the company, the policy would still be binding.”

It is not to be assumed that the payment direct to the appellant, of the balance due on the total amount to be paid as premium on the policy agreed to be delivered to the appellees, was a condition precedent to the taking effect of the insurance. It is possible that the contract was completed by some understanding of the extension of credit, or otherwise, between the appellees and appellant’s agent, and in fact appellees were in no wise indebted to the company. If appellant desired a fuller statement of its own contract with the appellees a demurrer should have been interposed to the declaration and it would then have appeared from the amended declaration if the payment of the $27 to the company was a condition — precedent. “A demurrer is the proper proceeding to test the sufficiency of a pleading, and a party, by omitting to demur and pleading to the merits, is not in a position to claim the indulgence of the court.” The above quotation is from the case of Johnson v. Burnside, 3 S. D. 230, 52 N. W. 1057, and in which case it was contended by the appellant therein that the complaint did not state a cause of action because it failed to allege that the plaintiff tendered to defendant a deed executed by the plaintiff in an action to recover possession of chattels which plaintiff surrendered to defendant for real estate which plaintiff alleged was worthless. It is also pointed out in Johnson v. Burnside, supra, and in Mizzell v. Ruffin, 118 N. C. 69, 23 S. E. 927, that there is a distinction between a defective statement of a good cause of action and a statement of a defective cause of action, and the former must be taken advantage of by a demurrer or the defect is waived.

Testing the declaration by the principles laid down in the above cases, and after a careful review of the cases cited by appellant, it is.the opinion of the court that the declaration in this case is sufficient to support the judgment.

The appellant next contends that there is no evidence in the record to prove that one Brown, who was an insurance broker, was the agent of the appellant; and, also, that one Lingle, who is contended by appellees was the local agent of the appellant, had no knowledge, before the fire, of the transaction between appellees and said Brown, and, in fact, that said Lingle was not at that time the agent of appellant; also, that the court erred in overruling appellant’s motions at the close of plaintiff ’s evidence and at the close of all the evidence to direct a verdict for the defendant; that the court erred in refusing the appellant’s offer to prove that Lingle was not the agent of appellant.

It will therefore be necessary to review, briefly, the evidence bearing on these points. The evidence shows that appellees lived in Golden Garden, a subdivision a few miles distant from East Saint Louis. On January 17, 1925, J. M. D. Brown, a school-teacher, came to their home and solicited insurance on their house. It was then agreed between the parties that the insurance was to be for $3,000 and for a term of three years. The premium amounted to $57, and $30 thereof was paid in cash to Brown who gave appellees his receipt for the cash payment. Appellees testified that Brown told them that the insurance was in force after the delivery of his receipt and that the policy, issued by appellant, would be delivered the next week; that the $27 could be paid when appellees had the money. Brown also gave them a card with the name of appellant and his own name and address thereon, and which was introduced in evidence. The house was destroyed by fire on, June 1, 1925, before any insurance policy was delivered to appellees and before the payment of the $27.

After the fire, appellees and Brown called at the office of Irl L. Lingle, who, at one time at least, was the local agent of the appellant. When appellees entered the office of Lingle he inquired of Brown if appellees were the people who were in trouble at Golden Garden about their insurance. When informed that they were, Lingle said: “Well, I guess we will give you about $200.00.” Lingle, also, as testified by appellees, said he would write to the company and see what it would do about the insurance. Appellees further testified that Brown told Lingle that he had paid him the $30 and which Lingle then admitted was true." Brown, as a witness for appellant, testified that he gave Lingle the $30 after the fire, and Brown testified that he reported to Lingle that he had collected $30 on the insurance shortly after he wrote it up.

To prove the agency of Lingle the appellees introduced in evidence, authenticated by the Director of Trade and Commerce of the State of Illinois, a copy of a certificate filed by appellant with, said director certifying that appellant had complied with the laws of the State of Illinois and that “Irl L. Lingle of East Saint Louis, having been appointed by said company” (the appellant) “as its agent is authorized to act as agent for said company to transact its business under said act of Illinois according to law until the 31st of January, 1924, unless this license be sooner revoked or otherwise terminated.” And a like certificate that the appellant had appointed Irl L. Lingle of East Saint Louis agent for the transaction of its authorized business of insurance in the State of Illinois for the term ending January 31, 1925. A similar certificate was also introduced by appellees except that the license of appellant and Lingle’s commission were to expire January 31, • 1926. The transaction between Brown and appellees took place on January 17, 1925, the fire occurred on June 1,1925, and the conversation in Lingle’s office was had a few days after the fire.

These certificates were properly admitted in evidence and prima facie established the agency of Lingle to make contracts of insurance, issue policies, to receipt for premiums or extend credit therefor. (Sun Ins. Office of London v. Mitchell, 186 Ala. 420, 65 So. 143.) In opposition to this prima facie proof of agency, appellant offered to prove, by the witness Lingle, that on or about November 5, 1924, the head adjuster for the appellant visited Lingle and then instructed him not to write any further insurance for the company until further notice; and that a short time later appellant wrote a letter to Lingle that he was not to write any more insurance for the company until further notice, which letter was received by Lingle; and that a short time later Lingle received a telegram from the company to return all supplies and papers belonging to the company, which he had in his possession, and that such papers and supplies were returned to the company, and that Lingle had not Avritten any insurance for the appellant company after he received the verbal instructions from the adjuster. Appellant further offered to prove that the said head adjuster had authority to cancel the agency of said Lingle at said time and that Mr. Brown was not the agent of the company in January, 1925; and further that Lingle had received instructions from the company in August, 1924, to write no insurance on buildings outside of the city of East Saint Louis, not under fire protection.

The secret instructions of the principal to his agent are not binding on the public, or on one who has had dealings with the agent acting within the apparent scope of his employment or agency. (Wilson v. Commercial Union Assur. Co., 51 S. C. 540, 64 Am. St. Rep. 700; Merchants Ins. Co. v. Oberman, 99 Ill. App. 357.) It does not appear from the offer of appellant that public notice had been given that Lingle’s agency had ceased, or that the appellant had terminated such agency; nor does it appear that the commission of Lingle had been withdrawn; nor that public notice was given that Lingle was wdthout authority to insure property outside of the city of East Saint Louis, not under fire protection. (Springfield Fire & Marine Ins. Co. v. Davis, 18 Ky. L. Rep. 654, 37 S. W. 582.) It does not appear in the record that appellees had notice of such revocation, limitation or restriction of the authority of Lingle.

There being evidence tending to prove that Lingle approved of the transaction between appellees and Brown, the trial court did not err in overruling appellant’s motions, and this court cannot say, from a reading of the record, that the clear iveight of the evidence is against the verdict of the jury.

The verdict of the jury was in favor of the appellees to the amount of $3,000, a remittitur of $27, and judgment for $2,973, and which judgment is hereby affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Barnes

license: Public Domain

text:
    The People of the State of Illinois ex rel. Motor Car Securities Corporation, Appellee, v. Thomas O. Wallace, Clerk of the Circuit Court of Cook county, Illinois, Appellant.
    Gen. No. 32,117.

      Executions — issuance on transoi'ipt of judgment of municipal court. Under section 63 of the Municipal Court Act, Cahill’s St. ch. 37, If 476, the clerk of the circuit court of Cook county has authority to issue an execution on a transcript of a judgment of the municipal court filed in his office as prescribed in said section.
    Appeal by defendant from the Superior Court of Cook county; the Hon. Worth E. Caylor, Judge, presiding.
    Heard in the second division of this court for the first district at the October term, 1927.
    Affirmed.
    Opinion filed February 14, 1928.
    Robert E. Crowe, State’s Attorney, George A. Miller and Leroy Millner, Assistant State’s Attorneys, for appellant; George F. Barrett, Charles V. Barrett, Clifford R. Edmister and Edward L. Hoyer, of counsel.
    Mort D. and Frank Goldberg, for appellee; Mort D. Goldberg, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is a petition for a 'writ of mandamus to which defendant filed a demurrer. The demurrer was overruled and defendant stands by the same.

The sole question presented on the appeal from the order for the writ is whether under the provisions of section 63 of the Municipal Court Act, Cahill’s St. ch. 37, ¶ 456, on which the petition is based, the clerk of the circuit court of Cook county has authority to issue an execution on a transcript of a judgment of the municipal court, filed in his office as prescribed in said section.

The sufficiency, of the petition is not otherwise questioned.

The judgment was for $175 and the transcript thereof was duly certified and filed with said clerk, who refused petitioner’s demand for an execution directed to the sheriff of Cook county against the lands, etc., of the judgment debtor in Cook county.

