author: Mr. Justice McSurely

text:
    Mary Ann Schwickrath, Minor, by Charles P. Schwickrath, Her Father and Next Friend, and Charles P. Schwickrath, Appellants, v. Frank O. Lowden et al., Trustees, Appellees.
    Gen. No. 42,254.

      Opinion filed January 25, 1943.
    Rehearing denied February 9, 1943.
    Royal W. Irwin, of Chicago, for appellants.
    Milton V. Thompson and Eaton Adams, both of Chicago, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

• Plaintiff, a school girl 15 years of age, was returning home from school on a northbound suburban train of the defendants, as was her daily habit; as it approached the station at 99th street where she was preparing to alight, she was thrown from the platform and severely injured; she brought suit for damages and had a verdict of $25,000; there was also a verdict for her father, Charles B. Sehwickrath, of $3,600 for medical expenses connected with the injuries to his daughter. The defendants moved to enter judgment in their favor notwithstanding the verdict, which motion was allowed, and from the adverse judgment plaintiffs appeal.

It is the established rule that on a motion for a judgment notwithstanding the verdict which has been allowed, the question presented to the reviewing court is whether there is any evidence which, taken with its intendments most favorable to the plaintiff, tends to prove the charge of the complaint, and if there is any evidence which, standing alone, tends to prove the material allegations of the complaint, the motion for judgment notwithstanding the verdict should be denied, even though upon the entire record the evidence may preponderate against the plaintiff so that the verdict in his favor cannot stand when tested by a motion for ' a new trial. Walaite v. Chicago, R. I. & P. Ry. Co., 376 Ill. 59.

At the point where plaintiff was injured defendants’ two railroad tracks run parallel curving toward the north. The coach on which plaintiff was riding was the ordinary passenger coach and at each end was an open platform from which three or four steps ran downwards ; on either side of these platforms at the top of the steps were iron gates which when opened swing back against the body of the car.

As the train approached the 99th street station plaintiff, as had been her custom, arose from her seat, walked to the head end of the car and stood on the platform preparatory to alighting at her station from the left of the platform; as she stood there waiting for the train to stop she held by her left hand to the handhold ; the gate to her right was closed, the one to her left was open; she testified that she hung onto the rail very tightly with her left hand; that they were very close to the station; the track curves at that point and she said that “When we hit the curve I Imew there was a violent lurch and it threw me and that is all. It jerked my hand loose from the railing and threw me when it struck the curve. I was holding on with my left hand very tightly and when it hit the curve, why, it lurched me off, like knocking a prop from under me. ’ ’ She was alone on the platform at the time. She was thrown to the ground and received severe injuries.

One of the charges of negligence stated in the complaint was that the car was carelessly and negligently jerked violently from side to side, throwing plaintiff to the ground.

Plaintiff’s testimony as to the unusual swaying and jerking of the train at this time is supported by other witnesses. Edward Hudon was in one of the coaches and as the train approached the station he says it “gave a kind of jerk ... a lurch from one side to the other. ... It was not the same kind of movement I felt when I went along the tracks before. . . . This time it happened to be a little more of a jerk than other times. ... It had an effect on me”,- that he was shaken east to the west and back again. Agnes Massias, a passenger, testified that she remembered distinctly that the train as it turned the bend “jerked pretty suddenly . . . And it jolted me from side to side in my seat.” Fred Faulkner also testified that as the train approáched the curve he noticed it was going faster than usual and that as it hit the curve it gave a sideward lurch that was much greater than usual, and a hook which he was holding-on his lap fell. A number of defendants’ witnesses testified that they were riding on the train at the time and did not notice any unusual jerk or lurching of the train as it approached the 99th street station.

The testimony on behalf of plaintiff tended to show that the train approached the station at unusual speed and that when it struck the curve or as it was being-stopped it jerked or lurched, as testified to by plaintiff’s witnesses. There was thus presented a question of fact as to the movement of the train. Applying- the rule stated in the case above cited, the trial court was not justified in passing upon the question of fact as to the presence or absence of a severe jerking of the train from side to side, throwing- plaintiff off the platform.

The trial court based its order for judgment for the defendants notwithstanding the verdict on the ground that plaintiff was guilty of contributory negligence as a matter of law. Apparently this was because of the fact that plaintiff was standing on the platform waiting for the train to stop, expecting to alight, when the lurching motion of the train occurred. There was evidence that it was customary for passengers intending-to alight from the train to go out onto the platform as the train approached the station, and the custom is so well established that the court will take judicial notice that passengers intending to alight must of necessity go on the platform.

Defendants seem to rely upon the presence of certain signs near the doors to the effect that passengers are not allowed to ride on the steps or platforms and must remain seated until the train comes to a full stop. It is in evidence that this rule is not strictly enforced; that passengers about to alight go to the platform for this purpose, as they are bound to do. Plaintiff herself testified that she went out to the platform, “as was my usual habit,” to alight. The conductor testified that as the trains approach stations he has seen passengers get up and walk to the door. Under these circumstances it was a question for the jury to determine whether the plaintiff, in her actions, was guilty of contributory negligence. We cannot agree that she was so guilty as a matter of law.

Also charged as negligence was the failure of defendants to keep the gates on the platform closed while the train was in motion. Plaintiff cites a number of cases tending to support the proposition that under certain circumstances it is the duty of the defendant to keep such gates closed so as to protect passengers going from one coach to another, or in standing on the platform preparatory to alighting. Defendant cites a number of cases, involving somewhat different circumstances, holding that the gates were not installed for the protection of passengers but to keep them from alighting nearest the parallel track, upon which other trains might be running. Again we have presented a question of fact as to whether the gate on the platform of the coach from which plaintiff was thrown should have been kept closed until the train stopped. It is sufficient to say, considering the many cases cited by both parties, that the questions of contributory negligence and of due care for the safety of the passengers there presented were held to be questions of fact which called for the conclusion of the jury. We are of the opinion this case involved such questions.

Under Supreme Court Rule 22, in effect November 25, 1941, a party who fails to file a motion for a new trial shall be deemed to have waived the right to apply for a new trial. The instant record shows that the defendants filed no motion for a new trial. It is therefore the duty of this court, if it disagrees with the order of the trial judge entering judgment for the defendants notwithstanding the verdict, to reverse this order and to enter judgments here against the defendants upon the verdicts, and it is so ordered.

Judgment reversed and judgments for plaintiffs entered in this court upon the verdicts.

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


source: Caselaw Access Project

license: Public Domain

text:
    Benjamin B. Morris, Appellee, v. Broadview, Inc. et al., Appellants.
    Gen. No. 42,300.

      Opinion filed January 25, 1943.
    Rehearing denied February 9, 1943.
    Jones, Mulroy & Staub, of Chicago, for appellants; Don Kenneth Jones and Ernest F. Staub, both of Chicago, of counsel.
    Benjamin B. Morris, pro se.

   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff brought this mandamus suit to compel defendants to permit him, as a holder of participating certificates in the Broadview, Inc., to examine its books and records and its list of shareholders. This was sought under section 45 of the Corporations Act, as amended July 21, 1941 (ch. 32, par. 157.45, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 32.045]). Defendants answered, and after hearing the court ordered the writ, from which defendants appeal.

Section 45 of the statute provides that any person who shall have been a shareholder for at least six months immediately preceding his demand, shall have the right to examine the books and the record of shareholders ; that this right must be exercised at a reasonable time, “for any proper purpose.”

Defendants say that plaintiff was afforded the opportunity of examining the books and records but not to make a list of the holders of participation certificates, and argue that his motive in making this list was not “for any proper purpose.”

Upon the hearing plaintiff introduced in evidence his participation certificates and copies of the demands served upon the defendants, with the provision of the trust agreement under which the certificates were issued which provides that holders of such certificates shall have the same rights with respect to examination of the books and records as are provided for shareholders of a corporation organized under the laws of Illinois.

