author: Mr. Presiding Justice Wolfe

text:
    People of State of Illinois ex rel. Patrick W. Malone, Appellee, v. Edwin Mueller et al., Appellants.
    Gen. No. 10,056.

      Opinion filed March 8, 1946.
    Opinion modified and rehearing denied May 17, 1946.
    Released for publication May 17, 1946.
    Bartley & Youngs, of Peoria, for appellants; Joseph P. Bartley and Thomas B. Kennedy, both of Peoria, of counsel.

      Champion, Gaskins & Lee, of Peoria, and Londeigan & Londeigan, of Springfield, for appellee.
   Mr. Presiding Justice Wolfe

delivered the opinion of the court.

In the month of April 1933, Patrick W. Malone retired as second assistant fire marshal of the fire department of the City of Peoria. Shortly thereafter, he made written application for a pension as a retired fireman, to the Board of Trustees of the Firemen’s Pension Fund of the City of Peoria. On May 3, 1933, the board granted him a pension of $75 per month, which was one half of his salary when he retired. This pension was paid to him until May 7, 1935, when he was appointed first assistant fire marshal. No pension was paid to him during the time he was first assistant fire marshal. Malone resigned as first assistant fire marshal and retired from the fire department, and his pension payments were resumed and paid to him until May 14, 1941, when he began to perform the duties of fire marshal and acted in such capacity until February 1, 1944, when he resigned. Malone did not pay any dues into the firemen’s pension fund during the time he acted as fire marshal. The salary of fire marshal was $250 per month, which Malone duly received until May 16, 1943, when he filed a quo warranto proceeding in the circuit court of Peoria county to establish his title to the office of fire marshal. Whether Malone was duly appointed fire marshal is one of the disputed questions in this case. As will hereafter appear, Malone was paid the salary of fire marshal from May 16, 1943, to February 1, 1944, by the City of Peoria.

On February 11, 1944, Malone served written notice on the board of trustees of the pension fund demanding that he be paid a monthly pension of $125 and also' $75 a month as his pension money during the time he acted as fire marshal. Malone tendered the board $165, which was two per cent of the salary of fire marshal during the time he acted as fire marshal, which the board refused to accept. On October 22, 1944, the board advised Malone that it refused to comply with any of his demands.

It was the duty and province of the Board of Fire and Police Commissioners of the City of Peoria to appoint all officers and members- of the fire department of that city. The general ordinance of the city creates the office of fire marshal, as chief of the fire department. The office has existed for more than 25 years. The statutory provisions involved in the case are to be found in Chapter 24 of the Revised Statutes under the heading “Firemen’s Pension Fund — Municipalities of 5,000-200,000.” Pars. 918 et seq. [Jones Ill. Stats. Ann. 100.272 et seq.].

On November 6, 1944, Malone filed his petition in the circuit court of Peoria county for a writ of mandamus against the members of the Board of Trustees of the Firemen’s Pension Fund of the City of Peoria alleging, inter alia, that the action of the board in refusing to pay the petitioner $75 a month during the time he was acting as fire marshal and denying his request for a pension of $125 after his resignation as fire marshal, is presumptuous, unlawful, arbitrary and unreasonable. The petition prays for a writ of mandamus commanding the board to forthwith pay petitioner $75 for each month during the period from May 14, 1941, to February 1, 1944, and a pension of $125 per month commencing February 1, 1944.

Two allegations of the petition are denied by the answer of the respondents. These allegations of the petition are herewith set forth. “7. That on the 14th day of May 1941, the duly qualified and acting members of the Board of Fire and Police Commissioners of the City of Peoria, Illinois, did appoint the said Patrick W. Malone to the office of fire marshal for the City of Peoria, Illinois, and issued to him a certificate of his appointment to said office on said date, a copy of said certificate being marked, ‘Plaintiff’s Exhibit A’ attached hereto and made a part hereof; that the said Patrick W. Malone entered active service as said fire marshal upon the Fire Department of the City of Peoria on said date receiving a salary of $250 per month which was the salary attached to the rank of fire marshal and that upon said date the Board of Trustees of the Pension Fund of the City of Peoria unlawfully and improperly suspended his monthly pension payments.” “13. That there were no terms or provisions in the Statute in effect May 7, 1941, which authorized defendants to suspend pension payments when a retired fireman returned to active service in the fire department. (Chap. 24 sec. 924 Ill. Rev. Statutes, 1939.) ”

With their answer the respondents filed five separate defenses, the second one not being urged. The first separate defense is directed to the claim of the petitioner that he is entitled to the pension of $75 per month during the time he was acting as fire marshal. The gist of this defense is that the petitioner received the monthly salary of $250 while acting as fire marshal and petitioner “held himself out to the public as being an active fireman and in the active service of the fire department, and not as retired fireman, and that it was and is contrary to public policy and the law that said Patrick W. Malone should be paid a pension as a retired fireman during the time he was acting and receiving a salary as an active fireman.”

The third separate defense is directed to the claim of the petitioner that he is entitled to be paid an increased pension of $125 per month. The purpose of this defense is to set up facts supporting the final paragraph thereof, which is here quoted. “That the said Patrick W. Malone was unlawfully and improperly appointed to said position as fire marshal, and he unlawfully and improperly assumed to act as such from May 13, 1941, to February 1, 1944, and that at no time was he a de jure fire marshal of said City of Peoria, nor at any time more than a de facto officer.”

It is alleged in the third defense that the petitioner was duly appointed a fireman on June 3, 1901, and on May 20, 1930, he was promoted to the position of second assistant fire marshal and resigned from the fire department on or about April 29, 1933, when he made application to the respondents as a retired fireman for a pension, and was granted a pension of $75 per month on May 3, 1933; that his pension was paid to him monthly thereafter, until he was appointed first assistant fire marshal on May 7, 1935, when his pension was suspended; that petitioner resigned as first assistant fire marshal on May 7, 1937, and his pension was paid to him until he re-entered the fire department as an active fireman, assuming to act as fire marshal on May 13, 1941; that after the petitioner retired as first assistant fire marshal, one Robert Spencer was duly appointed to that position and \he has continuously held said position, which during all the time mentioned in the petition was the next lower rank; in the fire department to the position of fire marshal.

It is further alleged in the third defense, for the purpose we have above stated, that on May 13, 1944, and at all times prior and subsequent thereto, there were in full force, as required by law, rules and regulations of the Board of Fire and Police Commissioners of the City of Peoria. These rules and regulations are set forth in haec verba in the defense. The purport of the rules and regulations appears from the following paragraph of the defense. “That on or prior to the date of Such alleged certificate, viz., May 14, 1941, (certificate of petitioner’s appointment as fire marshal and Exhibit A. of the petition) the Board of Fire and Police Commissioners of the City of Peoria did not nor did they at any other time (a) receive any application from the said Patrick W. Malone for his appointment as fire marshal as provided by the rules and regulations of said board, (b) examine the said Patrick W. Malone as to his mental or physical qualifications or other attributes or competency for the position as fire marshal of the City of Peoria, (c) take or adopt any formal action appointing said Malone fire marshal, or (d) actually appoint him as such fire marshal; nor was any examination of any kind ever given to or required of the said Malone in connection with the position of fire marshal of the City of Peoria or his alleged appointment thereto, nor did the said Malone ever take or pass any examination of any kind; that on the 14th day of May 1941, the said Malone was of an advanced age and in his seventy-first year and physically unfit and disqualified to act as fire marshal.”

It is further alleged in the third defense: "That at no time prior to said May 14,1941, nor on or after said date did the Board of Fire and Police Commissioners by resolution or otherwise fix any time or place of examination of applicants for the position of fire marshal of the City of Peoria in the fire department, then vacant, nor did said board on or prior to said date or afterwards ever give, post or publish any notice as required by its rules and regulations and the Statute in such cases made and provided of the time and place of any such examination to enable those eligible and who might so desire to take such examination.

“That on said 14th day of" May, 1941, and prior thereto since May 7, 1937, and afterwards, the said Malone was not eligible for appointment as a fire marshal of the City of Peoria nor was he eligible to take such examination because he was not a member of the fire department, having resigned and retired therefrom, and such appointment to the vacancy in the office of fire marshal should have been filled by the person holding the next lower rank in said department or some other active member of the fire department on the basis of ascertained, merit and seniority in service and examination as provided in said rules and regulations of said board and the act creating and providing for said board; that Robert Spencer was then legally holding the position next lower rank as first assistant fire marshal and he was thoroughly competent to perform the duties of fire marshal and he was not promoted nor ever given an opportunity to apply, for or take the examination for appointment as, fire marshal to fill such vacancy, nor was any other active fireman in the fire department given any such opportunity.

“That although said Patrick W. Malone had so resigned and separated himself from the fire department on May 5, 1937, and thereafter held no position of any kind on or in the fire department prior to May 13, 1941, and although there was and is no warrant in law for such attempted appointment, nevertheless on said last mentioned date the Mayor of the City of Peoria, unlawfully, assumed to appoint said Patrick W. Malone as fire marshal, and in a meeting of the City Council of said City held on said last mentioned date announced to the Council his purported appointment of Malone as fire marshal, and then and there requested the Council to confirm such appointment, and the said City Council in such meeting thereupon by unanimous vote purported, to confirm such unlawful and unwarranted appointment. That Malone’s bond as fire marshal was approved by unanimous vote of the City Council.

"That the next day, on May 14,1941, the members of the Board of Fire and Police Commissioners of the City of Peoria, acting individually, as a matter of political expediency and because the said Mayor had so unlawfully appointed, and the said City Council had, so unlawfully confirmed said Malone, the alleged certificate of appointment, a copy of which is attached to the petition as “Plaintiff’s Exhibit A;” that said certificate was and is colorable and intended to be color-able at the time it was so signed and delivered, and was and is false and untrue and was never intended to be and never was a correct statement of the facts either as to appointment or otherwise.”