Said section provides inter alia that a judgment in the municipal court for less than $200 shall be a lien upon real estate in the county outside of the city from the time of the filing of a transcript thereof in the office of the clerk of the circuit court, and that executions against the same shall be directed to the sheriff (unless disqualified). Its final paragraph reads:

“Executions against lands, tenements, goods and chattels outside of the city of Chicago, shall be directed to the sheriff * * *. Any execution, issued on any judgment of which a transcript has been filed in the office of the clerk of the Circuit Court of any county in this State, shall throughout the county in which said transcript is filed as aforesaid, be of the same force, have the same effect, be a lien to the same extent and be executed in the same manner as if said execution had issued on a judgment of the Circuit Court of Cook County.”

Because the act does not expressly direct the clerk of the circuit court to issue an execution upon such transcript, it is contended that the purpose of the section is merely to make judgments of the municipal court liens, and to announce that they shall be executed and enforced in the same manner as judgments of the circuit court. The statute, however, clearly provides that the lien shall be enforced by the levy of an execution, and that it shall be issued to the sheriff of the county where the property is situate. Somebody must issue it. "While under the general statute on judgments, decrees and executions,- a person obtaining a judgment may have an execution directed to the proper officer of any county in the State (Cahill’s St. ch. 77, ¶ 4), it does not expressly direct the clerk to issue it. Its issuance is manifestly one of the duties pertaining to his office, all of which he is required to perform. (Cahill’s St. ch. 25, ¶ 13.)

Said section 63, Cahill’s St. ch. 37, ¶ 456, clearly contemplates that the enforcement of a judgment of the municipal court against lands, etc., outside of its jurisdictional limits must be attended with the same formalities and done in the same manner as if the judgment were one of the circuit court. To that end it requires the transcript to be filed with the clerk of the circuit court, whose jurisdiction extends over such lands, etc., and that an execution shall issue thereon to the officer .of that court who executes its processes. Who shall issue it then if not the clerk of that court who exercises that ministerial function? There is no pretense that any other officer has authority to issue it. While the judgment is not one of that court, the purpose of the act is to give it the same effect as if it was, so far as having it enforced outside of the jurisdictional limits of the municipal court is concerned, and contemplates its enforcement through the usual formalities by the officers of the circuit court. If the execution cannot issue because of the absence from the statute of an express provision as to who shall issue it, then the statute becomes wholly ineffective to carry out its object. Surely it should not be defeated if there are implied means for its enforcement. The legislature did not intend an absurdity. Considering the purpose of the statute is to enable one obtaining a judgment in the municipal court to levy on property beyond its jurisdictional limits, and to that end the statute provides for the issuance of an execution thereon directed to the sheriff of the county wherein the property is situate on the filing of a duly certified transcript of the judgment with the clerk of the circuit court of that county, and that the execution is to be enforced in the same manner as if it were upon a judgment of that court, we think there is a clear implication of the power and duty of the clerk of said court to issue such execution on a proper demand therefor.

We do not think the authorities cited by appellant are apposite. The order for the writ is sustained.

Affirmed.

Gtridley and Scanlan, JJ., concur.


text:
    Rose L. Adelman and Benjamin Colitz, Executors and Trustees, et al., Appellees, v. Carson, Pirie, Scott & Company and John V. Farwell Company, Appellants.
    Gen. No. 32,483.
    1. Injunction — averments on information and belief as basis for injunction. Averments in a bill for an injunction which are made on information and belief and" not supported by the affidavits, and which are explicitly denied in the answers and the affidavits of the defendants, cannot properly furnish a basis for an injunction.
    2. Landlord and tenant — preliminary agreement as aid to construction of lease. Where a tentative or preliminary agreement for a lease contemplates a formal lease and other documents that when executed will supplant it, the court will look not to the displaced agreement to determine the intention of the parties and the construction of the lease, but to the final instrument itself.
    3. Landlord and tenant — provisions for termination of lease as not preventing creation of valid term of years. Where a term for a fixed period is created by a lease, a provision for its termination upon an event which may or may not happen before the expiration of the period specified, or a provision for its termination before the expiration of such period at the option of the lessor or lessee, will not prevent it from creating a valid term of years.
    4. Landlord and tenant — construction of term of lease. A term of 99 years as designated in the habendum clause of a lease is not made a term for 20 years by a further provision giving either party an option to terminate the lease at the end of 20 years; and it is immaterial that the lease provides that if the premises are destroyed by casualty within the first 18 years the lessee shall repair or erect a new building, that if the premises are partially destroyed after the first 18 years the lessee may elect to end the lease, that an option to purchase the premises within 18 years is not continued after such time, and that the lease does not contain provisions ordinarily contained in the longer term leases.
    5. Landlord and tenant — words to create a lease. No particular words are necessary to create a lease.
    6. Landlord and tenant — no standard form for 99-year lease. There is no universal standard form for a 99-year lease.
    7. Corporations — collateral attack on lease made by corporation not authorized to own land. A lease of land cannot be collaterally attacked on the ground that the corporate lessor has no power to own real estate.
    8. Corporations — lease extending beyond corporate life as ultra vires. A lease between corporate parties is not ultra vires because it creates a term that will outlast the life of the parties.
    9. Corporations — who may question absence of stockholders’ consent to execution of lease. The want of consent of stockholders to the execution of a lease can, generally speaking, only be urged by the stockholders themselves.
    10. Corporations — ratification by stockholders of lease. A lease of all the property of a corporation may be ratified by the stockholders.
    11. Corporations — silence as ratification by stockholders of lease. A lease of all the property of a corporation may be ratified by the silence of the stockholders.
    12. Corporations — ratification by stockholders of voidable lease. A lease that is voidable and not void, because executed without the consent of the stockholders, is capable of ratification by the act or silence of the stockholders.
    Interlocutory appeal by defendants from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.
    Heard in the second division of this court for the first district.
    Reversed.
    Opinion filed February 14, 1928.
    Tenney, Harding, Sherman & Rogers, for appellants ; Horace Kent Tenney, Charles F. Harding, Jr., and Henry F. Tenney, of counsel.
    Jacobson, Merrick & Latter, for appellees; Abraham Meyer and David L. Rosenthal, of counsel.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This is an appeal from an interlocutory injunction, which, speaking generally, restrains defendants from interfering with complainants’ possession of and asserted rights in a part of the premises in question, known as the Farwell Block, owned by defendant John V. Farwell Company (referred to hereinafter as the Farwell Company), under a lease from the Faiwell Company to complainants. Said lease is for a term of 10 years, expiring December 31, 1932, subject to termination before that time under paragraph 9 thereof, which reads as follows:

“Ninth. It is further covenanted and agreed that the party of the first part (John Y. Farwell Company) shall have the privilege of terminating this lease for said demised premises on. December 31, 1927, or on December 31st of any year thereafter during the term by giving to the party of the second part (Sam Adelman & Co. and Sam Adelman) two years’ prior notice in writing of its intention so to do, without any compensation to the party of the second part. The privilege of party of the first part to terminate this lease shall only be exercised in the event of a sale or ninety-nine year lease of said property.”

The Farwell Company having executed a purported 99-year lease on October 10, 1925, to Carson, Pirie, Scott & Company (referred to hereinafter as the Carson Company), served a two-year notice on complainants of its intention to terminate their lease on December 31, 1927, and the bill, answers and affidavits read on the hearing of the motion for a preliminary injunction, present as the controlling question whether such lease is a 99-year lease in fact. If it is, the injunction was improvidently granted; otherwise not.

The habendum clause of said lease designates the term as “from and including the date hereof to and including the 31st day of December, 2024.” The bill, however, charges in substance that other provisions therein evidence that it is not a 99-year lease but one for 20 years only, that it was intended as such, that as a 99-year lease it was ultra vires, and that to deprive complainants of enjoyment of their lease defendants conceived of an inequitable plan and ‘ ‘ entered into a secret arrangement and understanding, the exact terms of which are unknown to complainants.”

This latter charge, manifestly made on information and belief, is in no way supported by the affidavits, and as it is explicitly denied in both the answers and affidavits in behalf of defendants, it could not properly furnish a basis for the court’s action.

Eliminating from consideration, then, the element of fraud or want of good faith, the equities of the bill rest entirely upon the actual character of the lease. As evidencing its actual character complainants specially refer to two provisions therein, one for its cancellation, and one for procedure in the event of fire or other casualty. The provision for cancellation reads:

“Either party hereto may cancel this lease to take effect on December 31, 1945, or on December 31st of any year thereafter, either by serving notice of cancellation on the other party hereto, or by filing for record with the Recorder of Deeds of Cook County, Illinois, such notice, duly executed and acknowledged by the party canceling, provided such notice is served or filed for record on or before one (1) year before the date of such cancellation is to become effective.”

It is argued that because either party may under this provision terminate the lease at the end of 20 years or at the end of any year thereafter, it is one for only 20 years, and that other provisions, as well as absence of provisions, and a prior agreement between the parties support that conclusion.