In his complaint plaintiff alleged that his purpose in demanding that he be allowed to examine the books and records and list of shareholders was proper. Defendants argue that although plaintiff had alleged that his demands were ‘ ‘ proper and lawful, ’ ’ he offered no evidence as to his purpose. The trial court took the position that the burden was on the defendants to prove that plaintiff’s purpose was improper, and that they had failed in this respect.

The statute in question creates two classes of persons who have the right to examine the records of the corporation. The first is a person who shall have been a shareholder for at least six months immediately preceding his demand or the holder of at least 5 per cent of the outstanding shares, and demanding to examine the books and records for “any proper purpose.” Plaintiff is in this class. The second class of shareholders includes anyone who, irrespective of the period of time he shall have been a shareholder, and irrespective of the number of shares held, may compel by mandamus the examination of the books and list of shareholders, and conditioned “upon proof by a shareholder of proper purpose” hi making such demand. A reasonable construction of this statute would seem to be that any shareholder, regardless of the number of shares held or the period of time, must make proof of a proper purpose in asking for an examination of the books and records of the corporation, but that a shareholder qualified as to the period of time he has been a shareholder or where he owns 5 per cent or more of the shares may make such demand without being called upon first to make proof1 that his demand is for a proper purpose. Tending to support this construction of the act is the opinion in Miller v. Spanogle, 275 Ill. App. 335, which involved an appeal from an order awarding the writ of mandamus to compel defendant to permit petitioner to examine its books, etc. The opinion there quotes from 14 C. J. 862, sec. 1317, to the effect that the burden of proving that the purpose of the stockholder seeking inspection is improper is on the corporation alleging it, there being no presumption that the purpose is improper. And in Fletcher Cyc. Corp. (1st Ed.), sec. 2822, page 4103, the author says there is no presumption of bad motive of a shareholder seeking information. The opinion held that it was not necessary for the petitioner to allege facts showing that his purpose in seeking to inspect the records was proper. In Wise v. H. M. Byllesby & Co., 285 Ill. App. 40, a mandamus proceeding in. which the writ was awarded, it appears from the opinion that the answer of the defendants, as here, denied that the purposes of the petitioner in seeking an examination of the records were proper. The court held that although petitioner “perhaps . . . was not required so to do,” he had assumed the burden of proof and established a prima facie case. Defendants cite Neiman v. Templeton, Kenly & Co., Ltd., 294 Ill. App. 45, but in that case the petitioner had not been a stockholder a sufficient length of time to entitle him to examine the records without proof of his purposes.

In the present case defendants have not only offered to permit plaintiff to inspect its books and records, but also offered to mail to other stockholders such communications as met with the approval of defendants’ officers. This would seem to be an admission that plaintiff’s purposes were proper. This is not consistent with the claim of defendants that plaintiff must prove his right to the matters sought by him.

We are of the opinion that the evidence introduced by defendants to show that plaintiff’s purposes were not proper failed in this respect. It consists largely of statements by other attorneys said to have been made to them by plaintiff with reference to certain other buildings and transactions relating to them. These fall short of proof that plaintiff had an improper purpose in its demands in the instant case.

Plaintiff testified as a witness in the case but defendants did not cross-examine him. If they had substantial ground for questioning plaintiff’s motives they should have attempted to develop this when opportunity was afforded them to interrogate him. This was an added circumstance tending to- support plaintiff’s position of proper motives.

We are of the opinion the writ was properly awarded.

Plaintiff asks this court to dismiss this appeal as to the defendant Chicago Title and Trust Company. Apparently this is a renewal of the motion heretofore made and denied by this court. Plaintiff says the writ of mandamus does not run against this company and that long before the record upon appeal was filed in this court, on plaintiff’s motion the complaint was dismissed as against the Chicago Title and Trust Company. Under such circumstances it is ordered that the appeal as to that company is dismissed.

Affirmed.

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


author: Mr. Justice O’Connor Hr. Justice McSurely

text:
    Robert J. Bender, Defendant in Error, v. Martha Frost et al. Lawrence J. Young, Plaintiff in Error.
    Gen. No. 42,172.
    Opinion filed January 25, 1943.

      Cameron Latter and Philip J. Slotnikoff, both of Chicago, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.

By this writ of error Lawrence J. Young seeks to reverse an order entered by the superior court of Cook county, by which he was adjudged to be in contempt of court and sentenced to 60 days in jail. Robert J. Bender filed his verified petition in a foreclosure suit brought by him, in which he alleged that the premises being foreclosed consisted of a two-story frame building of one store and two apartments located at 5125 Wentworth avenue, Chicago; that October 24, 1941, an order was entered appointing Herbert C. Anderson, receiver, who qualified and entered upon the discharge of his duties; that Lawrence J. Young, prior to the beginning of the foreclosure suit and at the present time, was in possession of the premises; that on or about November 18, 1941, Young delivered to an agent of the receiver, a key giving access to the lower portion only of the building; that at about the time of the appointment of the receiver, Young was given a copy of the order of court appointing Anderson receiver who demanded possession of the premises or payment of rent; that Young neither surrendered possession nor paid any rent; that the property was in good tenant-able condition when the receiver was appointed but that Young had removed or permitted to be removed, all of the plumbing fixtures and lead pipes, electric fixtures and wiring, rear door to the store and rear porches, etc., rendering the building untenantable and practically destroying the value of it. That the removal of the items by Young, or permitting them to be removed, was in defiance of and contempt of court which was in possession of the building through its receiver. That in the opinion of Bender, Young removed the items mentioned from the premises, or permitted them to be removed “as a means of vengeance’’ upon petitioner on account of petitioner’s refusal to sell Young the trust deed and notes or to purchase from Young his pretended interest in the premises.

The prayer was that Young be required to restore the premises “to a good and tenantable condition arid to replace ... all portions thereof removed” by him or anyone with his sufferance. That in the event he refused to do so within a reasonable time to be fixed by the court he should be held to be in contempt of court and punished accordingly.

December 4, Young filed his verified answer in which he admitted that he was in possession of the premises at the time of the appointment of the receiver but averred that he had delivered up possession November 18, by delivering the key to the property to an agent of the receiver. He further averred that the premises were not intact and in good tenantable condition when the receiver was appointed and qualified; denied that he had removed or permitted to be removed, any of the fixtures, etc.; denied that he had ‘ ‘ exercised any vengeance whatever upon the plaintiff,” and averred that vandals unknown to him, at various times, had broken into the premises and removed part of the fixtures, etc. That he reported such acts of vandalism to the police on numerous occasions and one of the vandals was prosecuted criminally and convicted December 1, 1941; that there were possibly other prosecutions and convictions of the vandals of which he had no knowledge.

December 8, Young filed a petition for a change of venue but nothing appears to have been done and no reference is made to it by counsel for Young. December 18, the court entered the order appealed from, in which it is recited that the matter came on to be heard on the rule which had been entered against Young December 1, on plaintiff’s motion to show cause why he should not be held in contempt, etc.; that the court having considered the petition and the answer “and having heard evidence and argument thereon” and Young having been personally present in court at the time the rule requiring him to answer was entered, and also having been present at the hearing, the- court found that the foreclosure suit was brought by Bender to foreclose the lien of a trust deed on the building in question; that Anderson was appointed receiver and qualified by giving bond and entering upon the discharge of his duties. The court further found that at the time the suit was brought, and prior thereto, Young was in possession of the premises and “He presently continues in possession thereof,” although on November 18, 1941, he delivered a key to an agent of the receiver which gave access to the lower portion of the building; that about the date Anderson was appointed receiver and qualified, he delivered a copy of the order of court appointing him, and demanded possession of Young or the payment of rent; that Young had paid no rent and had not surrendered possession of the premises.