The fourth separate defense is directed to the petitioner’s claim of an increased pension of $125 per month. This defense in substance is that, at the time of the alleged appointment of petitioner as fire marshal he was more than 35 years of age — past 70 years, and he did not make application to the Board of Trustees of the Firemen’s Pension Fund of the City of Peoria under the provisions of the Firemen’s Pension Fund Act to come under the provisions of the Act for any increase of pension, nor did he apply for, nor pass a medical examination to determine his physical condition as required by the Act; that petitioner did not make any claim to said pension board for any increase of pension, and he accepted the salary of $250 per month as fire marshal for the whole period from May 13, 1941, to February 1, 1944, without deduction of any amounts for the pension fund as provided by law, and without protesting to the City of Peoria to make such deductions.

The fifth separate defense is directed to both claims of the petitioner, and in particular is set up as a defense to paragraph 13 of the petition. This defense in substance is that under the terms of the Firemen’s Pension Fund Act as amended, and under which the parties are now operating, petitioner was not entitled to any pension payments while he was assuming to act as fire marshal and in the active service of the fire department; that when petitioner ceased to act as fire marshal he was not entitled to an increased pension, but only to have resumed his monthly pension of $75 per month. (See, Ill. Rev. Stat. 1945, ch. 24, par. 924b [Jones Ill. Stats. Ann. 100.278(2)].)

The petitioner made a motion to strike the answer and each separate defense. The court overruled the motion as to the first separate defense and denied the petitioner’s application for a writ of mandamus to compel the respondents to pay him a pension during the period of time he acted as fire marshal. The court sustained the motion as to the 3rd, 4th and 5th defense, and ordered the writ of mandamus directing the respondents to pay to petitioner an increased pension of $125 per month from February 1, 1944, for the remainder of his lifetime. Both parties elected to stand on their respective pleadings, and judgment was entered accordingly. The respondents have appealed contesting the right of the petitioner to an increased pension, and the petitioner has taken a cross-appeal contesting that part of the judgment decreeing that the petitioner is not entitled to his pension while he was receiving the salary of fire marshal. It is conceded by the respondents that the payments of petitioner’s pension of $75 per month should be resumed as of the time he resigned on February 1, 1944.

It is to be observed that by the separate defenses the respondents rely on several propositions. 1. That it is against .public policy, that the petitioner receive a pension during the time he received the salary of fire marshal. 2. That the. petitioner was not legally appointed to the office of fire marshal, and having been a de facto officer only, he is not entitled to a pension as retired fire marshal. 3. That the petitioner retired as a fireman in 1937, and having separated himself from the fire department, his appointment as- fire marshal (even if such appointment was legal,) did not entitle him to an increased pension as his claim to such increase is barred by section one of the Firemen’s Pension Fund Act. The applicable portion of this section will be hereafter considered. 4.. That the petitioner’s claim to an increased pension is controlled by section 7b of Act which was enacted in 1943. This section will also be hereafter considered.

The petitioner’s .motion to strike the answer and separate defenses admitted the facts directly alleged in the answer and defenses. (Barzowski v. Highland Park State Bank, 371 Ill. 412.) The facts stated in the motion to strike are admitted by the respondents. That part of the motion which is reply to the defense that the petitioner was not legally appointed fire marshal will be first considered to determine if he was an officer, (fire marshal,) de jure or de facto.

It is stated in the motion that in a quo warranto proceeding filed by the states attorney of Peoria County on behalf of the people of the State of Illinois, entitled The People ex rel. Patrick W. Malone v. John Buchele, in the circuit court of Peoria county, a final order was entered finding that on May 16, 1943, Patrick Malone was the duly appointed, qualified and acting fire marshal of the City of Peoria. This order was rendered on December 2, 1943.

The final judgment in the quo warranto proceeding the petitioner claims estops the respondents from contesting the claim of the petitioner that he was legally appointed fire marshal, that is, an officer de jure. (See Brack v. Boyd, 211 Ill. 290.) It appears from the judgment in the quo warranto proceeding that the petition therein, was filed by Lester F. Carson, states attorney in, and for the County of Peoria, suing for the People of the State of Illinois, and in their behalf, and in the name of, and at the request of, and in relation of Patrick Malone, against one, John Buchele. “That on the. 16th day of May, 1943, the Board of Fire and.Police Commissioners of the City of Peoria, Illinois, purported to appoint the defendant, John Buchele,.to the office of Fire Marshal of the City of Peoria. ” “ That on the 16th day of May, A. D. 1943, the relator Patrick Malone was the duly appointed, qualified and acting Fire Marshal of the City of Peoria, Illinois, and that therefore no vacancy existed in the office of fire marshal to which the defendant could be legally appointed.” “It is therefore ordered and adjudged by the Court that the defendant, John Buchele, be and he is hereby ousted, excluded and prohibited from exercising the functions, privileges and prerogatives of the office of Fire Marshal of the City of Peoria, Illinois.”

Where one claims rights as an officer, by virtue of his office, he must show that he is legally entitled to act, — that is an officer de jure and as well as de facto. The title of a de facto officer cannot be inquired into in a collateral way between third parties, but it may be inquired into where he is suing in his own right as an officer. (People ex rel. Sullivan v. Weber, 86 Ill. 283.) In the case of Stott v. City of Chicago, 205 Ill. 281, page 289, it is stated: “And in People v. Tierman [30 Barb. 193], supra, it is said: Possession under color of title may well serve as a shield for defense, but it cannot, as against the public, be converted into a weapon of attack to secure the fruits of usurpation and the incidents of the office.” In People v. Hopkinson [1 Denio 574], supra, it is said: “Clearly he cannot recover fees or set up any right to property on the ground that he is an officer de facto unless he be also an officer de jure.” “An officer de jure is one who is clothed with the full legal right and title to the office, — in other words, one who has been legally elected or appointed to an office, and who has qualified himself to exercise the duties thereof according to the mode prescribed by law.” (23 Am. & Eng. Ency. of Law (2nd ed.), 327.)

The Firemen’s Pension Fund Act (ch. 24, par. 918, Ill. Rev. Stat. 1945 [Jones Ill. Stats. Ann. 100.272]) provides that the term “fireman” or “firemen” as used in the Act shall include . . . “All persons who have been or shall be hereafter appointed to any position which is classified by the civil service commission of such city, in the fire service.” The position, if assumed, that the petitioner herein was not appointed to the office of fire marshal, but was performing the duties of that office as a de facto officer, and that he was a “fireman” within the meaning of the said Act, would, in our opinion, be untenable.

The respondents have an interest which is affected by the result of the litigation in this case, and in the quo warranto proceeding on the question of the appointment of the petitioner to the office of fire marshal. (Healea v. Verne, 343 Ill. 325.) It is our opinion that the primary purpose of the quo warranto proceeding was to secure an enforcement of the private and personal grievance of the petitioner herein, Malone, that one John Buchele was claiming title to the office of fire marshal, contrary to the claim of Malone that he was the duly appointed fire marshal. (People v. Fullenwider, 329 Ill. 65.) That the judgment in the quo warranto proceeding is not binding on the respondents herein, unless it appears from the record before us that the respondents were parties to the quo warranto proceeding or in privity with parties to the proceeding in respect to the subject-matter of the quo warranto proceeding. The interest of a relator, in a proceeding to try title to office, is special and not common to the public; and the judgment is binding only on him and the defendant to the quo warranto proceeding. (Modlin v. State, 175 Ind. 511, 94 N. E. 826.) A judgment of ouster in an action in the nature of a quo warranto does not conclude one who is in no sense a party to the action, and does not take from, or in any way hold under the defeated party to the action; nor is it competent evidence against him. (People ex rel. Gilchrist v. Murray, 73 N. Y. 535; People v. Fullenwider, 329 Ill. 65; People v. Cassiday, 50 Colo. 503, 117 Pac. 357, writ of error dismissed 223 U. S. 707, 56 L. Ed. 622; State v. Broatch, 69 Neb. 687, 94 N. W. 1016, 110 Am. St. Rep. 477.)

Neither the respondents nor the City of Peoria were parties to the quo warranto proceeding when the judgment of ouster was entered. It appears from the record that on December 21, 1943, the quo warranto suit was redocketed and the City of Peoria voluntarily became a party defendant. A stipulation was entered into between the city and Malone that he should be paid $2,125 by the city, as salary due him as fire marshal from May 16, 1943, to February 1, 1944, in consideration. of his agreement to resign on February 1, 1944. That pursuant to the stipulation, a second judgment was entered requiring the city to pay Malone that amount, “in full payment and settlement of all claims of said Patrick Malone against the City of Peoria for salary as Fire Marshal of the Fire Department of the City of Peoria, or otherwise. ’ ’

By its appearance in the quo warranto proceeding, while the judgment therein, was under the control of the circuit court, the City of Peoria became a party to that proceeding and assented to the judgment therein rendered. The City of Peoria was not obligated to pay the salary of the office of fire marshal to Malone if he was not legally appointed to that office, that is, if he was a de facto officer. (Stott v. City of Chicago, 205 Ill. 281.) The City of Peoria did not appeal, nor otherwise, contest the judgment that Malone was the duly appointed fire marshal. The city acknowledged that the judgment was valid and conclusive by the stipulation to pay Malone the amount of the salary attached to the office of fire marshal during a part of the time he acted as such officer. It does not appear from the record that the appearance of the City of Peoria in the quo warranto proceeding and its acquiescence in the judgment therein rendered was not bona fide. (People v. Illinois Cent. R. Co., 298 Ill. 516.)