In said prior agreement, dated September 22, 1925, the Farwell Company offered, among other things, to rent the Farwell building for a period of 20 years from January 1,1926, at a specified rental. The offer, if accepted; was “to be put in the usual form of a long term lease,” and gave an option to the Carson Company to buy said building and the land on which it is situated “at any time on or before nine years,” at a specified price, “and thereafter on or before the expiration of another nine years ” at an increased price. Its final paragraph read:

“This offer, when signed by you (Carson Company), is a tentative agreement between the parties, upon which the final papers shall be based, and it is agreed that * * * property leases and all other documents necessary to the full completion of the matter, shall be in readiness for delivery on or before October 10, 1925.”

It is manifest that this so-called “tentative” or preliminary agreement contemplated a formal lease and other documents that when executed would necessarily supplant it. It is obvious, too, that the parties could mutually agree to different terms on executing the final papers. We must, thereforé, the element of fraud being eliminated, look not to the displaced agreement to determine the intention of the parties and the construction of the lease, but to this final instrument itself. ' The lease constitutes a complete agreement in itself — so far as. disclosed by the record— and presents no ambiguity justifying resort for construction to extrinsic documents, facts or circumstances. Looking to it alone, then, to ascertain the intention of the parties, are any of its provisions absolutely inconsistent with or repugnant to the definite expression in the habendum, clause for a demise for 99 years ?

It will not be questioned that where a term for a fixed period is created by a lease a provision for its termination upon an event which may or may not happen before the expiration of the period specified, or a provision for its termination before the expiration of such period at the option of the lessor or lessee, will not prevent it from creating a valid term of years. (35 C. J. 972; 18 Am. & Eng. Encyc. 209; Goodright v. Richardson, 3 Burnford & East Term Rep. 462; Kenny v. Knight, 119 Fed. 475.) But it is urged that where, as here, the lease gives either party the right to terminate it at a certain period less than the full term of the demise it must be deemed a demise for only such period and is not binding upon either party beyond that time; that such a lease must be differentiated from one giving an option to terminate to one party only and remaining absolutely binding on the other if the option is not exercised. Cases of the latter character are Foreman v. Hilton Co., 280 Fed. 608, and Bartkowski v. Hoefeld, 226 Ill. App. 198. No case, however, has been cited on either side where the option was mutual. But discussing a like contention made in Kenny v. Knight, supra, the court said that even if it was of the opinion that the contract before it was terminable at the will of either party, or upon reasonable notice, “it would not follow that the agreements therein contained would not be obligatory upon the parties so long as they continued to act under such contract before revoking or terminating it.” It is seemingly irrelevant, therefore, in determining the character of the lease, that either party may terminate it, if, neither electing so to do, they may continue to act under its other provisions for its full term. Whether the option is availed of concerns only the parties to the agreement if competent to make it. Whether it will be exercised is as uncertain as the happening of any other future contingency or. condition subsequent. The test is not, in our opinion, whether the lease is absolutely binding on one party at the will of the other for the full term of 99 years, but whether in case neither party elects to terminate it they may not under its provisions and imposed obligations continue the relation of landlord and tenant for a term of 99 years. If so, the instrument is what it purports to be, a 99-year lease, and the event On which complainants’ lease may be terminated has arisen.

The other provision referred to is to the effect that if the premises are destroyed by fire or other casualty during the first 18 years of the lease the lessee shall repair the same or erect another building, and if after the first 18 years it be destroyed to a certain extent the lessor may elect to- declare the term ended by serving notice as therein specified. But there is nothing in this provision inconsistent with or repugnant to a term for a longer period than 20 years. It stands on the basis of any other condition subsequent.

Counsel point to other provisions giving the lessee options to purchase at respectively 9 and 18 years after the commencement of the term, and reserving the right of the lessor to sell and the lessee to buy the property within such 18 years "without any provision therefor after that time. Such provisions are not antagonistic to the lease until put in force. (Powell v. Dayton, S. & G. R. R. Co., 16 Ore. 33.) The argument is to the effect that these provisions being appropriate for a 20-year lease indicate that the instrument was drawn pursuant to the tentative agreement for that term and hence support the inference that the term of demise in the habendum clause was inserted merely to give a colorable right to terminate complainants’ lease. In short, the argument goes to the contention of bad faith. But it is manifest that no such inference is palpable from the context of the lease itself. Nor is it justified from the fact that defendants varied the terms of the preliminary agreement in drawing the final one, or from the fact that the lessee desired possession of the entire premises before the end of complainants’ term. These facts severally or together support no such inference and have no such probative force. They are not inconsist ent with entire good faith, and fraud or bad faith will not be presumed to support complainants’ theory.

Counsel also point to the absence of other provisions alleged to be ordinarily contained in longer term leases, such as for reappraisement, for the enhancement or diminution of rent, for the erection of a new building when the present building becomes obsolete, or for its maintenance or restoration, or for adjustment of its ownership at the end of the lease. But it cannot reasonably be asserted that it is not a 99-year lease because of the absence of such provisions or any of them. Whether or not the lease omits desirable provisions the parties to it were free to contract as they saw fit not in violation of law or against public policy. If it be in fact a 99-year lease it is not subject to attack by complainants. No particular words are necessary to create a lease (Miller v. Gordon, 296 Ill. 346), and there is no universal standard form for a 99-year lease. As it contains all the essentials of a lease and the parties may pursuant to its terms continue to act under its provisions for the full term demised, it cannot be said not to be such a lease because of provisions whereby it may be terminated before the end of the period or because of the absence of provisions that are ordinarily incorporated in such a lease. Passing upon the reservation of a right of revocation in a deed of trust wherein the grantee took the estate with the possibility of being divested by the happening of the uncertain event of its exercise, the court, In re Dolan’s Estate, 279 Pa. 582, said:

“The right to revoke, unexercised, is a dead thing. Its presence in a deed does not alter the character of the instrument or estate granted; to all intents and purposes, title and possession pass just as effectively as any deed or grant could make it, continuing in that state so long as the power of revocation lies dormant.”

Substituting “cancel” for “revoke,” we think this statement of the law applicable to the case at bar.

But it is alleged that the Farwell Company has ceased to do the business for which it was incorporated in 1890 for 99 years, and is, therefore, unable to own any real estate; and that if the lease is one for 99 years, it is illegal because it extends beyond the corporate life of either of the parties thereto. If there be any merit in the former allegation of alleged usurpation of power in respect of ownership and enjoyment of landed property the Farwell Company might be required to answer to the State, and to the State only, but the lease cannot be collaterally attacked on that ground by complainants. (Rector v. Hartford Deposit Co., 190 Ill. 380, 389; Illinois Life Ins. Co. v. Beifeld, 154 Ill. App. 582; Dearborn Truck Co. v. Staver Motor Car Co., 219 Ill. App. 295.)

With respect to the contention of ultra vires or the invalidity of the lease because it creates a term that would outlast the life of the corporate parties to it, the decisions are to the contrary. (Brown v. Schleier, 118 Fed. 981; State v. Laclede Gaslight Co., 102 Mo. 472.)

It is contended that the lease in question was not duly authorized by the board of directors or stockholders of the Farwell Company. There is no allegation in the bill upon which this contention may rest. The charge of the invalidity of the lease rests on the doctrine of ultra vires already considered. The question of authority to execute the lease was brought into the record only by an affidavit complainants read at the hearing, stating what the minutes of the board of directors of the Farwell Company disclosed and failed to disclose. In the absence of any averment in the bill presenting such an issue, the only pertinency of such minutes was their bearing on the intention of said directors and the stockholders respecting the transaction. But, as above stated, there is no necessity for resort to extrinsic facts or circumstances for the intent of the company is clearly ascertainable from the lease itself. It does appear, however, that after the lease was executed and delivered both the directors and stockholders by resolution approved, ratified and confirmed all acts and doing of the officers of the company “as appearing in the minute book of the company and in the corporate records.” While it is alleged that there was no express reference in the minutes to the execution of said lease, and, strictly speaking, it may be that an instrument of that kind is not a part of the “corporate records,” as that term is generally understood, yet the affidavit of the secretary of said company states that the lease was executed and delivered prior to the meetings of said board and said stockholders and was at the time of such meetings a part of the corporate records of the said company. For aught that appears to the contrary, it may have been so regarded and referred to as such in the resolutions.

However, it does not appear that either by statute, charter or by-law the consent of the stockholders was required; and, if it was, their want of consent could, generally speaking, only be urged by the stockholders themselves (Fletcher Cyclopedia Corporations, vol. 3, sec. 1454); and while as to a lease of all the property of a corporation there is some conflict of opinion upon the necessity of such consent, the lease may be after-wards ratified by them. (Id., vol. 2, sec. 1242.) And it may be ratified by silence. (Id., vol. 3, sec. 1454.) The lease here had been in force and acted upon by the parties thereto for about a year before the bill was filed, presumably with the knowledge of not only the lessor’s officers but its stockholders, especially in view of their ratification not only of a lease of the building but of the sale of the merchandise therein, resulting practically in closing the business the lessor had been theretofore carrying on therein.