The court further found that the premises were in good tenantable condition when the receiver qualified; that Young “removed or permitted to be removed” from the premises, since the receiver was appointed, all plumbing fixtures, lead pipe, electric fixtures and wiring, rear door to the store, rear porches, trim, windows, partitions, sewer covers and sewer pipes from the premises and that such removal was in open defiance and contempt of court and that Young had failed to purge himself, and the court also found that Young was guilty of a further contempt in that he wilfully committed perjury in open court during the hearing. It was ordered that he be committed to the county jail of Cook county for a period of 60 days or until sooner discharged in due course of law..

No brief has been filed by Bender.

The theory of Young, as stated by his counsel is (1) that the acts of destruction and waste charged against him to have been committed on the property in possession of the court, through its receiver, “constitute a criminal contempt” committed out of the presence of the court; that he should have been discharged on his sworn answer, in which he denied the charges made against him in the verified petition, and the court was not authorized to hear any evidence.

We think there is no merit in the contention. The charge of contempt made against Young in the petition was an indirect contempt committed out of the presence of the court, civil in its nature, brought to advance Bender’s rights and not to vindicate the majesty of the law or the dignity of the court. Young was not entitled to be discharged on his sworn answer, but evidence was required and the court did not err in hearing the evidence. People ex rel. Burgeson v. West Chicago Park Com’rs., 275 Ill. App. 387. But we are of opinion that the order appealed from cannot stand. The prayer of Bender’s petition" was that Young be required to restore the premises in a good and tenant-able condition by replacing the parts he had removed therefrom and that in case he failed to do so, he be adjudged in contempt of court. The order did not require him to restore the parts, and under the allegations of the petition, the court was not warranted in adjudging him in contempt and sentencing him to jail without giving him an opportunity to restore the premises.

Counsel make the further point that the part of the order punishing respondent for his supposed perjury, committed on the hearing, was insufficient because it did not sufficiently set forth the facts which the court found constituted perjury. People ex rel. Bain v. Feinberg, 266 Ill. App. 306. The order finds that Young testified on several occasions that he had not been at the premises since July, 1941, and “subsequently, that he had been there since that time. The court finds that he was at said premises on several occasions during the period in question, and that his denial of being there was wilful perjury, . . .

“(b) His testimony concerning the making and cancellation of contracts for repair of said premises and concerning a mechanic’s lien claim filed by him was false and intended to mislead the court.

“(c) His demeanor on the witness stand was patently one of concealment, evasion and studied perjury.”

' We think these findings are insufficient. It might be that although Young testified he had not been at the premises since July, 1941, and that he subsequently testified that he had been there a number of times, he • did not recall this until the matter was probably ■brought to his attention. He might have been honestly mistaken. The further finding of the court, above quoted, concerning the cancellation of contracts and the filing of a mechanic’s lien, and Young’s demeanor on the witness stand are wholly insufficient, under the law. In a direct contempt, no evidence is required or permitted and to protect the defendant the law requires that the facts be substantially found in the order adjudging him to be in contempt of court. Rawson v. Rawson, 35 Ill. App. 505; People ex rel. Bain v. Feinberg, 266 Ill. App. 306; People v. LaScola, 282 Ill. App. 328. The practice in contempt proceedings is pointed out by our Supreme Court in People v. Sherwin, 353 Ill. 525, where the court said (527-528)': “It has long been established by the decisions of this and of other courts that a criminal contempt which is direct in its nature — i. e., which takes place in the very presence of the judge, making all of the elements of the offense matters within his own personal observation and knowledge, or which occurred out of his presence, if admitted by the contemnor in open court — may be punished summarily by the court without any formality of pleading, notice or answer. (People v. Rockola, 346 Ill. 27.) It is, we think, equally well established that if the contempt is indirect — out of the presence of the court and which is therefore dependent for its proof upon evidence of some kind — there must be a notice, citation or rule to show cause served upon the alleged contemnor.”

For the reasons stated the order of the superior court appealed from is reversed and the matter remanded.

Reversed and remanded.

Matchett, P. J., concurs.

Hr. Justice McSurely

specially concurring: I concur in the conclusion but not in all that is said in the opinion. I think the chancellor could have found Young guilty of contempt in wrecking the building and punished him for this, regardless of the kind of relief sought by Bender.


author: Mr. Justice O’Connor

text:
    Rose Miller, Appellant, v. Benjamin F. Miller, Appellee.
    Gen. No. 42,246.

      Opinion filed January 25, 1943.
    Rehearing denied February 9, 1943.
    Levinson, Becker, Peebles & Swiren, of Chicago, for appellant; Don M. Peebles and Katherine H. Johnson, both of Chicago, of counsel.
    Sabath, Edelman & Light, of Chicago, for appellee; Joseph Edelman, of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff, Bose Miller, May 8,1940, obtained a decree of divorce from defendant on the ground that he was guilty of extreme and repeated cruelty. In the decree defendant was ordered to pay plaintiff $15 a week for the support of their minor child (at that time one year old) until she had reached the age of 21. It was further decreed that the parties had entered into an agreement regarding the question “of alimony and adjustment of property rights” between them, a copy of which agreement was attached to and made a part of the decree; that the husband was to pay the wife $175 per month, commencing with the month of March, 1940, to and including the month of September, 1940, $15 per week of which was for the support of the child, and commencing with the month of October, 1940, to and including the month of September, 1943, the husband was to pay the wife $150 per month, $15 a week of which was for the support of the child. The agreement further provided that “the payments between March, 1940, and up to and including September, 1943, shall not be affected or modified by the remarriage of ’ ’ the wife. There was a further provision for payments to be made by the husband to the wife on and after October 1,1943, to the first of October, 1945, but which are not involved here.

The wife remarried May 30, 1941, and June 23, following, defendant filed his petition praying that the decree of divorce be modified so as to relieve him from further payments of alimony from and after the wife’s remarriage. She filed her “Supplemental and Alternative Answer” setting up the decree of divorce and the agreement entered into between the parties prior thereto, which was incorporated and made a part of the decree, praying that defendant’s petition for an order releasing him “from the payment of the alimony in gross as provided by the Decree of Divorce, be denied.” She afterward filed an amendment to the supplemental and alternative answer in which she alleged, among other things that the ‘1 alimony in gross for the support of the plaintiff, as provided in said agreement and as provided by the court, was in the total amount of $3,670.00.”

Following this, on November 5, 1941, the court entered the order appealed from, in which it is recited that the court considered the petition, the answer as amended, and arguments of counsel, and found that plaintiff had remarried May 30, 1941; that the decree of divorce was “not a decree for Jump sum’ payments in lieu of alimony but a decree for monthly alimony payments.” That the defendant had made all payments to and including the month of May, 1941, and that plaintiff was not entitled to any further payments since her remarriage, as § 18 of the Divorce Statute provided. Ch. 40, § 18, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 109.186].

Section 18 of our statute on Divorce, was amended by the Legislature in 1933. The amendment provided that “a party shall not be entitled to alimony and maintenance after remarriage.” In the instant case, defendant was decreed to pay plaintiff $175 per month until September 30, 1940, and thereafter $150 per month until September 30, 1943, “for alimony and support.” We think it clear that this was not alimony awarded for a gross sum. Thompson v. Mentzer, 216 Ill. App. 470.