The firemen’s pension fund is in part maintained by taxes levied on the taxable property in the City of Peoria and a percentage of revenue collected by the city. (Sec. 1 [par. 918], Firemen’s Pension Fund Act.) The Board of Trustees of the Firemen’s Pension Fund of the City of Peoria consists of the city treasurer, clerk and controller and three active firemen of the city. The treasurer of the board is required to execute a bond to the city, and in case of a breach of the bond, suit may be brought by the city. (Sec. 9, ib.) The Board of Trustees of the Firemen’s Pension Fund of the City of Peoria is a branch of the municipal government of the City of Peoria and the trustees are officers of that city. (People v. Coffin, 282 Ill. 599, see also Lage v. City of Marshalltown, 212 Iowa 53, 235 N. W. 761.) The judgment in the quo warranto proceeding is binding on the board and the members thereof. (Ward v. Field Museum of Natural History, 241 Ill. 496; Brack v. Boyd, 211 Ill. 290.) The petitioner was legally, it is held under the record now before this court, appointed fire marshal.

The facts as they appear.from the record are that the petitioner retired as an active fireman in 1933, and thereafter became a beneficiary of the pension fund receiving a pension of $75 per month, until he was appointed first assistant fire marshal on May 7, 1935. When he resigned as first assistant fire marshal, his pension payments of $75 per month were received, and accepted by him until he became fire marshal. On May 14, 1941, he was reappointed to the fire department as fire marshal, and served as such until February 1, 1944, when he resigned and again retired from the fire department. He did not receive a pension during the time he was fire marshal. He was past 70 years of age when he was appointed fire marshal. After his last reappointment, he did not make application to the Board of Trustees of the Firemen’s Pension Fund of the City of Peoria to come under the provisions of the Firemen’s Pension Fund Act; he did not pass a medical examination to determine his general physical condition given by a physician selected by the hoard of trustees.

The contention that the petitioner, is entitled to an increased pension, turns on the question whether the-reappointment of the petitioner as an active fireman reinstated him to membership in the firemen’s pension fund, thus entitling him to a pension of one half of the salary of fire marshal after retirement. Only active firemen are entitled to membership in the fund, and the fact that petitioner was a beneficiary of the fund, as a retired fireman, adds nothing to his rights under the Pension Fund Act. (Sup v. Cervenka, 331 Ill. 459.)

It is our opinion that while appointment to the fire department is a necessary requirement, or qualification, for a fireman to be eligible to membership in the pension fund, the Firemen’s Pension Fund Act is a distinct, complete and separate Act governing the fund, and prescribing the requirements entitling a fireman to the benefits of the fund. Those requirements are independent of the regulations governing the appointment of firemen by the Board of Fire and Police Commissioners of the City of Peoria. (Stiles v. Board of Trustees of Police Pension Fund, 281 Ill. 636.)

When the petitioner retired as a fireman in April 1933, he severed his connection with the fire department. (O’Neil v. Harding, 314 Ill. 516.) He retained no right to the position of fireman and no basis remained upon which he could demand reappointment as a fireman as a matter of right or justice. On his appointment, after his resignation, he entered the fire department on the basis as a fireman who had not theretofore had any connection with the department. (Board of Trustees of Firemen’s Pension Fund v. State ex rel. Furgason, 205 Ind. 557, 187 N. E. 330.)

Section one at the time of the reappointment of the petitioner on May 14, 1941, was in part as follows: “But no person hereafter appointed in the fire department or fire service shall be considered a fireman within the provisions of this Act unless at the time of his appointment he is between the ages of 21 and 35 years, passes a medical examination to determine his general physical condition given by a physician selected by the board of trustees hereinafter provided for and also makes application to the board of trustees to come under the provisions of this Act.”

Section one of the Firemen’s Pension Fund Act restricts membership in the fund to those who at the time of appointment are between the ages of 21 and 35 years of age, who make application to the board of trustees of the fund to come under the provisions of the Act, and who pass a medical examination to determine their general physical condition given by a physician selected by the board. (Board of Trustees of Firemen’s Pension Fund v. State ex rel. Furgason, 205 Ind. 557, 187 N. E. 330.)

In the Furgason case, above cited, the relator, Furgason, brought an action in the circuit court of Morgan county, Indiana, against the Boar'd of Trustees of the Firemen’s Pension Fund of the City of Indianapolis, Indiana, to mandate the board to establish his status as a beneficiary of the fund. Furgason resigned as a member of the fire department on May 8, 1918, and became a member of the firemen’s pension fund. On May 12,1924, he was again appointed a member of the fire department. After his reappointment he made application to be reinstated in the firemen’s pension fund. The trustees of the pension fund indicated that he had been accepted to membership in the fund, and he paid his dues to the fund for May, June, July and August 1924," and received receipts therefor. He submitted to a medical examination and the medical examiner recommended that he be not accepted because his blood pressure was too high.

It appears from the contentions made by Furgason that the circuit judge was of the opinion that since Furgason was reinstated as a member of the fire department, his status was as though he had always continued as such, and that therefore having qualified and been admitted as a member of the pension fund during his original employment, he was entitled to" reinstatement therein, as though his employment had never been discontinued. The circuit court rendered judgment in favor of Furgason. The trustees of the pension fund appealed and the Supreme Court of Indiana held, that upon his resignation, Furgason completely severed his connection with the fire department, and he retained no right to the position or any of its rights, benefits, or emoluments, and no basis remained upon which reinstatement or re-employment as a matter of right or justice.

It is further held in the Furgason case that a statutory provision, “That in no event shall a pension be paid to any employee of the fire department who at the time of his appointment was over thirty-five years of age, nor to any employee who has failed to pass the medical examination,” restricts the admission to membership in the pension fund to those who at the time of appointment are not over thirty-five years of age. The court stated: “The relator does not come within this age requirement, and the fact of his prior service adds nothing to his rights. If it were otherwise, one who had served one year on the fire department, having been appointed when he was thirty-five years of age, having passed a medical examination, and who had resigned, might be re-employed after thirty years under guise of reinstatement, and eligible to membership in the fund, notwithstanding the great injustice thereby worked upon those who had been continuously members of the department and members of the fund. Such a construction would be contrary to the very purpose and intention of the provisions of the statute.” The judgment was reversed, with directions to enter judgment in favor of the trustees of the pension fund.

In 1943 the legislature amended section one of the Firemen’s Pension Act to read in part as follows: “But no person hereafter appointed or reappointed in the fire department or fire service shall be considered a fireman within the provisions of this Act, unless at the time of his first appointment therein, he was between the ages of twenty-one (21) and thirty-five (35) years, and unless after his appointment or reappointment, as the case may be, he shall make written application to the board of trustees hereinafter provided for to come under the provisions of this Act, and shall be found upon a medical examination of a duly licensed physician selected by said board of trustees to be then physically and mentally fit to perform the duties of a fireman.”

In the case of Lubezny v. Ball, 389 Ill. 263, it is stated as follows:

“In ascertaining the meaning and intent of the General Assembly in the construction of statutes, where no specific provision appears to aid such construction, recourse may be had to the language of subsequent acts of the same lawmaking body. (Lawrence v. People ex rel. Foote, 188 Ill. 407.) In United States v. Freeman, 3 Howard 556, 11 L. ed. 724, it was said: ‘If it can be gathered from a subsequent statute in pari materia, what meaning the legislature attached to the words of a former statute, they will amount to a legislative declaration of its meaning, and will govern the construction of the first statute. ’ See, also, Cannon v. Vaughn, 12 Tex. 399; 23 Am. & Eng. Ency. of Law, p. 315; Endlich on Interpretation of Statutes, secs. 43, 44, 47; Matter of Tick Wo, 68 Cal. 294.”

The circuit court erred in striking the fourth separate defense of the respondents.

When a fireman has retired, received pension payments and thereafter re-enters the active service of the fire department, he is not a retired fireman within the meaning of the Pension Act. His pension payments are properly suspended while he is in such active service and receiving the salary of an active fireman. (Stiles v. Board of Trustees of Police Pension Fund, 281 Ill. 636; McBride v. Allegheny County Retirement Board, 330 Pa. 402; People ex rel. Luthatdt v. Retirement Board of Policemen’s Annuity & Benefit Fund of Chicago, 273 Ill. App. 387.)

The trial court did not err in overruling the motion of the petitioner to strike the first separate defense of the respondents.

In 1943 the legislature enacted sec. 7b to the Firemen’s Pension Fund Act [Ill. Rev. Stat. 1945, ch. 24, par. 924b; Jones Ill. Stats. Ann. 100.278(2)]. This section is as follows: “If any fireman shall have retired or been discharged from active service and shall have to his credit twenty years of service computed as aforesaid, and shall have received any pension payments under the terms of this act after he shall become fifty years of age, and shall thereafter re-enter the active service, his pension payments shall cease during the period in which he shall be in such active service; and if he shall thereafter again retire or be discharged from active service, his monthly payments shall be resumed and be payable for the remainder of his life, but only in the same monthly amounts which he had received as a pensioner as a result of his first retirement or discharge.”

The two amendments enacted in 1943 to the Pension Fund Act should be construed together. The last clause of section 7b is to the effect, that although a pensioner, when he has retired or been discharged from active service as a fireman, (and has qualified as a member of the pension fund as required by amended section 1,) his pension shall be resumed in the same monthly amounts which he received as a pensioner as a result of his first retirement or discharge.

That part of the judgment which ordered the writ of mandamus to issues directing the respondents to pay the petitioner a pension of $125 per month for the remainder of his lifetime is reversed; that part of the decree denying the writ directing the respondents to pay the petitioner a pension of $75 per month during the time he was fire marshal is affirmed. The cause is remanded to the circuit court of Peoria county with directions to enter judgment in favor of the respondents.

Affirmed in part and 'reversed in part, and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    Stanley H. Doggett, Appellant, v. North American Life Insurance Company of Chicago et al., Appellees.
    Gen. No. 43,207.