However, while we do not think the bill presents the issue of the invalidity of the lease because not expressly authorized or ratified, yet if the resolutions referred to cannot be so construed, the instrument not being void but at best voidable only in case such consent was required, it is capable of ratification by the act or silence of the beneficiary or beneficiaries, namely, the stockholders. (Id., vol. 3, sec. 1454, p. 2449; Westerlund v. Black Bear Min. Co., 203 Fed. 599, 611.) So long, therefore, as the validity of the lease may be questioned only by the State for ultra vires, and on other grounds by the parties to it or their beneficiaries, and it has not been questioned by the former and has apparently been ratified by the latter, it is not open to collateral attack by complainants.

The injunctional order, therefore, will be reversed.

Reversed.

G-ridley and Scanlan, JJ., concur.


author: Mr. Justice Gridley,

text:
    James E. Armstrong et al., Appellants, v. City of Chicago et al., Appellees.
    Gen. No. 32,497.
    1. Schools and education — authority to pass rules transferring aged teachers from active to emeritus service. Rules of the board of education of the city of Chicago that all members of the teaching force over 70 years of age shall be transferred from classroom or supervisory service to emeritus service at reduced salaries are illegal and void in that the board was without legislative authority to pass them.
    2. Schools and education — rules transferring aged teachers from active to emeritus service operating as wrongful removal. Rules of the board of education of the city of Chicago that all members of the teaching force over 70 years of age shall be transferred from classroom or supervisory service to emeritus service at reduced salaries operate as removals in violation of Cahill’s St. ch. 122, ¶¶ 162, 187, although paragraph 154 provides for transfers, since such provision refers to transfers of individuals and not to a class of teachers, and notwithstanding that paragraph 162 provides that permanency in positions is subject to the rules of the board concerning conduct and efficiency, since the conduct and efficiency refer only to that of an individual teacher.

      Appeal by plaintiffs from the Circuit Court of Cook county; the Hon. Hugo M. Fkiend, Judge, presiding.
    Heard in the second division of this court for the first district at the December term, 1927.
    Reversed and remanded with directions.
    Opinion filed February 14, 1928.
    Rehearing denied February 28, 1928,
    Dunne & Corboy, I. T. Greenacre, Allan J. Carter and Willis E. Thorne, for appellants. ’
    Frank S. Righeimer, for appellees; Ralph W. Condee, of counsel.
   Mr. Justice Gridley,

delivered the opinion of the court.

This is an appeal from a decree of the circuit court of Cook county, entered October 8, 1926, wherein the court after a hearing, dismissed complainants’ original bill (filed January 27, 1926) and supplemental bill (filed January 30, 1926) for want of equity. Complainants sought to enjoin the enforcement of certain rules, adopted by the board of education on December 9, 1925, and/known as the “Emeritus” rules, wherein it was provided inter alia that “hereafter no member of the teaching force shall be continued in class room or supervisory duties who shall be more than seventy years of age.” At the time of the filing of the original bill two of the complainants were 7.0 years of age and one was 73; two had served as principals or teachers in schools of the city for more than 20 years, and one as a teacher for nearly that length of time; all were performing their respective duties. The appeal was taken to the Supreme Court, but. on December 21, 1927, the cause was transferred to this Appellate Court, — the Supreme Court holding that it had no jurisdiction of the appeal. (Armstrong v. City of Chicago, 328 Ill. 147.)

The bill was filed also in behalf of all other principals and teachers similarly situated who desired to join as complainants. It alleges that each complainant is a resident, voter and taxpayer in Chicago; that Armstrong has been and is principal of the Englewood High School, and Dodge of the Hibbard High School; that Miss Hecox has been and is a teacher in the Cameron School; that during their long period of service in the schools each “has complied with the rules of the board of education concerning conduct and efficiency”; that “there is no cause within the meaning of the statutes for the removal of any of the complainants from their present positions”; that no charges have ever been preferred against any of them, nor have any of them ever been suspended from their positions;' that under the statutes their status as principals or teachers “should be determined by merit only,” and each of their appointments “has become permanent, subject only to the rules of the board concerning conduct and efficiency, and subject to removal for cause in the manner provided by section 161 of the Schools Act”; and that on December 9,1925, the board of education adopted the following resolution:

“Be it resolved that the rules of the Board of Education of the City of Chicago, be, and the same are, hereby amended by adding a new article to be known as Article 7A, Chapter IV, and to read as follows:
‘■Section 1. There is hereby created a branch of the educational service of the Board of Education which shall be known as ‘Emeritus Service,’ to which all members of the teaching force, including teachers, principals, supervisors, directors, district superintendents, assistant superintendents, superintendents other than the Superintendent of Schools, and examiners, except as hereinafter provided, shall be assigned when they shall have respectively reached the age of seventy years. Provided, however, that such assignments shall be made only in cases where said persons have been in active and continuous service in the public schools of the City of Chicago for at least twenty years prior to such retirement. Hereafter no member of the teaching force shall be continued in classroom or supervisory duties who shall be more than seventy years of age.
“Section 2. It shall be the duty of the Superintendent of Schools on the first day of January and the first day of July in each year, or as soon thereafter as possible, to report to the Board of Education in writing the names' of all persons of the teaching force who have or will have attained the age of seventy years on the first day of February or August next ensuing, and he shall recommend (unless he is of the opinion that charges shall be preferred against such persons in accordance with the statute and rules in such cases made and provided) that such persons shall be retired from regular classroom or supervisory service and shall be assigned to the class of service known as ‘Emeritus Service,’ and be subject to the call of the Superintendent of Schools or the Board of Education for consultation, advice and such other service as may from time to time be required.
“Section 3. Each person so transferred to ‘Emeritus Service’ shall be paid annually during the continuance of such service a sum equal to one-half of the average annual salary received by such person during the ten years preceding his transfer to ‘Emeritus Service,’ but no person so transferred shall receive annually less than fifteen hundred dollars nor more than twenty-five hundred dollars.”

■The bill further alleges that the board has announced that in the enforcement of said rules it will pay out of the school funds, to those members of its teaching force to be placed in such service, $65,000 for the current year and larger sums thereafter; that on January 13, 1926, the board concurred in a report of the superintendent of schools (No. 13535-B, dated December 31, 1925, copy set forth) wherein there were named 74 principals or teachers in the schools, including complainants, who are more than 70 years of age, or who will attain that age on February 1, and who will be placed in such service; that the board also has announced that at the meeting, to be held on January 27, 1926, it will select persons to fill the positions of complainants and of all others named in said report; and that said rules, so adopted and so to be enforced, “are contrary to the limitations contained in said Schools Act,” and are “beyond the power and authority of said Board of Education, as limited by section 131 of said Act and other sections, as amended,” and “are void and of no effect.”

The bill further alleges that on January 20, 1926, complainants, and the other persons affected, were notified that on January 31 they would be retired from their classroom and supervisory service and “assigned to the ‘Emeritus Service,’ subject to the call of the Superintendent of Schools, or the Board, for consultation or advice”; that this will result in their being excluded from their present respective positions without any charges having been preferred against them and without any trials had thereunder; that the proposed action will cause “unlawful and unconstitutional diversions of moneys raised by taxes,” will “deprive complainants of property without due process of law,” and will be “an abuse of discretion vested by law in the Board of Education”; and that the rules “are arbitrary, unreasonable and void and in violation of the State and Federal Constitutions,” that their enforcement will result in a multiplicity of suits, and that complainants have no adequate remedy at law for the recovery of damages thereby' to be suffered by them.

The bill prayed fór a preliminary as well as a permanent injunction, restraining defendants from enforcing or attempting to enforce the .rules as against complainants, from preventing them from performing their classroom and supervisory duties and from transferring them to said emeritus service.

In complainants’ supplement bill, filed three days later, the events resulting in their transfer to said service, and in the placing of other persons in their respective former positions, are set forth in considerable detail. The prayer of the supplemental bill is, that the court forthwith issue an injunction order, “directing said Board of Education and Superintendent of Schools to restore complainants to their former status, positions and conditions, and be enjoined from thereafter dismissing, removing or retiring the complainants, or any of them, from their respective status, positions and conditions; and that defendants be commanded to order and cause the several persons, purported to be assigned to take the respective positions of complainants, to desist and refrain from interfering, or attempting to interfere with complainants respectively in their positions and the performance of their duties, as held by them at the time of the filing of their original bill,” etc.

On February 4, 1926, complainants’ motion for a preliminary injunction was denied. On March 27, 1926, the board of education, its officers and members and the superintendent of schools, filed a joint and several answer to both bills, and in September, 1926, there was a hearing before the chancellor, at which considerable oral and documentary evidence was introduced by both parties. Some evidence offered by complainants was excluded.

