author: Mr. Justice O’Connor

text:
    Standard Discount Company, Inc., Appellee, v. Metropolitan Life Insurance Company, Appellant.
    Gen. No. 43,107.
    Heard in the first division of this court for the first district at the June term, 1944.
    Opinion filed March 26, 1945.
    Released for publication April 11, 1945.

      Hoyne, O’Connor & Rubinkam and Eckert & Peterson, all of Chicago, for appellant; Nathaniel Rubinkam, Melvin L. Gibbard, Tom Leeming and Owen Rall, all of Chicago, of counsel.
    Victor H. Bloom, of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

June 20, 1932, defendant insurance company issued its policy on the life of Katie Smith for $90. The executor or administrator of the insured was designated as beneficiary, subject to the “Facility of Payment” clause. Afterward the beneficiary was changed, designating the daughter of the insured. The policy provided that “Any assignment or pledge of this Policy or of any of the benefits hereunder shall be void and of no effect.” Katie Smith died August 16, 1943, and her daughter, the beneficiary, made the funeral arrangements. Plaintiff was in the business of making loans to undertakers for funerals conducted by them. August 18, 1943, the beneficiary, the insured’s daughter, executed a document assigning all her right, title and interest to the undertaker and the plaintiff; afterward the undertaker assigned all his right to plaintiff and on August 19, 1943, plaintiff wrote defendant enclosing a copy of the assignment stating it was entitled to the proceeds of the policy. No payment on the policy was ever made. February 4, 1944, summary judgment was entered in plaintiff’s favor against defendant for the amount of the policy, interest and costs aggregating $94.54. Defendant appeals contending that under the provision of the policy above quoted, the assignment of the policy was void and of no effect. We delayed disposing of the appeal pending the decision by our Supreme court in Lam v. Metropolitan Life Ins. Co., 322 Ill. App. 643, where the same point was involved. Our Supreme court at the December term held that the assignment was valid. Lain v. Metropolitan Life Ins. Co., Docket No. 28415.

We have today filed an opinion in No. 43053, Standard Discount Co., Inc. v. Metropolitan Life Ins. Co. [324 Ill. App. 586 (Abst.)], where the validity of a similar assignment was involved. We held' the assign- , ment good.

After we handed down the foregoing opinion, defendant filed a petition for a rehearing on the ground that we had not passed on the last point made in its brief in which it contended that the “Facility of Payment” clause in the policy was effective' even though some persons made an assignment of their alleged interest, calling attention to the fact that we had not mentioned this point and that counsel had cited in support thereof McDaniels v. W. & S. Life Ins. Co., 332 Ill. 603, and Wickerath v. W. & S. Life Ins. Co., 310 Ill. App. 266. The policy provides “Any assignment or pledge of this Policy or of any benefits hereunder shall be void and of no effect.” We have had a number of cases in the last year or two where defendant contended that this provision of the policy made any assignment void. And as stated, we delayed deciding the case pending a decision of the Supreme court which involved the same provision and which case we have above cited. We allowed a rehearing for the reason that we did not pass on counsel’s last point as above stated.

The policy, dated June 20, 1932, is known as an industrial policy, issued by defendant to Katie Smith. The amount of the policy is $90. Katie Smith died August 16, 1943, and, as stated by counsel for defendant: “Plaintiff was in the business of making loans to undertakers for funerals conducted by them. On August 18, 1943, Nettie Johnson executed a document ,. . . which purported to assign all her right, title and interest in and to the above mentioned policy to Beverly W. Schweich (the undertaker) and the plaintiff. Thereafter the undertaker assigned all of his right, title and interest and claim in the assignment, executed by Nettie Johnson, to the plaintiff. . . .

“The proceeds of the policy were not paid to Nettie Johnson or anyone else.”

In its pleadings “defendant states that Nettie Johnson was designated as beneficiary in said policy to receive the death benefit only.” And on November 29, 1939, the following was stamped on the policy: “Subject to the provisions of the policy authorizing payment to the executor or administrator of the insured, or at the company’s option to other persons.” Following this there appears in longhand “Nettie Johnson — Daughter.” “Has been designated beneficiary to receive death benefit only. ’ ’

By the terms of the policy the company agreed, subject to certain conditions, “to- pay as an endowment on the anniversary on this Policy next if the Insured shall have passed the age of seventy-nine years,” etc. the amounts stipulated, and it further provided that if the insured died before reaching the age of 79 years, to pay the stipulated sum “to the executor or administrator of the Insured, unless payment be made under the provisions of the next succeeding paragraph.