      Opinion filed April 11, 1946.
    Additional opinion filed and rehearing denied May 17, 1946.
    Released for publication May 17, 1946.
    McCarthy, Witry, Lyon & McCarthy, of Chicago, for appellant; Emmett J. McCarthy and George R. Lyon, both of Chicago, of counsel.
    Arthur C. Rooney and Deneen A. Watson, both of Chicago, for appellees.
   Mr. Justice Scanlan

delivered the opinion of the court.

A petition for a writ of mandamus' to compel North American Life Insurance Company of Chicago, its president, E. S. Ashbrook, and its secretary, W. O. Morris, to permit the petitioner, or his agents and attorneys, to inspect and examine the list of names of the stockholders of said corporation, the record of their addresses and the number of shares of stock held by them, and to make extracts therefrom. The case was tried by the court without a jury. A judgment was entered denying the writ. Petitioner appeals.

This was the second trial of this cause. In the first trial, also tried by the court without a jury, there was a judgment order entered awarding the writ and assessing a penalty of $288.33 against each of the respondents for their failure to permit the petitioner to examine the record of shareholders for a proper purpose. Respondents appealed and we reversed the judgment order and remanded the cause for a new trial upon the sole ground that the trial court erred in excluding certain evidence offered by the respondents. (See 314 Ill. App. 193, Abstract Opinion.)

Petitioner contends that “the evidence establishes the fact that his demand to examine the list of stockholders was made for a proper purpose, that the judgment should be reversed, that a writ of mandamus should be awarded him, and that each of the defendants should be assessed the statutory penalty for refusing to let him examine the list of stockholders.” Respondents contend that the petitioner’s demand was not made for a proper purpose and the judgment should be affirmed.

Petitioner owns 1,150 shares of respondent corporation’s stock, which he acquired in 1932. In addition members of his family own 2,300 shares. All of said stock was owned for many years by the father of petitioner, who died in December, 1930. After the petitioner acquired the stock he took an active interest in the affairs of the company and attended the meetings of stockholders. He became acquainted with the officers of the company and corresponded with the company in regard to its financial and administrative affairs. All of the directors of the company were officers of it or persons on the payroll of the company. After 1932 no dividends were paid by the company. Prior to the annual meeting of the.company in January, 1937, petitioner was aptive in organizing a-stockholders’ cooperative committee and he has since served as the chairman of that committee. The petitioner contends and the proof shows that the object of the committee was “to gain some outside representation for the minority group of stockholders on the Board.” We are satisfied, after a careful examination of this record, that the present contention of respondents that petitioner’s request for a list of the stockholders was not made for a proper purpose, is an afterthought, and without merit. On September 16, 1936, petitioner wrote a letter to E. S. Ashbrook, president of the respondent company, in which he requested that the company furnish him with a “copy of stockholders” as of January, 1936. In Ashbrook’s answer to that letter, dated September 25, 1936, he stated: “On the subject of a list of our stockholders, the Company from its very inception has adhered strictly to the policy of protecting its stockholders by not passing out any information about them.” On October 28, 1939, petitioner’s attorneys addressed a letter to the respondent corporation, “Attention: E. S. Ashbrook, President,” which contained the following: “Mr. Stanley H. Doggett desires to examine the record of the present shareholders of the Company, together with the record of their addresses and the record of the number of shares held by them. He wishes at the same time to make extracts from such records and desires to obtain such information in order that he may know who are his fellow shareholders, where they reside and what their interest in the Company amounts to, so that he may discuss with them matters of common interest pertaining to the management and affairs of the Company. His examination of the records will be made solely for the purposes herein set forth.” In Ashbrook’s answer to that letter he stated: “The policy of this Company has always been to not furnish an official Stockholders’ List to any one.” The instant petition for a mandamus was filed on November 3, 1939. On November 9, 1939, a small group headed by George E. Tribble acquired stock in the company, and shortly thereafter acquired a substantial amount of stock. In December, 1939, Tribble, through his attorneys, demanded that respondent company make him an executive officer with equal voice in the management of the affairs of the company. This demand was refused by the company, and on January 10, 1940, Tribble filed a suit in which he sought to have the previous election of directors declared illegal. Ashbrook testified in the instant trial that in August, 1940, he was one of “six home office officials and executives who acquired the holdings of that group,” and that when the deal was consummated the Tribble suit was" dismissed. Ash-brook also testified that in a written report he then made to the stockholders of the company he stated: “In addition to the above, one of our stockholders with whom we have had most cordial business relations for many years demanded a complete list of the company’s stockholders with their mailing addresses, together with details as to the number of shares owned by each; when refused this list suit was filed to obtain it in November, 1939”; that the stockholder to whom he referred in the foregoing was Mr. Doggett, the petitioner; that in the said report he also stated: “Otir stockholders’ list was most earnestly requested and desired by the group to which I referred. We know that the interests of this group were detrimental not only to the interests of our stockholders as a whole but even to those of the policy holders”; that the group that he referred to in this statement was Tribble’s group and his associates; that in the said report he also stated: “While toe do not question the integrity or sincerity of the present litigant for this list we earnestly believe it to be our duty to withhold the information. This issue is pending before the Appellate Court of the State of Illinois and we, of course, shall abide by the decision of the Court.” The following then occurred: “Q. [by petitioner’s attorney] : And the stockholder whose integrity and sincerity you did not question was Mr. Doggettf A. That is correct.” (Italics ours.) It is important to note that this report to the stockholders was made sometime after the instant proceedings were commenced. We cannot avoid the conclusion that at the time this important report was made to the' stockholders that respondents believed that their established policy not to furnish a list of the stockholders to anyone was a complete .defense to the instant action; that later they learned that it was no defense, and that then the defense that petitioner’s requests of the company to furnish him with a list of the stockholders were not made for a proper purpose was formulated. The report made by Ashbrook, the president of the company, to the stockholders after the instant proceedings had been commenced is a complete answer to the defense now interposed. The argument that the present defense is not made in good faith is not without some force.

The trial court decided the instant proceeding upon an erroneous theory of the law. In his opinion, he did not question the honesty of the petitioner, but he did question petitioner’s ability to aid the respondent company if he were elected a member of the board of directors. The court stated that in his experience as a lawyer and a judge he had discovered that furnishing lists of stockholders often caused wrecking of the business. He stated emphatically that the petitioner would have to show “shenanigans somewhere along the line” before he would enter the writ. The petitioner was not obliged to show mismanagement or maladministration of the respondent corporation before he would be entitled to a writ. The instant suit is based upon Section 45 of the Business Corporation Act (Ill. Rev. Stat. 1943, chap. 32, par. 157.45 [Jones Ill. Stats. Ann. 32.045]), and the trial court’s view of the law is not in accord with that section, which provides that “any person who shall have been a shareholder of record for at least six months immediately-preceding his demand or who shall be the holder of record of at least five per cent of all the outstanding shares of a corporation, shall have the right to examine, in person, or by agent or attorney, at any reasonable time or times, for any proper purpose, its books and records of account, minutes and record of shareholders and to make extracts therefrom”; that “any officer, or agent, or a corporation which shall refuse to allow any such shareholder, or his agent or attorney, so to examine and make extracts from its books and records of account, minutes, and record of shareholders, for any proper purpose, shall be liable tp such shareholder in a penalty of ten per cent of the value of the shares owned by such shareholder, in addition to any other damages or remedy afforded him by law”; that “nothing herein contained shall impair the power of any court of competent jurisdiction, upon proof by a shareholder of proper purpose, irrespective of the period of time during which such shareholder shall have been a shareholder of record, and irrespective of the number of shares held by him, to compel by mandamus or otherwise the production for examination by such shareholder of the books and records of account, minutes, and record of shareholders of a corporation.”

In Morris v. Broadview, Inc., 385 Ill. 228, the court construed Section 45 and held that it was incumbent upon a petitioner in a proceeding brought under that section to prove good faith and a proper purpose in demanding a list of stockholders. The final statement of the court is (p. 235):

“Arbitrarily withholding a list from stockholders who are interested in protecting their investment is a practice not to be tolerated by the courts under our statute. The other extreme of exercising the right of inspection for speculative or other improper purpose is equally bad. The duty of the courts is to ascertain from the facts in each case the good faith of the respective parties and apply the remedy so as to administer justice between the parties in each case.”

Section 45 does not require that the petitioner prove mismanagement or maladministration by the respondents before he would be entitled to the writ, and the holding in the Morris case is, as we have heretofore stated, that the burden placed upon a petitioner by Section 45 is to prove good faith and a proper purpose in demanding a list of stockholders.

In Klein v. Scranton Life Ins. Co., 139 Pa. Super. 369, 11 A. (2d) 770, the plaintiffs, in their bill, sought to compel the defendants to permit them to examine the books of the corporation and to copy its list of shareholders. In passing upon a contention raised by the defendants that it was necessary for the plaintiffs to allege mismanagement or fraud to enforce the right of inspection the court held that it was not necessary for a stockholder to aver mismanagement or fraud to obtain his right to inspect the corporate records.

In Drake v. Newton Amusement Corporation, 123 N. J. L. 560, 9 A. (2d) 636, the Supreme court of New Jersey said (p. 637):

“And the common law also accords the right of inspection to a stockholder, if exercised in good faith for some purpose germane to his status or interest as a shareholder. Such inspection is justified if only for the purpose of ascertaining whether there has been proper management of the corporate affairs and business. Proof of maladministration is not a sine qua non. It is self-evident that the right is essential to the protection of the stockholder’s property interest. ” ,

In Hauser v. York Water Co., 278 Pa. 387, the petitioners alleged that they were dissatisfied with the management and believed that the best interests of the company required the election of a new board of directors and therefore they desired a list of stockholders in order to obtain proxies for use at the annual election. The court said (p. 390):

“As the list of stockholders was sought for a proper purpose, it was not necessary to aver mismanagement, or to state why plaintiffs desired a new board of directors. Indeed, such a list must be given, ‘even though [relator’s] only object is to ascertain whether the business has been properly conducted’: Hodder v. George Hogg Co., 223 Pa. 196, 198.”