On the hearing, the said rules, adopted December 9, 1925, vere introduced by complainants, and it appeared that ' during March, 1926, these rules were twice amended by the board, upon recommendation of the superintendent of schools. In the first amendment the provision in section 1, as to the length of service in the schools, was changed from “twenty”'to “fifteen” years, and the words “prior to such retirement” were eliminated, and, in section 2, the words “shall be retired” were changed to read “shall be transferred.’’ In the second amendment the provision in section 1, as to the length of service in the schools was changed from “fifteen” to “ten” years. It further appeared that shortly prior to January 30, 1926, the three complainants, and others similarly situated, in accordance with said rules and the action of the board, ceased acting as principals or teachers and their respective places, in the performance of classroom or supervisory duties, were taken by others. Both Armstrong and Miss Hecox testified to the effect that since they had been placed in the emeritus service they had not been requested to do much of any work in connection with the schools; that each had received a circular letter from the superintendent of schools, dated January 29, 1926 (introduced in evidence), asking them to select, from a list of about 80 topics, 4 or 5 topics as to which they might assist the board by work or advice in connection therewith; that each had replied to the circular, mentioning certain topics, but that they had not yet been requested to do any work on the topics chosen. Miss Hecox, who latterly had been a teacher in the “sub-normal division” of the schools, testified that on one occasion she was requested to make out a list of books, suitable for the new curriculum committee to read or refer to in making out a course of studies for said subnormal division, and that she complied with the request and made out such a list, taking about fifteen minutes in writing it. The evidence, however, did not disclose that complainants, or any other former principals or teachers assigned to said service, had been required to do any work, or give any advice. Armstrong further testified that he had been receiving a salary of $6,450 per year as a principal of a school, not including about $700 received for services in a summer school, but that since being assigned to said service, he had been receiving a salary, under protest, at the rate of $2,500 per year.

, On the hearing, also, there was introduced by complainants a copy, certified by the Secretary of State of Illinois, of the so-called “Miller Act.” It appears that although this act was passed by both houses of the legislature before adjournment in June, 1925, it was not presented to or signed by the governor, and did not become a law, until May 19, 1926. See Cahill’s St. 1927, ch. 122, ¶269(1) et seq., p. 2296.) This act was entitled “An Act to provide for the compulsory * * * retirement of teachers, principals, district superintendents and assistant superintendents, and the payment of retirement annuities. ’ ’ And it was further disclosed on the hearing that, while this act was pending before the legislature, the board of education, through its agents, etc., was very active in urging its passage; and that the board, believing that the proposed act had failed to become a law in 1925, passed the rules in question in December, 1925, and amended them, as shown, in March, 1926. In section 1 of said Miller Act it is provided that, “in every city in this State having a population exceeding 250,000 inhabitants, the board of education of such city shall retire from active service on February 1 and August 1 of each year all teachers, principals, * * * in the public schools of such city” in accordance with a graduated schedule to become operative in the future, viz, in the year 1926, all teachers, principals, etc., 75 or more years of age; in the year 1927, all such 74 or more years of age; in the year 1928, all such 73 or more years of age; in the year 1929, all such 72 or more years of age; and in the year 1930, all such 70 or more years of age. Inasmuch as about January 30, 1926 (when said emeritus rules' became effective and first were acted upon), two of the complainants, and some of the other teachers, were only 70 years of age, it is apparent that, had said act then been in force, complainants and such other teachers could not lawfully under said act be retired, compulsorily, from their positions until during the year 1929, when they will have reached the age of 73 years. Section 2 of said Miller Act, Cahill’s St. eh. 122, ¶269(2), is as follows:

“Each person so retired from active service who served in the public schools of such city for twenty or more years prior to such retirement, shall be paid tile sum of fifteen hundred dollars ($1,500) annually and for life from the date of such retirement from the money derived from the general tax levy for educational purposes: Provided, that any teacher, principal, * * * so retired and receiving such annuity shall be subject to the call of the superintendent of schools in such city for consultation and advisory service: And, provided further, that nothing in this Act contained shall in any way impair or prejudice any rights of a teacher, principal * * *, so retired, to annuity under other statutory provisions concerning any teachers’ pension fund, or teachers’ pension and retirement fund, established in accordance with the provisions of any statute of this State; and shall not repeal or modify any other such Statutory provisions.”

An examination of the Session Laws of 1927 (Laws 1927, p. 792; see also Cahill’s St. 1927, ch. 122, ¶ 269(1) et seq., p. 2296) discloses that our legislature at that session treated said Miller Act as being one which became in force on May 19, 1926 (about four months before the hearing in the present case) and passed an act amendatory thereof, approved June 24, 1927, in which the title of said act was amended, and a new section, No. 3, was added thereto, providing as well for the voluntary retirement of' teachers, principals, etc., “who are 65 or more years of age and who have not reached the age of compulsory retirement as provided in sections-one and two” of' the act, and the payment to such teachers, etc., in graduated amounts, of “annuities for life from the monies1 derived from the general tax levy for educational'purposes. ’ ’

Some of the pertinent sections, or parts thereof, of the Schools Act of 1909, as amended, and particularly some of the 1917 amendments to certain sections, known as the “Otis” amendments, are set forth below. In 1917, sections 128 to 139, inclusive, and section 161, of said Act of 1909, Cahill’s St. ch. 122, ¶¶152-163, 187, applying to boards of education in cities exceeding 100,000 inhabitants, were amended,— these amended sections becoming in force on April 20, 1917. (Laws 1917, p. 724.) On April 19, 1917, our Supreme Court decided the ease of People ex rel. Fursman v. City of Chicago, 278 Ill. 318, on the basis of said act of 1909, as in force before said “Otis” amendments became effective; and in the opinion it is said (p. 325):

“By the statute the board of education in cities having a population of 100,000 or more is given complete control of the schools of the city. Among its powers is that of employing teachers and fixing the amount of their compensation. * * * The board has no power to make contracts for the employment of teachers to extend beyond the ensuing school year. * * * A new contract must be made each year with such teachers as it desires to retain in its employ. No person has a right to demand that he or she shall be employed as a teacher. The board has the absolute right to decline to employ or to re-employ any applicant for any reason whatever or for no reason at all. * * - * It is no infringement upon the constitutional rights of anyone for the board to decline to employ him as a teacher in the schools, * *

It is our opinion that, in passing said “Otis” amendments, the intention of the legislature was to secure for teachers and principals in schools in cities having a population of 100,000 or more, including, of course, Chicago, a permanency in the tenure of their positions, and that they be not required to make yearly contracts with boards of education in such cities. In section 130, as amended, it is provided in part (Cahill’s St. 1927, ch. 122, ¶154, p. 2279):

“Appointments, promotions and transfers of teachers, principals, assistant and district superintendents, and all other employees in the teaching force, shall be made * * * by the board of education, only upon the recommendation of the superintendent of schools, unless it be by a two-thirds vote of all the members, of the board. ’ ’

In section 131, Cahill’s St. ch. 122, ¶ 154, as amended, it is provided in part:

“The board of education shall, subject to the limitations contained in this Act, establish by-laws, rules and regulations, which shall have the force of ordinances, for the proper maintenance of a uniform system of discipline for both employees and pupils, and for the entire management of the schools, * *

In section 137, as amended, it is provided (Cahill’s St. 1927, ch. 122, ¶161, p. 2281):

“The board of education shall, subject to the limitations contained in this Act, have the power to prescribe the courses and methods of study in the various schools and to employ teachers and' other educational employees and fix their compensation.”

In section 138, Cahill’s St. ch. 122, ¶162,.as amended, it is provided in part:

“* * * Appointments and promotions of teachers, principals and other educational employees shall be made for merit only, and, after satisfactory service for a probationary period of three years, * * * ap_ pointments of teachers and principals shall become permanent, subject to the rules of the board concerning conduct and efficiency, and subject to removal for cause in the manner provided bv section 161 of this Act: * *

In section 139, Cahill’s St. ch. 122, ¶163, as amended, it is provided:

“The specifications of the powers herein granted are not to be construed as exclusive, but the board of education shall exercise all the powers that may be requisite or proper for the maintenance and the fullest development of an efficient public school system, not inconsistent with these (those) general provisions of the school law of the State which apply to all school districts.”