The provision of the contract entered into between the parties for alimony became merged in the decree. Adler v. Adler, 373 Ill. 361. As said in that case, “The fact that the decree adopted the terms of the agreement did not destroy or affect the power of the court to alter such provisions when a change of circumstances justified a modification.” And further: “Respondent urged that because of the statement in the decree providing her remarriage should not be a cause for modification of the consent decree, the court was deprived of power to subsequently modify it. Grounds for divorce, payment of alimony and modification of the divorce decrees are regulated by statute. A court, when dealing with such matters, is exercising powers granted by the legislature and cannot, by incorporating such a provision in its decree, divest itself of the power to modify contrary to the legislative will.” And in discussing the amendment to § 18, above quoted, the court said: ‘ ‘ The amendment merely adopted the general rule and made it mandatory upon the court to cancel alimony payments in all cases where the recipient had remarried, regardless of whether or not there had been a change in the financial condition of the former husband.”

In the instant case, the amendment to § 18 made it mandatory for the court to cancel the alimony payments after the remarriage of the plaintiff; and the provision of the agreement entered into between the parties, which was made a part of the decree and which provided that the remarriage should not affect the monthly payments, was a nullity.

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

Order affirmed.

Matchett, P. J., and McSurely, J., concur.


text:
    Lady Esther, Ltd., Appellee, v. Lady Esther Corset Shoppe, Inc., Appellant.
    Gen. No. 42,258.

      Opinion filed January 25, 1943.
    Hyland J. Paullin, of Chicago, for appellant.
    Lederer, Livingston, Kahn & Adsit, of Chicago, for appellee; Archie H. Siegel and Sigmund Livingston, both of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff filed its complaint in equity to enjoin defendant from using the name “Lady Esther” or any part thereof, or any other name, designation or combination of words similar to plaintiff’s name, and for damages claimed to have been suffered by reason of defendant’s acts and practices. The cause was referred to a master in chancery who took the evidence, made up his report and recommended an injunction as prayed for, hut that plaintiff was not entitled to any damages. Defendant filed objections to the master’s report, they were overruled and ordered to stand as exceptions and after hearing the chancellor sustained the master and entered a decree in plaintiff’s favor from which defendant appeals.

The record discloses that Syma Busiel, who is the president and chief stockholder of plaintiff corporation, in 1913 engaged in the cosmetic business in Chicago under the name “Lady Esther.” She sold Lady Esther cream and powder going from house to house and later to drug stores in Chicago and vicinity. She made personal appearances in a number of department stores in Chicago where she demonstrated her cream and powder to prospective customers and in 1921 commenced to advertise. In 1922 she caused the “Lady Esther Company” to be incorporated and its name was later changed to “Lady Esther, Ltd.” From 1923 to 1940 plaintiff’s expenditures aggregated more than $12,000,000. In 1923 it advertised its products at an expense of $143,000. The advertising was increased each year and in 1936 it expended more than a million and a half dollars. During these years its sales were in excess of $36,000,000. The advertising was carried on by the use of newspapers, magazines and by radio on a nation-wide scale. All of the advertising appeared under the trade name “Lady Esther” and all of its products bore this trade mark.

The master found and was sustained by the chancellor, and defendant does not dispute the finding, that the “trade-mark or trade name, Lady Esther, has become and now is a symbol and name for cosmetics, toilet goods and preparations of high quality and excellence, and the trade-mark or trade name Lady Esther, has become and now is identified with the plaintiff’s products, and said designation, Lady Esther, has been, for many years, and now is, known in the City of Chicago, Illinois, and throughout the United States, as belonging to the plaintiff and its predecessors.”

Defendant, Lady' Esther Corset Shoppe, Inc., was incorporated in 1936, its president was Ben Siegel and his wife, Anna, vice president. He testified that he adopted the name “Lady Esther Corset Shoppe, Inc.” because he had a daughter named Esther. Defendant’s original place of business was at 810 South Oak Park avenue, Oak Park, and June 1,1938, it moved to 4150 West Madison street, Chicago, where it has since been located. Prior to the time defendant was incorporated, Ben Siegel owned and operated a similar business at the Oak Park address under the name of Lady Esther Lingerie & Corset Shoppe. In 1932 he went out of business. Defendant sells at retail exclusively, corsets, brassieres, underwear, hosiery, pocketbooks, gloves, house dresses and other ladies’ wearing apparel and costume jewelry doing an annual business of from $13,000 to $14,000. Defendant displayed the name “Lady Esther” on the fringe of its front awning at its place of business in Oak Park and later in Chi-' cago. Some of defendant’s packing boxes and bags have on them the name “Lady Esther Corset Shoppe”; the merchandise sold by it bears the name and label of the manufacturers of the merchandise. In the telephone directories its name appeared immediately above that of plaintiff’s. Defendant advertises once or twice a month in a local newspaper with a claimed circulation of about 30,000, at an expense of $15 to $20 per advertisement.

It was stipulated by the parties that the '“plaintiff does not manufacture, distribute, sell or display brassieres, corsets, ladies’ undergarments or merchandise of that sort and that defendant does not handle any products similar to those sold by the plaintiff and that defendant has never handled products similar to those sold or dealt in by the plaintiff.”

Counsel for defendant contends that “Illinois adheres to the ‘palming off’ rule in case of unfair competition. "Where there is no competition, there can be no ‘palming off.’ Since defendant was not in competition with the plaintiff, in any manner whatsoever, plaintiff was not entitled to the injunction prayed for in its complaint.” And in support of this four Illinois cases are cited: Stevens-Davis Co. v. Mather & Co., 230 Ill. App. 45; DeLong Co. v. Hump Hairpin Co., 297 Ill. 359; Johnson Mfg. Co. v. Johnson Skate Co., 313 Ill. 106, and Ambassador Hotel Co. v. Hotel Sherman Co., 226 Ill. App. 247. Without stopping to analyze the four cases, we think it sufficient to say that an examination of them discloses the fact that in each there was direct competition between the parties in the business each was conducting — plaintiff and defendant being engaged in the same line of business — and therefore the “palming off” rule was applicable. The holding in those cases, that where there was direct competition between plaintiff and defendant there must be a “palming off” to warrant relief, is far from saying that courts will not grant injunctive relief where the defendant’s conduct is likely to cause confusion of the traders so that the public believes or is likely to believe that the goods of the defendant are the goods of the plaintiff, or that the plaintiff is in some way connected with or is a sponsor of the defendant. In such situation relief will be granted although there is no competition. 38 Harvard Law Review, 370-374; Eckhart v. Consolidated Milling Co., 72 Ill. App. 70; Aunt Jemima Mills C. v. Rigney & Co., 247 Fed. 407; Ward Baking Co. v. Potter-Wrightington, 298 Fed. 398; Vogue Co. v. Thompson-Hudson Co., 300 Fed. 509; Investors’ Syndicate v. Hughes, 378 Ill. 413; Philadelphia Storage Battery Co. v. Mindlin, 163 Misc. (N. Y.) 52; Edison Storage Battery Co. v. Edison Auto Co., 67 N. J. Eq. 44.

In 38 Harvard Law Review, 370, in speaking of the necessity for actual competition in cases designated as “unfair competition” the author says: “The truism that law is a developing science is nowhere more strikingly illustrated than in the law of unfair competition. As late as 1742, Lord Hardwicke ‘knew of no instance of restraining one trader from making use of the same mark with another.’ During the next century the common law of trade-marks took shape. But just as soon as this body of law became reduced to a set of rigid rules, trading pirates adopted many new devices for taking advantage of the good-will of other men’s businesses which very cleverly avoided these rules. To protect the honest business man against these impostors equity developed the law of unfair competition.

“But the courts were to a great extent handicapped by the precedents of an era when unregulated competition legalized a very low type of commercial morality. In addition, the usual cases demanding relief under the law of unfair competition in the early days of equity’s protection happened to be simple cases of one ' trader’s passing off his own goods as those of a rival, so that ‘passing off’ would explain practically all the decisions.” And the author refers to the Vogue case, above cited, as follows: “In the recent case of Vogue Co. v. Thompson-Hudson Co., [300 Fed. 509] however, the Sixth Circuit Court of Appeals squarely repudiated such a doctrine and allowed a fashion magazine an injunction against a hat manufacturer who sought to secure for himself the benefit of the plaintiff’s goodwill and reputation in the field of fashion. It is impossible to find any element of competition between the parties, but ‘there is no fetish in the word competition: the invocation of equity rests more vitally upon the unfairness.’ ...