In the instant case the petitioner proved that his purpose in requesting a list of the stockholders was to solicit proxies from the stockholders in order to bring about the election of outside directors. In Hohman v. Illinois-Iowa Power Co., 305 Ill. App. 17, 20, the court stated that where the purpose of the stockholder in asking for a list of the stockholders was the solicitation of proxies such purpose was a proper one. (See, also, Hauser v. York Water Co., supra.) It is a matter of common knowledge that the management of most of the well known corporations solicit proxies from the stockholders for use at the annual meetings of the stockholders held for the election of directors, the proxies to be used for the election of directors designated by the management.

Upon the. first appeal in the instant case it appeared that respondents offered to prove certain facts and that the trial court sustained petitioner’s objection to the offer. The respondents in this court contended that the evidence offered tended to prove that George E. Tribble was actuated by improper motives in starting his proceeding to have the previous election of directors declared illegal, and that there was sufficient evidence in the record to make out a prima facie showing that the petitioner and Tribble were engaged in a common purpose to obtain partial or complete control of the management of the respondent company and that therefore the evidence offered that related to the conduct of Tribble was competent against petitioner in the trial of his petition as tending to prove the purpose of the petitioner in requesting a list of the stockholders. In our opinion we stated that if the respondents proved to the satisfaction of the trial court the alleged facts set up in their offer, a writ of mandamus should not be awarded. The respondents now contend that in the instant trial they introduced evidence tending to prove the facts set up in their offer upon the first trial as to the Tribble group and that therefore the purpose of the petitioner in requesting the list is res judicata. It is a sufficient answer to this strained contention to say that the case presented upon the first trial and the case presented upon the second trial are not the same; that they differ very materially. In view of the evidence in the instant trial as to certain statements in the report made by respondent company to its stockholders after the ‘ ‘ six home office officials and executives ’ ’ acquired the holdings of the Tribble group and the Tribble suit had been dismissed, any claim that the petitioner was acting in concert with Tribble comes with poor grace from the respondents, and should be disregarded. The petitioner argues, with some force, that the fact that the respondents bought out the Trible group while he is compelled to still fight for his rights also tends to show that he was not acting in concert with the Tribble group; that the report made to the stockholders is an acknowledgment that petitioner was not a party to that group.

The record shows that a small group, owning only ten or twelve per cent of the capital stock of respondent corporation, has retained complete control of its affairs for years, and there is merit in the contention that they have retained control because they have always refused to furnish a stockholders’ list to anyone. The petitioner and the members of his family have owned a substantial amount of the stock of the company for many years. They have not held it for speculative or improper purposes. They are interested in protecting their investment. The report to the stockholders shows conclusively that respondents refused petitioner the list solely because of their established policy not to furnish a list of the stockholders to anyone.

The petitioner is not only entitled to his writ of mandamus as prayed for in his petition, but he is also entitled to have judgment entered against each of the respondents for their wrongful refusal to comply with the demand of petitioner for permission to examine the books and records of the corporation. The parties have stipulated that the value of the stock of the petitioner at the time of his demand for a list of stockholders was $2,883.30.

The judgment of the Superior court of Cook county is reversed and the cause is remanded with directions to the trial court to award the petitioner a writ of mandamus as prayed for in his petition and to also enter a penalty judgment against each of the respondents in the sum of $288.33, in accordance with the provisions of Section 45 of the Business Corporation Act (Ill. Rev. Stat. 1943, chap. 32, par. 157.45 [Jones Ill. Stats. Ann. 32.045]).

Judgment reversed and cause remanded with, directions.

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

Additional Opinion Upon Petition por Behearing.

Bespondents have filed a petition for rehearing in which they contend that “the provisions of the Business Corporation Act do not apply to an insurance corporation”; that “the provisions of the Business Corporation Act, including section 45 thereof, are not applicable to insurance corporations because of section 156 of the Business Corporation Act (Ill. Rev. Stat. 1943, Chap. 32, par. 157.156 [Jones Ill. Stats. Ann. 32.160]), which is as follows: ‘The provisions of this Act shall apply to all existing corporations, including public utility corporations, organized under any general law of this State providing for the organization of corporations for the purpose or purposes for which a corporation might be organized under this Act.’ .... An insurance corporation may not be organized under the Business Corporation Act. That Act provides that corporations for profit may be organized under it for any lawful purpose or purposes except for the purpose of banking or insurance or the operation of railroads. (Section 3, Business Corporation Act, Par. 157.3, Chap. 32, Ill. Rev. Stats. 1943 [Jones Ill. Stats. Ann. 32.003].)” The instant defense which respondents now seek to interpose was not raised in the brief they filed in this court. The following were the sole points made in respondents’ brief:

“I.
“In view of defendants’ evidence at the retrial, the Appellate Court’s decision in the original appeal on the subject of what constitutes an improper motive is final and the rule of res adjudicata must therefore be applied.
“II.
“In determining whether a shareholder’s purpose is improper, it is the duty of the Court to ascertain from the facts in each case the good faith of the respective parties and apply the remedy so as to administer justice between the parties.
“III.
“Plaintiff’s constant demands upon the Company for information and his distortion thereof in letters circularizing shareholders is a further reason for denying him the relief requested.
“IV.
“Where it is determined that a stockholder is entitled to the right to inspect, he cannot recover more than one statutory penalty regardless of the number of demands.”

The brief of respondents assumed that the decision in the cause turned upon the question of the good faith of the parties.

Respondents concluded their brief as follows:

“For the reasons given, the harassing of the Company, the continual demands made on its officers for information, the uses made -of the information so obtained in circularizing shareholders and upsetting, not only them, but the policyholders and agency force as well, and finally, the proven conspiracy existing between Tribble and the plaintiff, because of all of these things defendants ask that the judgment of the lower court be affirmed.”

Under Rule 13 of this court we would be justified in striking respondents’ petition for rehearing from the files. However, there is no merit in the defense they now seek to interpose. The right to examine corporate records given to a shareholder by Section 45 of the Business Corporation Act applies to all corporations organized for profit. It applies to insurance companies organized under another General Act.

In Venner v. Chicago City Ry. Co., 246 Ill. 170, Venner filed a petition for mandamus against the Chicago City Railway Company and its president and secretary to compel the defendants to permit him to examine the books, records and accounts of the company, which were under their control. The defendant corporation filed an answer in which it set up that it was incorporated under a special public act of the legislature, approved February 14, 1859, and that it was not subject to the provisions of Section 13 of the Corporation Act approved April 18, 1872. That section provided: “It shall be the duty of the directors or trustees of every stock corporation to cause to be kept at its principal office or place of business in this State, correct books of account of all its business, and every stockholder in such corporation shall have the right at all reasonable times, by him-self or by his attorney, to examine the records and books of account of the corporation.” This section was a part of the General Act concerning corporations for pecuniary profit, which was approved April 18, 1872, and went into force July 1, 1872. The Supreme court held that Section 13 was a proper exercise of the police power of the State and that it affected all corporations, irrespective of the Act under which they were organized. At the time of the decision in the Venner case there was a General Corporation Act which expressly excepted banking and insurance companies from the organization provisions of that Act. The opinion in the Venner case was filed June 29, 1910, and the important ruling made therein has never been overruled nor modified.

In People v. Building & Loan Ass’n, 369 Ill. 518, it was held that the police power may be exercised not only in the interest of the public health, morals, comfort and safety, but also for the promotion of the general welfare; that building and loan associations are quasi-public in character, and because of this fact the State may, in the exercise of its police power, subject them to a degree of regulation which might be unnecessary and unreasonable in the case of purely private business corporations. The opinion states (p. 526): “All grants, stipulations or restrictions as to corporations are subject to subsequent alteration by general laws enacted under the police power. (Integrity Mutual Ins. Co. v. Boys, 293 Ill. 307; Venner v. Chicago City Railway Co., 246 id. 170; Ward v. Farwell, 97 id. 593.) ”

In Babcock v. Harrsch, 310 Ill. 413, the court cites with approval the ruling in the Venner case.

In Wilson v. Mackinaw State Bank, 217 Ill. App. 494, it was contended by the bank that the right given to a stockholder to examine the records and books of account of a corporation did not apply to stockholders of a State bank organised under the Banking Act and that the right extended only to stockholders of a corporation organized under the provisions of the General Corporation Act. The Appellate court of the Third District followed the ruling in the Venner case and held that the contention of the bank was without merit.

In Maremont v. Old Colony Life Ins. Co., 189 Ill. App. 231, the court sustained the ruling of the trial court that Section 13 of the Corporation Act, approved April 18, 1872, that every stockholder in a stock corporation shall have the right at all reasonable times, by himself or by his attorney, to examine the records and books of account of the corporation, applied to a life insurance company, and the Appellate court states in its opinion that they did not see how the trial court could have ruled otherwise in view of the ruling in the Venner case.

The sole case cited by respondents is Prudential Ins. Co. v. Richman, 292 Ill. App. 261, 269, but that case does not support respondents’ position. It was there held that in respect to its organization and powers the insurance company was governed solely by the provisions of the Insurance Act and not by the General Corporation Act, but the court did not hold, indeed, it could not hold, in view of the ruling in the Venner case, that the provisions of the General Corporation Act, enacted under the police power, did not affect all corporations alike. If that ease were an authority for respondents’ position, we would, of course, disregard it.

We may state that upon the first appeal in this cause respondents did interpose the instant point, but after petitioner cited the Venner case and other decisions that were adverse to the contention of respondents, the latter clearly abandoned the contention upon the second trial, and they now seek to again interpose the contention in their petition for a rehearing.

Respondents, in their petition, reargue certain points that we passed upon in our opinion, but we find nothing in the reargument to cause us to change our judgment.