In section 161, as amended in 1917, and as further amended in its last clause in 1923 (Laws 1923, p. 620; see Cahill’s St. 1927, ch. 122, ¶187, p. 2286), it is provided:

“No teacher or principal who has been or shall be appointed by said board of education shall (after serving the probationary period of three years specified in section 138 of this Act) be removed except for cause, and then only by a vote of not less than a majority of all members of the board, upon written charges presented by the superintendent of schools to be heard by the board, or a duly authorized committee of the same, after thirty days’ notice with copy of the charges, is served'upon the person against whom they are preferred, who shall have the privilege of being present, together with counsel, offering evidence and making defense thereto. At the request of any party such hearing shall be public. The action and decision of the board in the matter shall be final. Pending the hearing of such charges, the person charged may be suspended as by the rules of the board may be prescribed: Provided, however, that in the event of acquittal, such person shall not suffer any loss of salary by reason of this suspension.
“If at any time, prior to the completion of 25 years of service, within the meaning of this Act, any member of the teaching force who is willing to continue in the service of said board of education is removed from said service as provided in this section; or if at any time, prior to the completion of 25 years of service, within the meaning of this Act, any member of the teaching force retires voluntarily from the said service, then in either such case such member shall, upon application to said board of trustees, be paid back all the money he or she may have contributed to said fund. ” '

Said section 161, as so amended, appears among the sections of the “Schools Act” of 1909, numbered 152 to 165, inclusive, headed “Teachers’ Pension Fund.” (See Cahill’s St. 1927, ch. 122, ¶¶ 176-191, p. 2282 et seq.)

The main contentions of complainants’ counsel, urged for the reversal of the decree dismissing complainants’ bills for want of equity, are, -in substance, (1) that said emeritus rules are illegal and void, in that the board of education was without legislative authority to pass them; and (2) that the compulsory retirement thereunder of complainants from their positions as principals or teachers in the schools was in effect a removal, in violation of the provisions of sections 138 and 161 of the Schools Act, Cahill’s St. ch. 122, ¶¶ 162, 187, as amended by the “Otis” amendments. After examining the statutes and considering the evidence introduced on the hearing, we are of the opinion that these contentions have substantial merit.

Under said section 138, as amended, complainants’ positions as principals or teachers in the schools had become permanent, subject (1) “to the rules of the board concerning conduct and efficiency,’ and (2) “to removal for cause in the manner provided by section 161 of this Act. ’ ’ On the hearing, defendants ’ counsel admitted that, prior to the time of complainants’ assignment to the emeritus service, no attempt had been made to remove complainants from their respective former positions under amended section 161, that no written charges had been preferred against them and that no hearing on any charges had been had. Counsel stated that the only fact, militating against their retention of said positions, was that they were 70 or more years of age. Defendants’ counsel further admitted that, if complainants’ assignment to the emeritus service be considered as a removal (as distinguished from a transfer), the board' of education did not have sufficient statutory authority to so assign complainants ; but they contended, and contend here, that complainants only were transferred to “another class of service in the educational department,” in which the duties of giving consultation, advice, etc., had been prescribed by the rules. Counsel further contended, and contend here, that authority for making such a transfer of teachers or principals as a class, is found in amended section 130 of the Schools. Act, Cahill’s St. ch. 122, ¶ 154, wherein it is provided that ‘ appointments, promotions and transfers of teachers, principals, etc., shall be made,” etc. We cannot agree with either of these contentions. We think that complainants in effect were removed from their positions as principals or teachers, in violation of the provisions of said amended section 161, and that the words “appointments, promotions and transfers,” as used in section 130, haye reference to individual appointments, promotions and transfers, rather than to a class of teachers or principals, etc. The evidence introduced on the hearing discloses that the services or duties, which complainants (under the emeritus rules and after their transfer to such service) were expected to perform and actually were called upon to perform, were unsubstantial; and also tends to show that the real intent of the board, in passing and acting upon said rules, was to retire complainants, and other principals and teachers who had reached 70 years of age, virtually upon a pension, and that the consultation and advisory service, as mentioned in the rules, was in the nature of a pretense or disguise, giving color to the claim that complainants still were in the educational service, whereas in fact they really had been retired or removed therefrom. ;

Defendant’s counsel, in. defending the board’s actions complained of, direct attention to the fact that the permanency of complainants’ positions as principals or teachers, as provided in said section 138, was “subject to the rules of the board concerning conduct and efficiency, ” and also that amended section 139 provides that “the board of education shall exercise all the powers that may be requisite or proper for the maintenance and fullest development of an efficient public school system.” Counsel contended in substance before the chancellor, and contend here, that, because of these provisions and without regard to those contained in said amended section 161, the board of education had statutory authority to pass the rules in question, and to retire thereunder complainants and the other principals and teachers as a group or class after their reaching the age of 70 years, upon the presumption that all in such group or class, solely because of age, had become inefficient to perform classroom or supervisory duties, although none of the individuals of the group or class had been shown to be inefficient to perform such duties. We cannot agree with the contention. We think that the words “concerning conduct and efficiency,” as used in said amended section 138, clearly refer to the conduct and efficiency of an individual principal or teacher, etc. One of the definitions of the word “conduct,” as found in the Century Dictionary, is “personal behavior or practice,” and one of the definitions of “efficiency” is “the state of possessing or having acquired adequate knowledge or skill in any art, profession, or duty.” Considering together the provisions of amended sections 138, 139 and 161, Cahill’s St. ch. 122, ¶ ¶ 162, 163, 187, we think the board of education could pass reasonable rules as to the personal conduct and efficiency of principals, teachers, etc.; that the permanency of the tenure of such employees would be subject to such rules; and that, if it be proven that any one of such employees, after charges preferred and a hearing had, had violated said rules or had ceased to measure up to them, such employee as an individual might be retired or removed ; but we do not think it was the legislative intent that the board might retire, and in effect remove, all the principals or teachers, or other employees, of a class, solely upon the ground that each individual in that class, because of reaching a certain age, should be presumed to be inefficient, without charges being preferred as to the inefficiency of each individual, and without an opportunity being given him to defend at a hearing, and without any proof of his actual inefficiency.

Complanants ’ counsel, as further grounds for a reversal of the decree appealed from, also contend that the emeritus rules are invalid, (a) because they provide for the disbursement of public money without substantial services being rendered therefor, and (b) because they in effect attempt to establish a pension system in conflict with the teachers ’ pension provisions as contained in the Schools Act. In view of our above holdings we do not deem it necessary to discuss or decide these questions.

In conclusion, we are of the opinion that the circuit court erred in entering the decree dismissing complainants ’ bills for want of equity. Accordingly, such decree is reversed and the cause is remanded to the circuit court, with directions that it enter a decree directing the board of education to restore complainants to their respective positions, as principals and teachers in the Chicago public schools, as of the date of their said retirement or removal therefrom by said board about January 30, 1926, but that their tenure in said positions be subject to the provisions of said “Miller Act,” as originally in force on May 19, 1926, and as amended on June 24, 1927.

Reversed and remanded with directions.

Barhes, P. J., and Soanlah, J., concur.


author: Mr. Justice Scanlan

text:
    John Rock, Appellee, v. Minneapolis, St. Paul & Sault Ste. Marie Railway Company, Appellant.
    Gen. No. 31,914.
    1. Pleading — waiver of misnomer of plaintiff by failure to plead in abatement. A misnomer of the plaintiff in an action can only be pleaded in abatement and is no ground for setting aside the proceeding.
    2. Pleading — failure to challenge misnomer of plaintiff as waiver. A defendant who does not challenge by plea in abatement the misnomer of the plaintiff cannot complain of the judgment for plaintiff because of the misnomer.
    3. Pleading — plea not amounting to one in abatement as insufficient challenge to misnomer of plaintiff. A special plea by a. master, in an action for damages by a. servant, that the plaintiff (not naming him) ought not to maintain his action, because the plaintiff was not employed by the defendant at the time of the injury, does not amount to a plea in abatement and does not save the point of the misnomer of the plaintiff.
    4. Master and servant — one obtaining employment by fraud as employee within Federal Employers’ Liability Act. One who obtains employment from a railroad company by giving a wrong name in an application not in his handwriting, and by sending an impostor to take required physical examination, a prior application having been rejected because of physical disability, is not by such fraud deprived of his right to claim the benefits accruing to "employees” under the Federal Employers’ Liability Act, Cahill’s St. eh. 114, 1321 et seq., when injured in the employment without his physical condition contributing thereto.
    5. Master and servant — burden of proving contributory negligence under Federal Employers’ Liability Aet. The burden of proving the contributory negligence of an employee under the Federal Employers’ Liability Aet, Cahill’s St. ch. 114, ¶ 321 et seq., is on the defendant.
    6. Master and servant — effect of contributory negligence in action under Federal Employers’ Liability Act. The mere fact that a plaintiff, in an action under the Federal Employers’ Liability Act, Cahill’s St. ch. 114, ¶ 321 et seq., was guilty of contributory negligence will not bar a recovery but will mitigate the damages.
    7. Master and servant — assumption of risle in crossing in front of moving car as question for jury. Whether a railroad employee assumed the risk in crossing a track at night in front of an oncoming caboose, which was giving no signal, warning or light, was a question for the jury, the evidence being conflicting as to the existence of custom to have a man on the ear with a light.