“Courts of equity in these unfair competition cases are seeking to protect the good-will and reputation of the plaintiff. Insistence by the courts upon the presence .of competition between the parties can only be justified upon a theory that good-will and reputation can only be damaged by competitors. But such a theory is untenable, in the light of human experience. If the defendant’s conduct is likely to cause confusion of the traders, so that the public believes or is likely to believe that the goods of the defendant are the goods of the plaintiff or that the plaintiff is in some way connected with or is a sponsor for the defendant, then a sufficient case is made out for injunctive relief. The result of a contrary rule would make the good-will and reputation of the plaintiff depend not only upon the conduct of the plaintiff but also upon the acts of the defendant and the excellence, or, what is more likely, the inferiority, of his products. . . .

“Another change that has come with the realization of this broad basis for ‘unfair competition’ is the elimination of the requirement of ‘fraud.’ Although the law of unfair competition has evolved through the application of principles of fraud, with the result that, in this country at least, there will be no relief where the defendant has acted in good faith toward both the plaintiff and the public, yet a realization that the true basis of equity’s interference in such cases is not fraud but the protection of good-will has caused many courts to question the propriety of inquiry into the defendant’s mental state.”

In Eckhart v. Consolidated Milling Co., 72 Ill. App. 70 the defendant was enjoined from using complainant’s trade marks in such a manner as probably to deceive customers or patrons; that the motives of the defendant in adopting the trade marks were immaterial and that the piracy would be checked at once by injunction; that it need not appear there was a fraudulent intent of the defendant to dispose of his goods as the goods of plaintiff, or that the public was in- fact misled into purchasing defendant’s goods believing them to be those of complainant. The opinion was written by Mr. Justice Adams, who cites a number of authorities to support the opinion.

In Aunt Jemima Mills Co. v. Rigney & Co., 247 Fed. 407 plaintiff, by extensive advertising, had created a market for its flour known as “Aunt Jemima” which was sold under that trade mark. Afterward defendant manufactured syrup which it called “Aunt Jemima” and an injunctive relief was granted plaintiff.

In Ward Baking Co. v. Potter-Wrightington, 298 Fed. 398 plaintiff was a dealer in flour which it named “Old Grist Mill.” Defendant was held to have infringed on plaintiff’s trade mark by selling wheat bread which it called “Homespun” in a wrapper with a picture of an old grist mill and in this advertisement used the words “Look for the Old Grist Mill.”. The court held the test was whether the similarity of brands would mislead the ordinary observer who usually does not stop to analyze such matters.

In the Vogue case, 300 Fed. 509 plaintiff published a magazine known as “Vogue” which became an authority on styles for women. Defendant was enjoined from using the name “Vogue” in connection with the sale of hats.

Our Supreme Court cites the Vogue, Aunt Jemima and Ward Baking Co. cases with approval in Investors’ Syndicate v. Hughes, 378 Ill. 413 where Mr. Justice Stone in speaking for the court said, (p. 422): “Plaintiff cites numerous cases where the courts have refused to consider the question of fraud or imposition on the public, in controversies between hostile corporations over the use of a name. In such cases it has been held that the injunctive relief sought was based upon the protection of property rights of the plaintiff, and that an injunction will not issue unless it is made to appear that the proposed use of the name will result in injury to the complainant. [Citing 3 Illinois cases.] Even in injunction cases between competing corporations the trend of decision is to place less emphasis on competition and more on confusion, as is evidenced by the following cases: Vogue Co. v. Thompson-Hudson Co., 300 Fed. 509, Aunt Jemima Mills Co. v. Rigney & Co., 247 Fed. 407. As was said in Ward Baking Co. v. Potter-Wrightington, 298 Fed. 398, ‘The test should be whether the public is likely to be deceived. ’ ”

A great many other authorities are cited in plaintiff’s brief where the same rule is followed. Derenberg on Trade Marks Protection and Unfair Trade, is also cited, where the author in referring to the Vogue case says (p. 423): “With this decision the law of unfair competition was freed of one of its heaviest chains. Any attempt to capitalize on the reputation or good will of another is declared unfair trade and therefore unlawful, even in the absence of ‘passing off’ or ‘competition’ in the literal sense of the word.” .

In the instant case we think it clear that the public might be deceived into thinking there was some connection between the defendant and the plaintiff companies. And the good-will of plaintiff, which it had built up at great expense over a period of years, would be whittled away. Courts of equity ought not to be so feeble as to be unable to prevent this. And the fact that defendant received a charter to use the name “Lady Esther Corset Shoppe, Inc.” does not protect it. Par. 157.9, sec. 9, ch. 32, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 32.009]; Investors’ Syndicate v. Hughes, 378 Ill. 413. The writ of injunction issued in the instant case to protect plaintiff’s trade name, “Lady Esther” is in harmony with the holdings of 7 other cases cited by counsel for plaintiff in their brief where plaintiff, “Lady Esther” was awarded an injunction against the defendants from selling hosiery, women’s clothing, jewelry and gloves under the trade name “Lady Esther.”

The decree of the superior court of Cook county is affirmed.

Affirmed.

Matchett, P. J., and McSurely, J., concur.


author: Presiding Justice Matchett.

text:
    People of the State of Illinois, Defendant in Error, v. Jesse Harrison et al., Plaintiffs in Error.
    Gen. No. 42,040.
    opinion filed January 25, 1943;
    rehearing denied February 9, 1943.
    Mayer Goldberg, for plaintiffs in error; Thomas J. Courtney, State’s Attorney, for defendant in error; Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, Richard B. Austin and Clement D. Cody, Assistant State’s Attorneys, of counsel.
   Opinion by

Presiding Justice Matchett.

“Not to be published in full.’’


text:
    People of the State of Illinois ex rel. William F. Thumm and Gottlieb Thumm, Appellees, v. Village of Lincolnwood et al., Appellants.
    Gen. No. 42,235.
    Opinion filed January 25, 1943.
    Murphy & Pearson, for appellants; Walter W. Pearson, John T. Murray and Lawrence L. O’Connor, of counsel; Urion, Bishop & Sladkey, for appellees; Howard F. Bishop and Robert F. Dewey, of counsel.
   Opinion by

Presiding Justice Matchett.

“Not to be published in full.’’


text:
    Vivian Kaplan, Appellee, v. Anton Kaplan, Appellant.
    Gen. No. 42,261.
    opinion filed January 25, 1943;
    rehearing denied February 9, 1943.
    Robert E. Cantwell, Jr., for appellant; David G. Falk and Edward W. Weiss, for appellee.
   Opinion by

Presiding Justice Matchett.

“Not to be published in full.’’


author: Justice O’Connor.

text:
    Farnsworth, Inc., Appellant, v. Liederman Manufacturing Company, Appellee.
    Gen. No. 42,271.

      opinion filed January 25, 1943;
    rehearing denied February 9, 1943.
    Teller, Levit & Silvertrust, for appellant; Blanksten & Lansing, for appellee.
   Opinion by

Justice O’Connor.

“Not to be published in full.”


text:
    Mary Smith, Appellant, v. Chicago Motor Coach Company, Appellee.
    Gen. No. 42,281.
    opinion filed January 25, 1943.
    William Henning Rubin, for appellant; Walter N. Murray and Chester D. Kern, for appellee.
   Opinion by

Justice O’Connor.