Respondents close their petition with the following statement: “Certain information, previously unknown to respondents, has unexpectedly come to their attention since the opinion of this Court was rendered. Within a few days respondents will therefore file a Motion, supported by affidavit, ashing that the cause he remanded for retrial for the purpose of hearing newly discovered evidenced’ (Italics ours.) Some days later respondents filed in this court a motion “to remand the cause to the trial court to hear newly discovered evidence concerning the ownership of the 1150 shares of the Capital Stock of the North American Life Insurance Company of Chicago, a corporation, which form the basis of this suit, and to await the outcome of the present controversy between Appellant, Stanley II. Doggett, and Maud M. Doggett, his mother. ’ ’ Attached to the motion is an affidavit of one of the attorneys for respondents, in which he states that a letter, a photostatic copy of which is attached to the affidavit as an exhibit, has been received in the home office of the respondent company, on Friday, April 19, 1946. The affidavit further states that the ownership of the 1150 shares of the capital stock of respondent company by Doggett is the basis of his right to a list of the stockholders and that Doggett can have no right to said list if he does not own said shares of stock. Exhibit 1 purports to be a letter from a law firm in New York City notifying the respondent corporation that the mother of Stanley Doggett, Maud M. Doggett, claims to be the owner of the 1150 shares of stock; that she has demanded of her son the return of the shares, and that unless he returns the certificates in the immediate future the law firm has been instructed by Mrs. Doggett to institute suit to compel the return of the certificates. Doggett filed a counter-affidavit in which he asserts that he owns the said shares of stock and that they were given to him by his mother in 1936. It is evident that this motion is not a proper one and that its plain purpose is to influence our opinion in the matter of the petition for rehearing. It is an effort to make a part of the record in this cause alleged evidence that was not introduced in the trial court. Respondents, in the trial court, did not question Doggett’s ownership of the stock. Indeed, they admitted in their answer that he was the “registered legal owner on the books of North American Life Insurance Company of Chicago of eleven hundred fifty shares of the capital stock of said Company.” If we assume that respondents are acting in good faith in making the motion, and that they are proceeding upon the assumption that we have the right, under Section 92 of the Civil Practice Act, to receive additional evidence and to consider the same in passing upon questions before us, we may state that we have no such authority. In People ex rel. Busch v. Ferro, 313 Ill. App. 202, in our additional opinion, we said (pp. 229, 230):

‘‘ The petitioner has filed a petition for rehearing in this cause. In support of the same petitioner has filed a written motion asking permission to file a certain document in the 'cause and ‘moves the court that said document be made part of the record of the above entitled cause and be considered by the court in examining the petition for rehearing.’ Attached to the motion is a photostatic copy of what appears to be a part of a sheet of paper bearing no date and upon which appear short notations made by a number of persons. The so-called document was not introduced in evidence in the trial court, but the petitioner contends that this court has authority under section 92 of the Civil Practice Act [Jones Ill. Stats. Ann. 104.092] to receive additional evidence and to consider the same in passing upon the appeal. We have no such authority. In Schmidt v. Life Assurance Society, 376 Ill. 183, 197, 198, appears the following:
“ ‘Per Curiam: A motion has been made in this case under section 92 of the Civil Practice Act (Ill. Rev. Stat. 1939, chap. 110, par. 216) to submit to this court certain original evidence hot offered in the trial court.
“ ‘This section purports to give the Supreme and Appellate Courts power to receive' evidence not produced on the trial. Except as provided by the constitution for the filing of original suits in the Supreme Court, its jurisdiction is wholly appellate. In so far as section 92 of the Civil Practice Act, supra, attempts to give the Supreme Court original jurisdiction on the appeal of a cause, of matters germane upon the trial thereof, this provision contravenes section 2 of article 6 of the constitution, which provides that the Supreme Court has appellate jurisdiction, only, in all cases except in cases relating to the revenue, mandamus and habeas corpus. The matters offered do not come within the original jurisdiction of the court. The motion is denied. ’ ”

We have this day entered an order denying the motion of respondents.

After a careful examination of the petition for rehearing and the motion filed by respondents, we have reached the conclusion that the judgment we have heretofore entered in this cause is a just and necessary one and that respondents will adhere to the policy they have always followed, not to furnish a stockholders’ list to anyone, unless the law compels them to do otherwise. The instant cause demonstrates that Section 45 of the Business Corporation Act enunciates a wholesome and necessary law.

The petition for rehearing is denied.

Petition for rehearing denied.

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


author: Mr. Presiding Justice Matchett

text:
    Edward Hayes, Appellee, v. New York Central Railroad Company, Appellant.
    Gen. No. 43,596.

      Opinion filed May 6, 1946.
    Released for publication May 27, 1946.
    Sidney C. Murray, William A. Morrow and Marvin A. Jersild, all of Chicago, for appellant.
    Edward B. Henslee, of Chicago, for appellee; Melvin L. Griffith and Walter N. Murray, both of Chicago, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This is an appeal by defendant from a judgment for $30,000 in favor of plaintiff, entered on the verdict of a jury in an action at law based on the Federal Employers ’ Liability Act (45 USCA §§ 51—59, §§22-34 Federal Boiler Inspection Act, with amendments).

The occurrence on which the action was based took place at Sheff, Indiana, February 19, 1944. The complaint, filed December 29, 1944, alleged defendant was negligent in failing to provide safe appliances with which to work, particularly “in furnishing the plaintiff with an old, worn-out locomotive on which the grate shaker apparatus would lock suddenly while being operated,” which defendant “well knew or should have known.”

Plaintiff was practically the only occurrence witness. He lived in Indianapolis and was employed by defendant as a fireman. He, with his crew, Gavigan, engineer, and Roberts, brakeman, was ordered- to make a run from Indianapolis to Kankakee, Illinois.' A later order changed the destination of the train to Sheff, Indiana. Plaintiff was on engine No. "2313 of the H-10 type. At Altamont, Indiana, they took on coal and water. While whiting for orders plaintiff says he tried to shake the grates and found them stiff. He told G-avigan the grates were “shaking hard.” Gavigan said to wait until they got to Sheff and he would help. They got to Sheff about 7 or 8 o’clock in the morning. The crew were switching, making up the train for its return trip. The engine was moving at a speed of about 3 or 4 miles an hour. Plaintiff prepared to clean the fire. He says the grate shaking apparatus was about the same on all H-10 type engines. It consisted of a shaker bar about 2% to 4 feet long and shaker arms covered with housing. He opened the housing, reached down inside and unlocked the lock that held the arm secure, and placed the shaker bar in the shaker arm. The free end of the lock was lifted up and leaned back against the frame of the engine. Most of the H-10 type engines had safety latches to prevent the worn locks from falling down. Plaintiff says defendant had not so provided for this engine.

Plaintiff, as he operated the grates, was in a standing position. His left foot was between the fireman’s seat and the brakeman’s seat, which were about a foot apart. His right foot was over the brakeman’s box seat. Plaintiff bent over, his head about even with his knees. He tried to lift up the shaker bar. He felt the grates were tight. He let the bar down to the floor, came up again as hard as he could. Plaintiff says: “When we were going down number 2 and 3 track, making three or four miles an hour, I prepared to clean my fire, and that is when I hurt my back. I got my shaker bar out, took the housing off, took the cover back, put the shaker bar on there, lifted the lock up and tried to shake it. I got in a position — you do not face the boiler but, you face the engineer when you are shaking the grates, and one foot was between the fireman’s pedestal seat, a distance of approximately about a foot and the brakeman’s seat, box seat; and the right foot was over the brakeman’s box seat. That is all the room you have there. And as I was bent away over, and I tried to lift up on the shaker bar, and I felt they were kind of tight, so I let it clear back down to the floor, and I went to come up again as hard as I could, and it just seemed like 1 hit a brick wall. I just stopped everything. I felt a tear from the end of my spine clear to the back of my head. I looked to see what caused — The lock had fell down. It was not usual and customary for that lock to fall down. As to what caused it to fall, well, it was wore out, I suppose. ’ ’ The Court: ‘ ‘ The ‘ suppose’ may be stricken.”

Plaintiff told Gavigan he had hurt his back. He did not finish cleaning the fire. Gavigan did that for him. Gavigan and Roberts did most of his work on the way back to Indianapolis. There he went to the road foreman’s office to report the accident and found it closed. Another fireman went home with him, and he went to bed. The complaint charged a fracture of the fourth lumbar vertebra of the plaintiff’s spine.

Defendant’s first contention is that the verdict is against the manifest weight of the evidence. As we have already said, plaintiff was practically the only occurrence witness. He told just how the accident happened, as above recited. He has not worked since. Plaintiff’s uncontradicted evidence showed that Gavigan, the engineer, was present when he was injured and that Gavigan and Roberts on the trip back to Indianapolis performed the services plaintiff would ordinarily perform. At the trial Gavigan and Roberts were present in the corridor of the courtroom but not called as witnesses and returned to Indianapolis without testifying. Plaintiff’s attorneys strongly argued to the jury that the failure of defendant to call rHese witnesses corroborated the version of the occurrence as given by plaintiff. Whether this was true or not it left the narration of plaintiff uncontradicted by witnesses who were available, and under the orders and directions of defendant. That this had much influence in bringing about the verdict of the jury we do not doubt.

Defendant put in other evidence for the purpose of impeaching the testimony of plaintiff. A boilermaker, who inspected the shaking apparatus before it was taken on the trip to Sheff, and another boilermaker, who inspected it soon after the return from that trip, (both employees of defendant) testified their inspection of the shaking apparatus, disclosed there was nothing wrong with it.