      Appeal by defendant from the Circuit Court of Cook county; the Hon. Walter Brewer, Judge, presiding.
    Heard in the second division of this court for the first district at the March term, 1927,
    Affirmed.
    Opinion filed February 14, 1928.
    John L. McInerney and Edward H. Murnane, for appellant.
    H. H. Patterson, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Cook county for $15,000 in an action on the case, brought by the plaintiff, John Bock, against the defendant, Minneapolis, St. Paul & Sault Ste. Marie Railway Company, a corporation, for damages for injuries sustained by him in an accident while working as a switchman for the defendant. The case was tried before the court with a jury and a verdict was returned against the defendant for $15,000. The declaration alleges that the plaintiff was an employee under the provisions of the Federal Employers’ Liability Act, Cahill’s St. ch. 114, ¶¶ 321-329, and the defendant admits that he was.

The suit is brought in the name of John Bock, but the real name of the plaintiff is Joe Bock, and the defendant contends that “the suit was improperly brought in the name of a person who had no connection whatsoever with the accident; * * * that the judgment herein entered in favor of John Bock is wholly unwarranted.” It appears that the plaintiff made two applications for work with the defendant company. In the first he gave his real name and in the second he gave the name of John Bock. The night yardmaster of the defendant testified that on the occasion of the second application he gave the plaintiff a letter to the superintendent in which the plaintiff was named “John Bock” or “J. J. Bock”; that everybody called him Joe; that he is known there to this day as Joe Rock; that he put the plaintiff to work as John Rock, but that he knew he had been called Joe right along. The testimony of the plaintiff is to the effect that when he made the second application the yardmaster knew that he was the same person who had been rejected under the first application. It is clear from the record that the plaintiff in the instant case is the person who sustained the injuries for which the suit was brought. The defendant did not file or offer to file a plea in abatement, and a comisionner of the plaintiff can only be pleaded in abatement and is no ground for setting aside the proceedings.” (Springfield Consol. Ry. Co. v. Hoeffner, 175 Ill. 634, 644. See also Salisbury v. Gillett, 2 Scam. 290; Moss v. Flint, 13 Ill. 570.) Had the defendant in the present case seen fit to file a plea in abatement, the plaintiff might have amended the pleadings so as to make them show his real first name, or he might have filed a replication to the plea that he was as well known by the name of John Rock as by the name of Joe Rock. The defendant cites in support of its contention Pinckard v. Milmine, 76 Ill. 453, and Schmidt v. Thomas, 33 Ill. App. 109. Neither of these cases supports the contention of the defendant. In the first the defendant filed a plea in abatement averring that “ ‘said Edwin C. Bodman,’ one of the plaintiffs, was named Edward O. Bodman, and not Edwin C. Bodman,” and the plea was in all respects formal. The plaintiffs filed a replication to the plea that neither traversed the allegation of misnomer nor replied that the plaintiff was known as well by one name as the other. The defendants filed a general demurrer to the replication which the trial court overruled. The Supreme Court merely held that as the replication did not tender a proper and triable issue, the demurrer should have been sustained, but in the present case the defendant did not see fit to properly challenge the misnomer of the plaintiff, and they will not be how heard to complain of the same. Even a defendant, sued under a wrong name, must take advantage of the misnomer by plea in abatement, and if he does not he will be concluded by the judgment or decree rendered, the same as if sued in his true name. (Pennsylvania Co. v. Sloan, 125 Ill. 72; Proctor v. Wells Bros. Co. of New York, 262 Ill. 77.) In Schmidt v. Thomas, supra, it appears that the summons named Mathias Schmidt and Mrs. Schmidt as defendants, and the return of the sheriff showed the summons was served on the “defendants Mathias Schmidt and Mrs. Schmidt.” A declaration stating a joint cause of action was filed against “Mathias Schmidt and his wife, Mrs. Harriet C. Schmidt, whose other name is unknown to the plaintiff.” A judgment by default was rendered against “the said defendants Mathias Schmidt and Mrs. Schmidt. ’ ’ It was held that the law does not recognize the abbreviation “Mrs.” as the name of an individual and that therefore the judgment by default was erroneous. The court states, however, that if it had been a judgment after a contest, and if it appeared that justice had been done, the error might have been disregarded. This case, on the point in question, has never been cited but once ( Dale v. Keefe, 178 Ill. App. 262) and there the court refused to follow the ruling in Schmidt v. Thomas, supra. The latter case, on the facts, has no application to the instant contention and it is apparent from the opinion that the court used an old common-law rule as a ground for setting aside a default judgment. The defendant argues that the special plea filed by it, alleging “that the plaintiff (not naming him) ought not to have or maintain his aforesaid action against this defendant, because it says that at the time of the committing of the grievances set forth in the declaration and each count thereof, or at any other time, the plaintiff was not employed by the defendant,” saves the point. That plea is neither in form nor substance a plea in abatement, and it did not serve to bring any new issue into the case, as under the plaintiff’s declaration he was bound to show that he was an employee of the defendant company. The proof is clear that he was. The contention of the defendant was not only not raised by a plea in abatement, but, although the defendant has in the assignment of errors alleged thirty-four grounds for reversal of the judgment, in none of these is any reference made to it. We find no merit in it.

The proof shows that the plaintiff, under his real name, applied to the defendant for work as a switch-man October 1, 1923. His application was rejected because he had been operated on for a rupture, appendicitis and abscesses of the stomach. Then, under the name of John Eock — that being the name of a brother —he made a second application October 18,1923. This application was not in the handwriting of the plaintiff and when the time came for him to be physically examined he did not take the examination himself but sent a man named Lenhart, who pretended to be the plaintiff and underwent the physical examination. Thereafter, and until the accident, the plaintiff was employed by the defendant company — a period of about 14 months. The defendant contends that “the fraud perpetrated upon the defendant by the plaintiff in his attempt to secure employment deprived him of the right to claim the benefits accruing to ‘employees’ under the provisions of the Federal Employers’ Liability Act. ” The defendant concedes, in the oral argument, that the physical condition of the plaintiff at the time of the accident did not contribute in any way to his injury.

The only decision of an Appellate Court that the defendant cites that supports its contention is Norfolk & W. R. Co. v. Bondurant’s Adm’r, 107 Va. 515. There the court held that a rule of a railroad company which forbids the employment of infants in its train service is a reasonable one, and that an infant who, with knowledge of such rule, obtains service with the company by falsely representing himself to be of age, and is injured in the course of such service by reason of the negligence of the company’s servants, cannot recover damages of the company for such injury, although his infancy in no way contributed to his injury; that his position is that of a trespasser, or at most a bare licensee, to whom the company stands in no contractual relation and owes no other duty than not to injure him recklessly, wantonly or wilfully. This ruling is based upon the decision in Fitzmaurice v. New York, N. H. & H. R. Co., 192 Mass. 159. After a careful consideration of this,last decision, we have reached the conclusion that it is not an authority for the ruling in the Virginia case. In the well-considered case of Lupher v. Atchison, T. & S. F. Ry. Co., 81 Kan. 585, the distinction between the two cases is so well pointed out that we will content ourselves by quoting therefrom: “That case (Norfolk & W. R. Co. v. Bondurant’s Adm’r, supra) in turn is founded expressly upon Fitzmaurice v. New York, N. H. & H. R. Co., 192 Mass. 159, and the citations in a note thereto in 6 L. R. A. (N. S.) 1146. The substance of the Massachusetts case is that one who uses a railroad ticket obtained at a reduced rate by fraudulent representations is not a passenger in the sense of being entitled to protection as such, and stands in no better position than a mere trespasser. This is the general doctrine, to which there seems to be no dissent. (6 Cyc. 538.) The Virginia court took the view that by parity of reasoning one who obtains employment from a railway company by a false statement as to his age is prevented by his fraudulent act from becoming an employee. We think the two situations are obviously dissimilar. The analogy is not close enough to warrant the application of the same rule. Among other differences may be noted this: In the one instance a person desiring to be transported from one point to another fraudulently procures the railway company to render him that service, a service which is wholly for his benefit, and in which the company has no interest whatever; he obtains by false pretenses something of value to himself for which he renders no equivalent. In the other the seeker of employment does, it is true, procure his contract by false representations, but having obtained it he begins the performance of service for the benefit of the company and renders it an equivalent for all that he receives from it. True, the company could at its option upon discovery of the deceit discharge him at any moment (26 Cyc. 989), but even then he would be entitled to compensation for the time he had served, not necessarily at the agreed rate, but according to the reasonable value of his services. (Anstee v. Ober, 26 Mo. App. 665.) The relation of master and servant exists in virtue of the one party performing valuable services which are accepted and paid for by the other.” The only other case cited by the defendant, where the facts are analogous to those of the case at bar, is Stafford v. Baltimore & O. R. Co., 262 Fed. 807. This decision was by a nisi prius court and it was rendered on a motion by the plaintiff to strike a special plea of the defendant alleging that the plaintiff, being over the age prescribed by the rules of the company and unable to pass the physical examination required by the rules, procured another, who was competent, to make application and take the examination, and by means of a certificate thus obtained, secured the position. The decision denying the motion to strike was largely based upon Norfolk & W. R. Co. v. Bondurant’s Adm’r, supra. The court held that a number of questions might arise on the trial that could not be determined in advance on the motion to strike the plea and that “without further discussion, it seems - to me clear, whatever principle may be applied, that it cannot be here relied on to the extent of rejecting this plea offhand, and forbidding the matters set up in it, if proven, from becoming pertinent to the issues to be determined on the trial. ’ ’ It would seem fairly clear from a reading of the decision that the trial court did not intend to hold that the mere fraudulent act of the employee in obtaining employment prevented the relation of master and servant from existing between him and the railroad company at the time he was injured. The motion in Stafford v. Baltimore & O. R. Co., supra, was decided in November, 1919. In October, 1922, Payne v. Daugherty, 283 Fed. 353, was decided by the Circuit Court of Appeals, Eighth Circuit. That decision is clearly adverse to the present contention of the defendant. There the court says:

“A principal contention, embraced in a number of assignments, is that the trial court erred in excluding evidence offered to defeat the action, on the ground that the plaintiff fraudulently secured his employment, as pleaded, and in refusing instructions tendering such defense. In our opinion, the rulings were correct. The complaint is not that proof is incompetent which tended to attribute the fall from the car to prior injury or affliction. That is far different from permitting a retroactive dissolution of the relation of master and servant, by virtue of the contract, which, even if voidable, was, while it subsisted, attended with the duty, required by law, for the safety of the latter. Cases are cited involving different facts, but of contrary import in principle. We regard the decisions such as Lupher v. Atchison, T. & S. F. Ry. Co., 81 Kan. 585, 106 Pac. 284, 25 L. R A. (N. S.) 707, as declaring the sound and just rule, namely, that there is liability to the employee, notwithstanding the inducement to the contract.”

Lupher v. Atchison, T. & S. F. Ry. Co., supra, is, apparently, the leading case on the present question. It is so considered in Payne v. Daugherty, supra. We have heretofore quoted from the Kansas case sufficiently to show that it is directly opposed to the contention of the defendant. In Baker v. Beattie, — Tex. Civ. App. —, 222 S. W. 658, the facts are analogous to those in the instant case. The Court of Civil Appeals of Texas, in overruling the contention of the defendant that the contract of employment between the parties was void and the relation of master and servant did not exist, said:

“The contract of employment not being rescinded or canceled at the time of the injury, the appellee would be held to be an employee of the appellant. The contract of employment would not be absolutely void because of the alleged fraudulent statements. The alleged fraudulent statements would only afford grounds for a voidance or annulment of the contract of employment at the option of the company. And until the contract of employment was actually terminated by the company on the ground of the alleged fraudulent statements, the relation of master and servant would legally continue and exist.” (See also Lake Shore & M. S. Ry. Co. v. Baldwin, 19 Ohio C. C. 338.) A number of cases might be cited in which the courts have held that if a minor applicant for employment untruthfully represents himself to be of age in order to secure employment, and such representation is believed by his employer, he is not thereby barred from a recovery for injuries which he may suffer by the negligence of his employer, but we do not, however, regard these cases as having the same force as cases in which adulta are involved for the reason that statutory provisions and questions of public policy seem to enter into cases where minors are concerned.

After a careful consideration of the question, we have reached the conclusion that at the time the plaintiff sustained the injury in question the relation of master and servant existed between him and the defendant, and the contention of the defendant is, therefore, not sustained.

The defendant contends that “the verdict of the jury is contrary to the manifest weight of the evidence.” In the brief of each party pages are devoted to this contention and the weight of the facts and circumstances and the credibility of the witnesses are therein discussed at great length. In our judgment it would serve no useful purpose to set out and review the evidence of the respective parties. We are satisfied, after a very careful consideration of the present contention, that we cannot say that the verdict pf the jury is contrary to the manifest weight of the evidence. The plaintiff testified that a bright headlight on the Belt transfer engine blinded him so that he could not and did not see the caboose train that struck him coming until it was about ten feet away from him. The defendant strenuously contends that the evidence overwhelmingly shows that the headlight upon the transfer engine at the time of the accident was a dim one, and apparently argues that if it be conceded that the light was a dim one the case of the plaintiff falls. Without passing upon the contention of the defendant that the testimony of the plaintiff as to the light is without corroboration in the evidence, nevertheless, if it be assumed that the light was dim, still, as we read the record, the plaintiff made out a clear prima facie case of negligence against the defendant. It must be noted in this connection that the first count of the declaration is a general negligence count. In its argument the defendant apparently insists that the plaintiff was guilty of negligence. The burden of proving contributory negligence under the Federal Employers’ Liability Act is on the defendant (Fisher v. Chicago, R. I. & P. R. Co., 290 Ill. 49), and even if the plaintiff was guilty of contributory negligence, that fact, alone, would not bar a recovery but would mitigate the damages (Fisher v. Chicago, R. I. & P. R. Co., supra), and in the present case the jury was properly instructed on that subject, and as the defendant does not complain of the amount of the verdict, it is fair to assume that defendant is satisfied that the jury, if it found the plaintiff guilty of contributory negligence, took that fact into consideration in assessing the damages.

The defendant contends that “the plaintiff is not entitled to recover for the injuries claimed because such injuries resulted from the dangers incident to his employment, the risk of which he assumed.”

The accident occurred between 8 and 9 p. m., and at a point where certain lead tracks lead from the main lines to switch tracks. The plaintiff at the time was crossing the tracks at a crossway that employees habitually used in going about their work. The plaintiff saw a Belt Line train, consisting of about 80 cars, approaching from 'the south at a very slow speed, and it was natural for him to start across the tracks, in front of that long train, in order to get back to his work, as his “lunch” period was about up, and it would seem that he had time to safely cross in front of it. In any event, he did pass in front of it safely. About the time that he started to cross the tracks there was standing on a track 15 feet beyond that upon which the Belt Line train was approaching, and east of it, a train made up of an engine and tender and two cabooses. This train, apparently about the time that plaintiff was crossing in front of the Belt Line train, and without the knowledge of the plaintiff, was started northward, with the cabooses in front, was shoved by the engine between 20 and 35 feet, when the plaintiff, who was then passing over the track upon which the caboose train was coming, was hit by the foremost caboose and sustained the injuries of which he complains. It is clear from the evidence that there was no ringing of the bell on the locomotive of the caboose train, nor was there any signal of warning given of the start or approach of this train, nor was there any lookout with a light on the foremost caboose. In fact, the defendant offered no proof to the contrary and its contention, with reference thereto, is that the plaintiff assumed the risk incident to such a method of operation. It was the intention of the crew of the caboose train to cut the cabooses from the engine and tender and to “kick them” onto a switchtrack. The plaintiff introduced evidence that it was the custom and practice when cars and cabooses were shoved at night over the lead track where this accident happened, to have a man on the foremost car with a light. The defendant introduced evidence to rebut that offered by the plaintiff, but after a careful analysis of all the testimony in relation thereto, we are satisfied that the jury were warranted in finding that there was such a custom. The accident occurred at night, and the manner in which the caboose train was handled showed such a disregard for the safety of the employees that might be using the crossway that the jury, in view of all the facts and circumstances bearing on the subject, might well have refused to believe the contention of the defendant that the method of operation of the caboose train at the time and place in question was a customary one and known to the plaintiff. At the request of the defendant the trial court instructed the jury fully as to the law of assumed risk. It was a question of fact— not of law — whether the injury received by the plaintiff was occasioned by or through a peril of his employment, the risk of which he had assumed. The jury, by their verdict, have found in favor of the plaintiff on this issue and we feel that we would not be justified in disturbing this finding.

The only other contention of the defendant amounts to an assertion that the defendant has the right to have the present judgment passed upon by the federal courts.

The defendant makes no complaint as to any instructions given or refused, nor as to any ruling of the trial court in the matter of evidence, nor that the amount of the verdict is excessive. Neither the conduct of the trial court nor the counsel for the plaintiff is criticized, and it would appear that the defendant has had a fair and impartial trial.

The judgment of the circuit court of Cook county is affirmed.

Affirmed.

Barnes, P. J., and G-ridley, J., concur.


author: Mr. Presiding Justice Taylor

text:
    First District.
    Odd Meyer, appellee, v. Carolina Wood Products Company of Illinois et al., appellants.
    Gen. No. 31,706.
    Bill for accounting and receiver. Decree against defendants. Appeal from the Superior Court of Cook county; the Hon. Oscar Hebel, Judge, presiding.
    Heard in the third division of this court for the first district at the March term, 1927.
    Affirmed.
    Opinion filed December 21, 1927.
    Rehearing denied January 6, 1928.
    Green & Rice, for appellants.
    A. S. & B. W. Froelilieli, for appellee.
   Mr. Presiding Justice Taylor

delivered the opinion of the court.