“The Company may make any payment ... to the Insured, husband or wife, or any relative by blood or connection by marriage of the Insured, or to any other person appearing to said Company to be equitably entitled to the same by reason of having incurred expense on behalf of the Insured, or for his or her burial.”

In McDaniels v. W. & S. Life Ins. Co., 332 Ill. 603, the insurance company issued an industrial policy on the life of Dora McDaniels, Sr., plaintiff’s aunt, for $165. Plaintiff had judgment in the Circuit court of St. Clair county for the amount of her claim which the Appellate court affirmed but on certiorari the judgment was reversed. Plaintiff, the niece of the insured, “paid all insurance premiums from July 6, 1925, the date of issue, to August 31, 1925, the date of the death of the insured. On August 1, 1925, the following rider, on a form provided by the insurance company, was signed by the insured and attached to the policy: ‘The undersigned, insured under policy No. 6,112,228 in the above company, hereby authorizes the said company to pay the amount of insurance due under said policy to Dora McDaniels, my niece. It is agreed that this authorization is not to vary in any way or alter the terms and conditions contained in said policy, especially the “facility of payment” provision therein. ’ ”

It will be noted that the rider from which we have above quoted, signed by the insured, merely authorizes the company to pay the amount of insurance to the niece of the insured, while in the case at bar, Nettie Johnson, the daughter of the insured, is the “designated beneficiary, to receive death benefit only.”

In the Wickerath case, 310 Ill. App. 266 (abst.), the insurance company issued its policy on the life of John A. Unhoch for $500. Suit was brought by Elizabeth Wickerath, also known as Elizabeth Unhoch. The policy provided that upon proof of death of the insured, the company would pay “to the executors or administrators of the Insured, unless payment be made under the next succeeding provision.

“Facility oe Payment

“The company may make any payment or allow any benefit provided for in this policy to any relative by blood or connection by marriage.of the Insured, or to any person appearing to the Company to be equitably entitled thereto.” Stamped on the back of the policy is the following: “Name of person to whom payment of death benefit is requested subject to all the terms and conditions of the policy. Name Elisabeth Unhoch. Relationship Wife.” It will be noted that the endorsement does not name Elizabeth Unhoch as the beneficiary but only a person to whom payment may be made, while in the case at bar, Nettie Johnson is specifically named as the beneficiary.

In Bishop v. Prudential Ins. Co., 217 Ill. App. 112, in discussing a “facility of payment” clause similar to the clause in the policy before us, the court said that the purpose of the clause was “prompt payment of the benefit is usually provided for after the receipt of satisfactory proofs of the death by the insurer; and that the purpose of such a clause is the protection of the insurer in making a prompt payment without the expense of administrative proceedings. (Thomas v. Prudential Ins. Co., 148 Pa. St. 594, 598; Wokal v. Belsky, 53 N. Y. App. Div. 167, 65 N. Y. Supp. 815.” And continuing the court quoted from the Thomas case: “The manifest object of the second' schedule of the policy . . . [facility of payment] was to enable the company, in case of the death of the assured, to pay the amount of the policy without the expense of an administration. The sum of $60 [the amount claimed under the policy], if it could be paid only by raising up a legal administration, would be of little use to any one, as nearly the whole of it would be absorbed in fees and expenses.”

The Wokal case (65 N. Y. Supp. 815) above referred to, was an action brought by the administrator on two policies of insurance issued to John Wokal upon his life by the Metropolitan Life Insurance Company. Defendant Belsky was alleged to be an adverse claimant. The policy there provided that in case of the death of the insured the defendant insurance company might pay the amount under the policy “to any relative by blood or connection by marriage of said John Wokal or to any other person appearing to the defendant corporation to be equitably entitled to the same by reason of having incurred expense on behalf of the insured or for his burial.” In considering this provision the court said: “the right granted is distinctly an option to be exercised under certain conditions, but not to be used to defeat the purposes of the insurance; it being a general rule that an obligation of an insurance company cannot fail for want of a particular payee. Walsh v. Insurance Co., 133 N. Y. 408, 31 N. E. 228. The defendant must, by the terms of the policy, pay the amount of it to such person as has become entitled to it by reason of having incurred expense on behalf of the insured, or for his burial. The plaintiff, the administrator of the estate of John Wokal, alleges in his complaint that he has actually paid the expenses of Wokal’s burial; and therefore not only is he entitled to recover as administrator, if the corporation has not paid some one else, but he is also entitled to recover as a person equitably entitled under the terms of the policy. Apart, however, from authorities, it is evident from the wording of this clause in the policy that no particular beneficiary was designated, and therefore no one, upon the death of the insured, became entitled individually to enforce payment against the company, except to the extent that he might have paid debts or funeral expenses .....Such a clause in a policy is inserted for the protection of the company, to enable it, in industrial policies, where, as here, the amount payable is small, to discharge its obligation by payment to any one of the classes designated, without requiring administration ; but it is not intended to relieve the company from payment to some one.” (Emphasis ours.) In that case the policy provided that the company might' pay the amount due to any person appearing to it to be equitably entitled to the money by reason of having incurred burial expenses of the insured, and in construing this provision the court said: “The defendant must, by the terms of the policy, pay the amount of it to such person as has become entitled to it by reason of having incurred expense on behalf of the insured, or for his burial. ’ ’ Plaintiff in that case alleged he had actually paid the expense of Wokal’s burial and therefore he, as administrator, was not only entitled to recover but that he personally “is also entitled to recover as a person equitably entitled under the terms of the policy.”