Goodyear, road foreman of engines for defendant at Indianapolis, and Pischner, a clerk in the office of Goodyear, testified plaintiff was asked to make out an accident report when he called at Goodyear’s office about a week after the accident, and that plaintiff replied an accident report was not necessary as there was nothing about the engine or condition of the engine that caused his injury. Pischner also said that plaintiff then told him that his doctor had advised him that he was suffering from a bad kidney condition. Goodyear gave testimony to the same effect. Plaintiff denied making these statements.

Defendant offered in evidence a written statement signed by plaintiff. • It was received in evidence by agreement, and defendant argues it tends to impeach the testimony of plaintiff. It is a typewritten statement dated March 8,1944, at Indianapolis, and marked Al, A2 and A3. It covers three typewritten pages. It is signed by plaintiff and also by his wife. At the bottom of the third page defendant wrote: “I have read this 3 page statement and it is correct to my knowledge.” The statement was written by Self, claim agent of the defendant. Plaintiff was cross-examined at length on it. He admitted some of the statements in the paper and denied others.

Near the close of the trial, Dawson, an employee of defendant, (called by plaintiff) whose job was to work at the roundhouse in Indianapolis on the cinder pit as, what he called, a “fire knocker” and shake the fire out of the railroad engine as it came off the road and get it right for the fireman in the roundhouse, was allowed to testify that on February 19, 1944, he held that job. He testified: “The bolt is worn, and it won’t hold back. The minute you come up with the shaker bar, it will either hit the back point or front point of the lug and it will drop it down on the shaker staff . . . .” On cross-examination he testified he lived in Indianapolis but was ordered “up here” by his lawyer, Mr. Murray, who was attorney for plaintiff.

The weight to be given to the evidence concerning the written statement was, we think, peculiarly for the jury. The exhibit was written by an agent of defendant. We have read these and the cross-examination and are still impressed (as we think the jury was) with the fact occurrence witnesses, apparently brought from Indianapolis, went back without being called to contradict plaintiff as to the occurrence. Testimony of plaintiff not denied by Gravigan, Roberts or Self, who drew the typewritten statement, does not commend the .defense of defendant on the facts. We have not been convinced by defendant’s able brief that we should hold this verdict and judgment to be, on the issue of liability, against the weight of the evidence. The sufficiency of the evidence was a Federal question. Brady v. Southern Ry. Co., 320 U. S. 476, 479. Under the circumstances here disclosed, this court would have no right to substitute its own conclusions for those of the jury. Tennant v. Peoria & P. U. Ry. Co., 321 U. S. 29, 32. This first contention is not sustained.

Defendant’s second point is that the damages are excessive. The amount allowed is large. Plaintiff’s earnings for the year 1943 were $2,966.66. From January 1 to February 18, 1944, he earned $625. Plaintiff testified that he endured considerable pain. His conduct just after the accident did not indicate quite as severe an injury as is now claimed. Plaintiff says: “I couldn’t say I remained on the engine after I strained my back, during all the process of making up the train and going back to Indianapolis from Sheff. I might have got down on the ground. . . . I took water, much to my sorrow.” The words “much to my sorrow” were stricken. Here we miss testimony by Gavigan or Roberts. Plaintiff was a strong man. At one time he was a prize fighter. Twice he passed successfully physical tests required by defendant of those in its service. While working for Kingen & Company he complained of having hurt his back in carrying a quarter of beef. From April 1935,’ to June 1941, while working for Kingen, he complained of 64 minor accidents.

Plaintiff’s attitude as to medical attention immediately. after the occurrence does not indicate such serious injury as is now claimed. The occurrence took place on Saturday morning. Plaintiff reached home a little after noon and went to bed. On Monday he went in a cab to see a chiropractor by whom he had been treated several times before. The chiropractor put hot towels and crushed ice on his back. He saw this chiropractor every day from February 21 until June 10 and received this hot and cold pack treatment. The chiropractor advised x-rays, which were taken but not produced at the trial. Plaintiff’s written statement indicates the chiropractor said he had “spinal distortion and congestion in the lower back.” Plaintiff saw “the old family physician,” Dr. Colloden. He says' the doctor gave him a prescription for “pain pills, ’ ’ which he filled at a drugstore. Plaintiff says: “He is a medical doctor. He didn’t give me any treatment. I went to him several times. He cut me off.”

June 12, 1944, plaintiff saw Dr. Greenspahn, who took x-rays of his hack. Dr. Greenspahn says he found the muscles in the center of the spine ‘1 spastic. ’ ’ He says the x-ray of June 12 showed the right side of the fourth lumbar vertebra narrower than the left side. This, he said, could have been a congenital condition ; it could also have been caused by trauma. The doctor, replying to a hypothetical question, said: “I cannot state with a reasonable degree of medical and surgical certainty as to just what will develop in the future.”

Plaintiff saw at many times doctors provided by the defendant company, Drs. Ensminger, Beeler, Bitchie and Oldberg, all of whom testified" in behalf of the defendant. It would serve no useful purpose for this court to discuss the evidence of the experts in detail and thus extend the opinion beyond reasonable length.

The brief of defendant, we think, summarizes well the testimony in regard to the extent of plaintiff’s injury. It says:

“It will thus be noted that four outstanding doctors found nothing wrong with plaintiff except his own complaints of pain, as against which there is Dr. Greenspahn’s statement that the narrowing of one side of the fourth lumbar vertebra might or could have been caused by trauma; and even he testified that the condition could be congenital so far as the x-ray he was then looking at was concerned. Greenspahn’s opinion was based on x-rays taken June 12, 1944, whereas defendant’s medical witnesses based their testimony not only on those x-rays but also on three other sets of x-rays, one taken three weeks after the alleged accident, one eight to nine months after that event and one almost a year after the alleged accident, and were thus able to support their opinion by the absence of anything in the later x-rays showing that there had been a healing process in the interim. Moreover Dr. G-reenspahn refused to state ‘one way or the other ’ whether the condition described in the hypothetical question was temporary or permanent.”

The courts of Illinois and Federal courts, also, hold that damages allowed may not be purely speculative. It is sufficient to cite these cases: Lauth v. Chicago Union Traction Co., 244 Ill. 244, 252, and Shelton v. Thomson, 148 F. (2d) 1. We hold that the damages allowed are excessive to an extent that would require a substantial remittitur.

However, the judgment in this case must be reversed on account of improper and prejudicial conduct of plaintiff’s attorney. The general rule is that a judgment obtained by appeals to passion and prejudice and unfair conduct of the plaintiff’s attorney will be reversed and remanded for another "trial. People v. Bimbo, 314 Ill. 449; Coal Creek Drainage S Levee Dist. v. Sanitary Dist. of Chicago, 336 Ill. 11, 45. The Federal courts enforce the rule quite strictly. In Minneapolis, St. P. & S. S. M. R. Co. v. Moquin, 283 U. S. 520, the Supreme Court of the United States said:

“In actions under the federal statute no verdict can be permitted to stand which is found to be in any degree the result of appeals to passion and prejudice. ’ ’

In New York Cent. R. Co. v. Johnson, 279 U. S. 310, 318, the same court said:

“The public interest require that the court of its own motion, as is its power and duty, protect suitors in their right to a verdict uninfluenced by the appeals of counsel to passion or prejudice.”

See also Chicago, M. & St. P. Ry. Co. v. Coogan, 271 U. S. 472.

The question here as to the liability of defendant was close. It was the duty of the trial court to see that the conduct of those taking part in the trial should be free from attempts to appeal to passion and prejudice. The court did not perform his duty in this respect.

Defendant’s exhibit No. 4, for identification, was a written statement prepared by Mr. Pischner of the defendant company. It was offered and excluded. Plaintiff’s attorney volunteered: “I have no objection. . . . Let the jury see how they make out their reports.” Later defendant again offered the exhibit, and plaintiff objected on the ground it was self-serving. He added that there were erasures and corrections on the face of it. Defendant’s attorney objected to this statement. Plaintiff’s attorney replied: “Tes, there is.” Attorney for defendant said: “Well, let the jury see it, then.” Plaintiff’s attorney answered: “. . . I will let the jury see the erasures and corrections, if you have the nerve to do it.” Defendant’s attorney: “Wait a minute, wait a minute.” Plaintiff’s attorney: “He has offered to do this. Now, who is lying?” Defendant’s attorney: “High blood pressure here.” Plaintiff’s attorney: “Yes, high blood pressure. Now, wait a minute. You are lying right in the presence of this jury.” Defendant’s attorney: “Just a moment.” The Court: “Let me see the erasures. I don’t know whether there are any.” Plaintiff’s attorney: “Yes, your Honor, they have been corrected.” The Court: “I didn’t see any.” Attorney for defendant then said: “Pardon me, your Honor, until I make my point now. Now, I object to the conduct of counsel in coming up here to the witness stand, grabbing this paper, this document, Defendant’s Exhibit 4, out of my hand and exhibiting it to one of these jurors; shouting about the question of erasures on here when he has absolutely refused to let this document go to the jury.” Attorney for plaintiff: “He says let the jury see the correction and I did.” The document was again ruled by the court to be inadmissible. It is in the record. There is apparent on the face of it minor changes, none tending to prove bad faith on defendant’s part.

In his argument to the jury, attorney for plaintiff said: “He (plaintiff) said he never told him anything of the sort. ‘The report was not made out in my presence,’ and because there is an error on minor things which might hurt, counsel tells you there were no corrections in that report, and stands in front of you and says there weren’t. I submit to you there were corrections in that report and there were erasures, minor little things, but they wouldn’t be what the man had told him, so they corrected those details. Now, I submit to you whether counsel was telling you the truth or not, when he makes that statement in your presence — well, let’s get on.”

Later in the argument defendant’s counsel referred to a statement made to Pischner. Plaintiff’s attorney interrupted: “Now, I am going to object to counsel putting up any phoney report made out by the railroad company out of the presence of this man.”