“Not to be published in full.”


text:
    People of the State of Illinois ex rel. Gertrude L. Killeen et al., Appellants, v. Joseph P. Geary et al., Appellees.
    Gen. No. 42,144.

      Opinion filed January 25, 1943.
    Rehearing denied March 22, 1943.
    Michael F. Ryan, of Chicago, for certain appellant.
    R. E. Blackwood, of Chicago, for certain other appellant.
    Barnet Hodes, Corporation Counsel, for certain appellees ; James A. Velde and L. Louis Karton, both of Chicago, of counsel.
    Poppenhusen, Johnston, Thompson & Raymond, of Chicago, for certain other appellees; Henry J. Brandt, Abraham Greenspahn and Adolf Loeb, all of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

December 5, 1940, Gertrude L. Killeen filed her petition praying that a writ of mandamus issue against the Civil Service Commissioners and their Chief Examiner and Secretary, to compel them to cancel ‘‘the eligible register created by” an original and promotional examination “for the filling of vacancies existing in the position of supervising field nurse in the classified service of the Board of Health of the City of Chicago ’ ’ and to hold within 30 days a promotional examination for the filling of vacancies in the position of supervising field nurse, and to post the list of eligibles within 90 days after such examination. January 3, 1941, an order was entered giving Leda Speiser leave to intervene as a party plaintiff and to file her petition within 10 days, which she accordingly did January 13, 1941. The petition, defendants’ motion to strike and other pleadings are exceedingly lengthy, which we think wholly unnecessary. O’Brien v. Frazier, 228 Ill. App. 118; People ex rel. Richards v. Allman, 289 Ill. App. 586. After the pleadings were settled the case was tried by the court without a jury. The court found in favor of defendants, dismissed the suit and plaintiffs appeal.

There is substantially no dispute in the evidence, most of the material facts being stipulated, from which it appears that both plaintiffs, Gertrude L. Killeen and Leda Speiser are field nurses in the classified service of the Board of Health of Chicago and have held such positions for many years. That prior to September 21,1938, the Civil Service Commissioners issued a call for certain examinations in which appeared the announcement for examinations numbers 5052 and 5053. One was designated “original” and the other “promotional” and both were to be‘held for the position of supervising field nurse. The announcement said the “promotional” examinations could be taken only by civil service field nurses who are in the next lower grade or rank to the supervising field nurses and who were then employed by the Health Department. The “original” examination, the announcement said, might be taken by anyone holding a certificate of registration as a registered nurse under the Illinois Nursing Act. (Par. 23, § 1 et seq., ch. 91, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 91.01 et seq.].) Notices were given by the commissioners as required, of the time and place of holding each of the two examinations. September 21, 1938, the examinations were held at the same time and place in the same room, and the questions were identical, but the marks and gradings were not the same. In the “promotional” they were “Duties, 5,” “Reports, 2,” “Efficiency, 2,” “Seniority, 1,” while in the one designated “original” the markings were “Special Subject, 5,” “Report, 2,” and “Experience, 3.” Each of these methods of marking was specified in the announcement made by the commissioners for the holding of the examinations. Forty-six out of 132 field nurses who were civil service employees of the Health Department took the “promotional” examination and 6 passed; 65 persons took the examination “original” and 4 passed. The list of those 10 who passed the examinations was not posted by the commissioners until May 17, 1940. There were 11 vacancies in the position of supervising field nurse and from time to time after the posting of the lists, appointments were made to fill the vacancies, those 6 women nurses who passed the “promotional” examination being appointed first and afterward the 4 persons who passed the “original” examination were appointed to 4 vacancies, leaving one of the vacancies still unfilled.

Plaintiff, Gertrude L. Killeen, testified that although she knew the promotional examination was to be held and had an opportunity to take it, and that no one prevented her from taking it, she did not do so “Because it was not confined to nurses of the lower grade.” Upon objection the court struck the answer. Plaintiff, Leda Speiser," took the promotional examination but failed to pass.

As above stated, the list of those persons passing the two examinations was filed May 17, 1940, by the commissioners and 4 days thereafter, May 21, the attorney for Gertrude L. Killeen, filed a written protest with defendants, the commissioners and their secretary and chief examiner, which stated that he represented a large group of field nurses, and protested against the posting on May 17, 1940, of the original registers created by the two examinations because the two examinations were held simultaneously September 21, 1938. That there was in reality but one examination and “it was not held under the provisions of Section 9 of the City Civil Service Act and Bule V of the Buies of the Civil Service Commission.” The attorney demanded a cancellation of the lists and that a promotional examination be held and limited to the field nurses who were in the next lower grade to the supervising nurses. Counsel for plaintiffs say, “This protest and demand was ignored.”

The record further discloses that the examiners who marked the papers of those taking the examinations were Helen Finan, who was employed by the Board of Health as Superintendent of Nurses at the Contagious Diseases Hospital, and Eloise Phelps, who was employed by the Board of Health as Superintendent of Nurses. Both of these-were affiliated with the Democratic Party and the third examiner was Miss McCall, who prepared some of the questions but at the time of the trial had resigned.

Plaintiffs’ theory of the case, as stated by their counsel, is that under the provisions of section 9 of the City Civil Service Act (par. 47, § 9, ch. 24½, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 23.048]) “the examination for the filling of eleven vacancies in the promotional position of supervising field nurse . . . should have been promotional only, limited and restricted to and competitive among field nurses in the classified service serving in the next lower rank or grade,” and that the commissioners were without authority to call simultaneously the “original” examination since there was a large number of persons in the next lower grade or rank desirous or willing to participate in the “promotional” examination. And counsel for plaintiffs’ further position is that the commissioners violated section 6, of the City Civil Service Act (par. 44, § 6, ch. 24½, Ill. Rev. Stat. 1941. [Jones Ill. Stats. Ann. 23.045]), for the reason that the three examiners were members of the same political party.

On the other side, defendants’ theory as stated by their counsel is that “Section 9 of the Civil Service law imposes a duty upon the Civil Service Commission to fill vacancies in the classified service by promotional examinations limited to those persons in the classified service next lower in rank or grade to the positions to be filled; that the Commission complied with the law by calling promotional examination 5053, which was limited to those persons in the classified service next below the grade or rank of supervising field nurse, . . . and by appointing to such positions the successful candidates of the promotional examination; that there is nothing in the law prohibiting the Commission from calling and holding an original examination simultaneously with a promotional examination as long as the persons who pass the promotional examination are first appointed to the vacant positions.”

Section 9 is as follows: “The commission shall, by its rules, provide for promotions in such classified service, on the basis of ascertained merit and seniority in service and examination and shall provide, in all cases where it is practicable, that vacancies shall be filled by promotion.- All examinations for promotion shall be competitive among such members of the next lower rank as desire to submit themselves to such examination ; and it shall be the duty of the commission to submit to the appointing power the names of not more than three applicants for each promotion having the highest rating. The method of examination, and the rules governing the same and the method of certifying, shall be the same as provided for applicants for original appointment. ’ ’

Section 2, of Rule V, of the Civil Service Commission is as follows: “Sec. 2, Eligibility: The Commission in its notices of examination shall define lines of eligibility for promotion, specifying by title of position the partcular rank or grade entitled to take such promotion examination. Promotion examinations shall be held when the next lower rank, whether in the same or a lower grade, as determined by the Commission, contains two or more eligible persons desirous of taking examination. Should not more than one eligible candidate register, or should all candidates fail to pass, an original entrance examination shall then be held. No persons shall be eligible for promotion from a position in any rank or grade to fill a vacancy in the next higher rank unless the position in which he is employed at the time of examination is in the same branch and class of service as the position to be filled and unless such person is at the time of examination actually employed in such branch and class, or is on leave of absence, or is eligible for reinstatement.”