In his final argument plaintiff made this plea: “Again, a family man with three children going for a period of inore than a year, walking around with a brace on his back, running to railroad doctors whenever they called him when he didn’t have to do it . . . He is going to have with the best of circumstances to get out there to support that wife and three kids.”

In beginning his argument plaintiff’s attorney said: “You are to use your own judgment in deciding whether Edward Hayes is a faker or not. That is the crux of the situation in this case.” Later, he said: “Who called who a crook? I didn’t say they were crooks. The only one called a crook in this case is the plaintiff, Edward Hayes. . . . Look at Ed Hayes. If he looks like a crook to you and this lawsuit says he is a crook, and if this record says he is dishonest and endeavoring to put over a dishonest claim in this case, I submit' to you, I ask you to go down in the bottom of your hearts and figure out if that is the type of case this is and the type of man he is and say this man’s actions brought about this case.”

It is not necessary to consider other similar remarks by attorney for plaintiff. He states his position: “Plaintiff’s counsel had one of two choices: 1. Introduce his direct evidence showing liability and the extent of plaintiff’s injuries and sit down calmly and allow the defendant to establish by innuendo, by parading incompetent evidence before the jury, and by questionable, extra-judicial statements, the theory on which defense counsel tried the lawsuit: That there was no accident, and no injuries and that plaintiff was faking the whole case. 2. Put in his direct and positive evidence and aggressively tear that theory apart, and beat, the defendant at its own game. Plaintiff’s counsel, in the exigency of the trial, chose course number 2. That is all that happened in this case. ’ ’

Plaintiff cites Maxwell v. Durkin, 185 Ill. 546, affirming 86 Ill. App. 257. There the attorneys on both sides were said to have been guilty of unbecoming conduct for which they should have been punished, and the judgment was affirmed for the reason that the conduct of each was reprehensible. Attorney does not point out in this record conduct of the attorney for defendant similar to his own. He compares defendant’s attorney, . figuratively speaking, with ‘ ‘ Groliath advancing with shield and sword against the slim David,” who chose as a weapon “his sling and a smooth stone from the brook.” That occurrence was not in a court of justice.

A judgment obtained by conduct of the kind recited will not be allowed to stand in the courts of this State or in the Federal courts.

As the cause must be tried again, we will comment on the instructions. Defendant argues every one given for the plaintiff to be erroneous. No. 1 is not. It merely states the well known rule the preponderance of the evidence does not mean necessarily “beyond a reasonable doubt.” Instructions 2, 3 and 4 are in the language of the statute and in each the title of the statute (not a part of it) is included. We disapproved of this kind of instructions in this class of cases in Spiering v. Chicago & E. I. R. Co., 325 Ill. App. 576. Plaintiff’s instruction No. 6 is subject to criticism in that it allows recovery for “future loss of health,” “future suffering,” “future loss of earnings.” It also directs the jury to determine “the present value of the total amount of,such future loss of earnings” without stating a formula or rule by which the jury could make the computation, even if there had been evidence to support such allowance. Instruction No. 8 also tells the jury that in determining damages the jury should take into consideration “permanent disability” and “future pain and suffering.” It also directs the jury to compute “the present value of future loss of earnings” without giving any rule by which the jury could make such computation.

For these errors the judgment will be reversed and the cause remanded.

Reversed, and remanded.

O’Connor and Niemeyer, JJ., concur.


author: Mr. Justice Niemeyer

text:
    Mary Williams, Appellee, v. Pauline Matlin, Appellant.
    Gen. No. 43,555.

      Opinion filed May 6, 1946.
    Released for publication May 27, 1946.
    Braun, Brodie & Johnson, of Chicago, for appellant; Philip E. Ryan, of Chicago, of counsel.
    James J. McKenna, of Chicago, for appellee; Louis S. Griggins, of Chicago, of counsel.
   Mr. Justice Niemeyer

delivered the opinion of the court.

Defendant appeals from a judgment for $600 entered against hér in an action for personal injuries sustained by the plaintiff as a result of a collision between the automobile in which plaintiff was riding and an automobile driven by defendant.

The collision occurred in the north bound section of Lake Shore Drive, about a block south of Addison street in Chicago. At this point Lake Shore Drive is divided into north and south bound drives, separated by a parkway. Each section consists of four driving lanes. Defendant was driving north in the second lane from the east. Plaintiff’s husband was driving the automobile in which plaintiff was riding at about the same speed at which defendant was driving, and approximately 40 feet behind defendant’s car. Defendant stopped suddenly. Plaintiff’s husband immediately saw that she was stopping, and within a fraction of a second after defendant had applied her brakes he applied his brakes but his car collided with defendant’s before coming to a stop. Defendant claims that she stopped suddenly to avoid hitting a dog running across the driveway immediately in front of her car. Witnesses for plaintiff claim that they saw no dog. The questions of defendant’s negligence and plaintiff’s contributory negligence or want of due care were questions of fact to be determined by the jury. Orr v. Herzog, 327 Ill. App. 555 (Abst.).

On cross-examination of plaintiff’s husband the defendant submitted to him a statement prepared by an investigator, for the purpose of impeaching the witness. On redirect examination, in answer to a question by plaintiff’s counsel as to who wrote the statement, the witness replied that it was written by one of the men representing the Chicago Motor Club. Defendant objects that this was an improper injection of the insurance company into the case. This objection is not tenable. Here the defendant sought to take advantage of an alleged impeaching statement signed by plaintiff’s witness but prepared and obtained by an agent of the insurer. The identity of the person preparing the statement, the nature of his employment and by whom employed became material for the purpose of showing his interest, if any, in the litigation. As said in Gegan v. Kemp, 302 Mich. 218, 225, cited by defendant, in discussing a similar situation: “There can be no question but that after defendant introduced the statement prepared by the adjuster and witnessed by him, plaintiff had a right to show the circumstances under which the statement was made, who prepared it and what interest he had in it. Rosenberg v. Mageda, 251 Mich. 696; Perry v. F. Byrd, Inc., 280 Mich. 580; Herbert v. Durgis, 276 Mich. 158.” The court properly denied defendant’s motion to withdraw a juror because of the witness’s answer, but erroneously directed the jury to disregard completely the testimony of the witness as to the identity of the investigator.

Defendant contends that the court erred in receiving in evidence bills rendered by plaintiff’s physician and which she testified were paid by her, because of failure to prove the reasonableness of the bill. As said in Wicks v. Cuneo-Henneberry Co., 319 Ill. 344, 349, cited by defendant, “The payment of the bill of a physician is prima facie evidence that it is reasonable.” See also Cloyes v. Plaatje, 231 Ill. App. 183, and Byalos v. Matheson, 243 Ill. App. 60.

Objection is made that the argument of plaintiff’s counsel to the jury was improper and inflammatory, resulting in a verdict for excessive damages. Plaintiff’s counsel should not have referred to the employment by the insurer of the investigator who took the statement from plaintiff’s husband, after the court had instructed the jury to disregard the testimony on that point. As we have held this action of the court was erroneous, we do .not consider the conduct of counsel reversible error.

It is also objected that plaintiff’s counsel erroneously told the jury that plaintiff’s physician was in the armed service of the United States or he would have been in court to testify to plaintiff’s injuries. The evidence showed that the physician was in the Philippine Islands with the United States Navy at the time of the trial, and, if plaintiff had not shown his absence, defendant would have been enthusiastically demanding to know why he had not been produced. There was no error in this argument.

The court gave a stock instruction^ directing the jury, if they-found the issues for plaintiff, to find for her such sum as “in the judgment of the jury, under the instructions of the court, will be fair compensation for the damages she has sustained, if any, on account of said injuries, so far as such damages are claimed and alleged by the plaintiff in the declaration and proven by a preponderance of the evidence under the instructions of the court to have directly resulted from the accident in question.” Defendant rightly contends that the practice of referring to the complaint in an instruction, unless the jury are instructed as to what issues are raised by the complaint, has been criticized, citing Bernier v. Illinois Cent. R. Co., 296 Ill. 464. Defendant is in no position to complain of this method of instructing the jury, because in an instruction tendered by her the jury was told that plaintiff could not recover unless she proved by the preponderance of the evidence “that the defendant was guilty of negligence in the manner charged in the complaint,” without defining by any instruction the charges in the complaint as to negligence of the defendant.

Objection is made to the refusal of a stock instruction that if the jury believed “from a preponderance of the evidence that the plaintiff was injured as a result of an accident which occurred without the fault either of the plaintiff or of the defendant, or either of them, then you are instructed the plaintiff cannot recover and you should find the defendant not guilty.” We agree with the statement of the Third Division of this court in Rzeszewski v. Barth, 324 Ill. App. 345, 356, that the giving of this instruction should be discouraged. It is only when there is evidence tending to show that plaintiff was injured through accident alone, not coupled with negligence, that the giving of such instruction is permissible. Streeter v. Humrichouse, 357 Ill. 234, 244. When proper, it merely tells the jury what should be known to the man on the street. Moreover, in practically every case, as here, the jury is instructed that it should find defendant not guilty unless the plaintiff proves by the preponderance of the evidence, among other things, that the- defendant was guilty of negligence proximately and directly causing the injuries complained of.

Objection is also made to the refusal of an instruction tendered by defendant, stating in substance that if the jury found that plaintiff’s husband operated his automobile nearer to defendant’s automobile ‘1 than was reasonable and proper, having due regard to the speed of both vehicles and the traffic conditions upon the highway,” and that the proximate cause of the collision and the resulting injuries to plaintiff were due to such action, the jury should find the defendant not guilty. Defendant’s contention is that an emergency justified the sudden stopping of her car, and that the proximate cause of the collision was the negligence of plaintiff’s husband in driving his car too near to defendant’s car. There was evidence tending to support defendant’s theory. The instruction correctly stated the law, and as the case is close on the evidence it was reversible error to refuse, the instruction.

The judgment is reversed and the cause remanded.

Reversed and remanded.

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