Counsel for plaintiffs say that section 9 requires the commission by its rules to provide for promotions “in all cases where it is practicable, that vacancies shall be filled by promotion. It shall thereupon by rule fix lines of promotion.” That the commission has done this by adopting § 2 of Eule V, which provides that “Promotion examinations shall be held when the next lower rank, . . . contains two or more eligible persons desirous of taking examination. Should not more than one eligible candidate register, or should all candidates fail to pass, an original entrance examination shall then be held.” And it is argued this rule was not followed by the commissioners in the instant case because, as we understand the argument of counsel, there were 132 persons who were eligible to take the promotional examination and 46 of those did take it.

While the rule was not literally followed, we think it was not violated even if we assume there were two examinations held, one designated “original” and the other “promotional” for the reason that proper notice was given that a promotional examination would be held and all of those persons who were eligible to take such examination, and desired to do so, were permitted to take the examination and those that passed the promotional examination were certified and appointed to the vacancies. It was not until after those who had successfully passed the promotional examination and were appointed to the position of supervising nurse that the others who took and passed the original” examination were appointed to some of the remaining vacancies.

Plaintiff, Gertrude L. Killeen, was given an opportunity to take the promotional examination but she saw fit not to do so and we think she ought not now complain and say that another promotional examination be held. And with greater reason, we think, should Leda Speiser not be permitted to -complain because she took the promotional examination and failed to pass. Neither plaintiffs, nor any one else, so far as we are advised, have at any time made any complaint that the questions were improper or that the grading of the papers of those who took the examination was in any way contrary to what the law required. Moreover, we might add that from 1903 to the present time under all administrations of the city and under all Civil Service Commissioners, original and promotional examinations have been held concurrently by the Civil Service Commission covering practically every civil service position in the city. The uncontradicted evidence of this fact is in the record that such examinations were concurrently held (about 500) and so far as the record discloses, no objection was ever made to this method until the examinations were held which are involved in the instant case. This fact, of course, is not binding on the court but only goes to show that all commissioners for about 40 years have construed the rules as they were construed by the commissioners in the instant case.

Counsel for plaintiffs to sustain their contention cite a number of authorities and reliance is chiefly placed on the case of People v. Errant, 229 Ill. 56, where a writ of mandamus was sought to compel the Civil Service Commissioners to hold a promotional examination for the position of assistant superintendent of streets in charge of streets and alley cleaning. In that case a number of questions were involved, one of which was whether ward superintendents were in the next grade or rank to the assistant superintendent of streets in charge of streets and alley cleaning. And another question for decision was whether the commissioners ’ determination, that it was not practicable to fill the position, was final and binding. There being a vacancy, a temporary appointment was made and renewed from time to time “until finally a general examination was held, and it happened that the same man who had been holding under temporary appointments passed the examination by a slightly better grade than his competitors, and hence he was then appointed as a result of the examination.” In that case there was no promotional examination held but only the general examination. The court held this was not a compliance with the law and a writ of mandamus was awarded and the holding of the promotional examination was ordered. In that case it was further contended that the man who passed the general examination and received the appointment should have been made a party. The court in passing on the question said: “We fail to see how he is interested in the holding of the examination. None of the applicants may make the required grade on examination, and should they all fail the present incumbent could not be disturbed.”

A further point is made by counsel for plaintiffs that the three persons appointed in the instant case to conduct the examination were all members of the same political party, contrary to the provisions of section 6 of the City Civil Service Act, which provides the Civil Service Commission shall control all examinations and they may designate a suitable number of persons to be examiners and that “the examiners at an examination shall not all be members of the same political party.”

Counsel say that the testimony of both Eloise Phelps and Helen Finan shows that they were affiliated with the Democratic Party, that they graded and scored the papers and that while Mr. Osborne, Secretary of the Civil Service Commission and a defendant, testified that the other examiner, Miss McCall, was a Republican she had nothing to do with the marking of the papers. And that after the case was heard and when plaintiffs’ motion for a new trial came on for hearing, counsel for plaintiffs offered to prove that Miss McCall was a Democrat.

On the other side, counsel for defendants say that the requirement of law that not all examiners shall be members of the same political party was strictly complied with; that there'were three examiners, Phelps, Finan and McCall, appointed by the commission. That Finan and Phelps were both called as court witnesses and testified that they were affiliated with the Democratic Party and that Miss McCall, who was beyond the jurisdiction of the court, did not appear but Osborne, the Chief Examiner, testified Miss McCall was a Republican. We think it was a matter of discretion with the trial judge whether or not he would permit further proof to be offered by plaintiffs on the motion for a new trial.

Counsel for defendants contend that the judgment is right and should be affirmed • for the reason that “Plaintiffs were guilty of laches in not bringing their petition for mandamus until twenty months after the purported void examination had been given.” We think there is merit in this contention. As above stated, the record discloses that prior to September 21, 1938, notice that the examinations would be held on September 21, was given and plaintiffs knew all about it from that time. The examinations were held at that time and May 17, 1940, the list of those who successfully passed was posted. Four days afterward, counsel for plaintiff Gertrude L. Killeen, protested but nothing further was done until the petition was filed nearly 7 months afterward, December 5, 1940.

In People ex rel. Richards v. Allman, 289 Ill. App. 586, we said: “We are further of opinion that the court properly sustained defendants’ motion to strike the several petitions, amendments, and counterclaim, on the ground that the men seeking the writs were guilty of gross laches. It is the law that where one seeks a writ of mandamus in a case such as the one at bar, he must not only act promptly in beginning his action but he must also see that it is expeditiously prosecuted as well. People ex rel. Lynch v. City of Chicago, 271 Ill. App. 360, and People ex rel. Jahn v. City of Chicago, 279 Ill. App. 624.”

No sufficient reason appears why plaintiffs could not, within a reasonable time after the notice was given that the examinations would be held, have taken action to stop the holding of the examinations and to compel the holding of a' promotional examination as they now contend should have been done.

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

Judgment affirmed.

Matchett, P. J., and McSurely, J., concur.


author: Mr. Justice Wolfe

text:
    Willard Moore, Appellee, v. Anna Young, Appellant.
    Gen. No. 9,841.

      Opinion filed February 19, 1943.
    Smith & Brower, of Sycamore, for appellant.
    Joseph D. Ryan, of Chicago, and Harold E. Mann, of De Kalb, for appellee.
   Mr. Justice Wolfe

delivered the opinion of the court.

This is an appeal from a judgment rendered in the circuit court of DeKalb county, Illinois, in June 1942, in favor of the plaintiff, Willard Moore, against the defendant, Anna Young. Judgment was for $5,000. The suit is based upon an action at law brought by Willard Moore to recover damages for an injury he sustained as a result of being struck by an automobile being driven by the defendant, Anna Young. The accident happened on Seventh street in the city of DeKalb, in DeKalb county, Illinois, on September 30, 1940.

The complaint on which the case was finally submitted to the jury, consisted of two counts. The first count charged negligence on the part of the defendant which was the cause of the accident, and alleged that just prior to, and at the time of the accident, the plaintiff was in the exercise of due and ordinary care for his own safety. The other count is what is commonly termed, a “wilful and wanton one.” There is no question raised in regard to the pleadings in the 'case, so they will not be set forth in detail. At the time the court gave the instructions to the jury, he also submitted to them a special interrogatory for their consideration, namely, “Was the defendant, Anna Young, guilty of wilful and wanton misconduct at, and immediately prior to the happening of the collision in question?” The jury answered this interrogatory “yes.” At the close of the plaintiff’s evidence, and again at the close of all of the evidence, the defendant tendered an instruction to have the jury find the defendant “not guilty,” which the court refused to give. After the jury rendered its verdict, the defendant entered her motion for a new trial, which was overruled. Judgment was entered on the verdict in favor of the plaintiff for $5,000. It is from this judgment that the defendant has perfected an appeal to this court.

The appellant has assigned twenty-five different errors which she relies upon for reversal, but a number of them are not argued. We will consider the ones that have been argued in the order they are set forth in the appellant’s brief. The first is that the conduct of the attorney in questioning the jurors on their voir dire, as to their acquaintance with Harrell M. Stewart, who was the agent for the insurance company which carried the insurance for the defendant, and in his cross-examination of the defendant’s witness, Emma Modeen, was prejudicial error and the court should have granted her motion to withdraw a juror and continue the case. In support of her contention, the appellant has cited numerous cases, both of the Supreme and Appellate Courts, where the court criticized the litigants for mentioning an insurance carrier in the trial of the lawsuit. Our attention has not been called to any case where the court has held it to be reversible error under such circumstances, as the abstract and brief disclose happened in this case. Mr. Stewart seemed to be very active in gathering evidence, and trying to adjust the differences between the plaintiff and the defendant. It also developed that two of the prospective jurors had been driving back and forth to the court house in Sycamore from DeKalb with the wife of Mr. Stewart during the pendency of the case. Relative to the cross-examination of Mrs. Modeen, it has always been the law that the opposing party has a right to show interest (if any,) in the result of the suit, or prejudice of the witness. It is our conclusion that the trial court properly held the cross-examination of the witness, and the examination of the jurors within proper bounds.

The next assignment of error is that the court erred in denying defendant’s motion to withdraw the wilful and wanton count of the complaint at the close of the plaintiff’s case, and at the close of all of the evidence, as there was no evidence to sustain it; that the court erred in submitting to the jury the special interrogatory on wilful and wanton conduct, as there was no evidence to support it. The evidence of how this accident occurred, is in sharp conflict. The plaintiff and his witnesses testified that the plaintiff was walking north on Seventh street which is a paved street 60 feet wide. The pavement is of brick and had been down many years. Seventh street runs north and south, and on the east side of the street, where the accident in question happened, dirt, cinders, etc., had accumulated for a long time. Grass and weeds were growing in this rubbish on top of the old pavement. The plaintiff was walking on part of this dirt at the time that he was struck by the defendant. The plaintiff and his witnesses claim that there was no warning of any kind given by the defendant, before she ran into and injured the plaintiff. The defendant claims that she was driving east on Locust street, stopped for traffic to go by, and turned north on Seventh street; that she was driving at a very reasonable rate of speed; that she didn’t see the plaintiff, or his stepson, who was walking with him, until just before she reached them; that the plaintiff turned around and fell in front of the car.

It was a clear day and there was nothing whatsoever to prevent the defendant from seeing the plaintiff, since he was walking along a level street. The jury evidently believed the testimony of the plaintiff and his witnesses, rather than that of the defendant, and we think under such conditions, the jury was justified in finding that the defendant was driving what would be legally termed “wantonly and wilfully.” All of this was a question of fact to be decided by the jury, and we cannot say that their finding is against the weight of the evidence.

The next point raised by the appellant is, that the plaintiff was guilty of contributory negligence, and cannot recover, and the trial court erred in failing to instruct the jury to find the defendant not guilty at the close of the plaintiff’s case, and at the close of all of the evidence, as requested by the defendant. We find no merit in this contention for two reasons, first, that it was a question of fact for the jury to decide as to whether the plaintiff was guilty of contributory negligence, and the second is, that the case was submitted to the jury on two counts, one of negligence, and the other of wilful and wanton misconduct, and since the jury found the defendant guilty of wilful and wanton misconduct, it is immaterial whether the plaintiff was guilty of contributory negligence.

It is insisted that the court erred in refusing to give the defendant’s instructions 3, 5 and 6 as requested. The defendant’s refused instruction No. 3 was covered by other instructions. The defendant’s refused instruction No. 5 is as follows: “The court instructs the jury that it is entirely and perfectly lawful for a man or woman to operate and drive an automobile along public streets and highways of the State of Illinois, and the mere fact that plaintiff was struck by the automobile of the defendant, in no way of itself makes the defendant liable, and if you believe from the evidence in this case that the defendant, Anna Young, in driving the automobile along the street in question, was using the care and caution that an ordinary, careful and prudent person would have used, under the same circumstances, it will be your duty to find the defendant not guilty.” The first part of the instruction is purely an abstract statement of the law, and the question whether men and women have the right to operate automobiles on the public streets, was not an issue in the case. The other part of the instruction was fully covered by other given instructions.

Defendant’s instruction No. 6, is a quotation from the statute, and it is as follows: “It is the duty of any person walking along and upon improved highways to keep on the left of the paved portion, or upon the left-shoulder thereof, and when meeting a vehicle when walking on said portion, to step off to the left.” This is purely an abstract statement of law. In the case of Mayer v. Springer, 192 Ill. 270 our Supreme Court, in criticizing a similar instruction, uses this language: “The instruction is purely an abstract statement of law, and the giving of such instructions has not been commended, although it is not regarded as error to give one of that character if it has no tendency to mislead. It is the duty of the court to give to the jury, in its instructions, rules of law which are applicable to the evidence in the case, and to make the application so that the jury may understand the relation of the rules to the evidence. The court did not apply this instruction to the evidence in any way, and, of course, could not do so, since there was no evidence to which the court or jury could apply it.” This case has been followed in the People v. Isbell, 363 Ill. 264; People v. Lehner, 335 Ill. 424; Garvey v. Chicago Rys. Co., 339 Ill. 286; Bagaini v. Donk Bros. Coal & Coke Co., 199 Ill. App. 76; Burke v. Zwick, 299 Ill. App. 558; and in Smith v. Illinois Power Co., 279 Ill. App. 505. The court did not err in refusing to give the defendant’s instructions.

It is claimed that the trial court erred in giving plaintiff’s instructions Nos. 3, 5 and 6 relating to the degree of care required of the plaintiff. We find no merit in this contention, and even if we did, the appellant is in no position to raise this question, as she is guilty of the same error, if any, in referring to the contributory negligence of the plaintiff in her instructions Nos. 27, 29, 30, 32 and 34. We find no merit in the contention that the court erred in giving to the jury plaintiff’s instructions 5, 9 and 10.

Complaint is made in regard to the general verdict of the jury in this case, because there is a negligent count and a wilful and wanton count in plaintiff’s complaint. Where the complaint consists of two counts, one which states a cause of action the gist of wilful and wanton misconduct, with the other based on negligence only, and the verdict is general, without specifying the count on which it is based, the presumption is that the verdict is based upon a cause of action of which wilfulness and wantonness is the gist, and the amendment of 1935 to the Judgment Act requiring a special finding that malice is the gist cannot be applied to defeat this presumption where a count charging wilful and wanton negligence remains in the declaration Reell v. Central Ill. Electric & Gas Co., 317 Ill. App. 106 (Greene v. Noonan, 372 Ill. 286.) In the present case we are not concerned with some of the questions raised by the appellant, as there can be no doubt that the jury found the defendant guilty on the second count of plaintiff’s complaint by answering in the affirmative the special interrogatory, as to whether the defendant was guilty of wilful and wanton misconduct, as before stated in this opinion. We think, from the evidence introduced in this case, the jury was justified in coming to the conclusion that the defendant was guilty of wilful and wanton misconduct which caused the injuries to the plaintiff.

It is insisted by the appellant that the verdict of $5,000 is so grossly excessive as to show prejudice on the part of the jury. It is the peculiar province of the jury to weigh the testimony of the various witnesses, and then from all the evidence, give to the plaintiff Avhat they think the evidence shows is a fair compensation for the injuries which he had sustained. We cannot say that this verdict is so excessive as to indicate the jury was prejudiced by anything which happened in the trial. Therefore, the judgment of the trial court is affirmed.

Affirmed.