In the instant case the policy in specifying those to whom payment may he made by the insurance company includes “any other person appearing to said Company to be equitably entitled to the same by reason of having incurred expense on behalf of the Insured, pr for his or her burial.” It is admitted that Nettie Johnson, the daughter of the insured, arranged with the undertaker for the burial of her mother, assigned her interest in the policy to the undertaker and to plaintiff. Defendant has paid no one any part of the money admittedly due, and it does not say in its pleading or otherwise that any other person is entitled or claims to be entitled to the $90. In these circumstances it is clear that plaintiff is equitably entitled to the $90. The law creates an obligation on defendant for reasons of justice to pay it. Restatement of the Law of Contracts, ch. 1, § 5, somewhat akin to the common-law action of assumpsit.

If defendant’s position in this case is to be sustained, it is a misnomer .to refer to the provision in the policy as the “Facility of Payment” clause. It might be more appropriately designated as a provision to prevent payment. And we think what we have just said would be equally applicable if we refer to the transaction as industrial insurance for the reason that if no one could recover the $90 except the administrator, who might be appointed by the Probate court of Cook county, the cost of administration would eat up the $90. And as stated in 217 Ill. App. 112, the purpose of such insurance “is the protection of the insurer in making a prompt payment without the expense of administrative proceedings.”

The judgment of the Municipal court of Chicago is affirmed.

Judgment affirmed.

Matchett, J., concurs.

Niemeyer, P. J., dissents.

The court makes a new contract for the parties.

The policy provides that on death of the insured the company agrees to pay the amount due to the executor or administrator of the insured, unless payment be made under the provisions of the next succeeding paragraph, generally called a Facility of Payment Clause, and common to industrial policies, reciting that “The Company may make any payment I . . provided herein to the Insured, husband or wife, or any relative by blood or connection by marriage of the Insured, or to any other person appearing to said Company to be equitably entitled to the same by reason of having incurred expense on behalf of the Insured, or for his or her burial . . . .” The courts of Illinois have uniformly held that this clause is for the benefit of the insurer; that its payment to, or selection in good faith of, a person within the provisions of the Facility of Payment Clause is conclusive, and that in the absence of such payment to or selection of a beneficiary, right of action on the policy is in the executor or administrator. McDaniels v. Western & Southern Life Ins. Co., 332 Ill. 603; Morticians’ Acceptance Co. v. Metropolitan Life Ins. Co., 321 Ill. App. 277; Wickerath v. Western & Southern Life Ins. Co., 310 Ill. App. 266 (abst.); Voris v. Rutledge, 297 Ill. App. 383; Pioneer Trust & Sav. Bank v. Metropolitan Life Ins. Co., 278 Ill. App. 113; Bishop v. Prudential Ins. Co. of America, 217 Ill. App. 112. The right of the company to select the payee is not impaired by the endorsement on the policy that, “Subject to the provisions of the Policy authorizing payment to the executor or administrator of the Insured, or at the Company’s option to other persons, Nettie Johnson — Daughter, has been designated beneficiary, to receive death benefit only.” The rights of Nettie Johnson, as beneficiary, are expressly made subordinate or subject to the rights of the company to make payment under the Facility of Payment Clause. By the endorsement she was named as one to whom the company might make payment, but she did not become the only person to whom payment could be made. A similar situation was before the court in the McDaniels case, supra. In that case an industrial policy with substantially the same Facility of Payment Clause as in the instant case, had a rider attached reciting that the insured ‘1 authorizes the said company to pay the amount of insurance due under said policy to Dora McDaniels, my niece. It is agreed that this authorization is not to vary in any way or alter the terms and conditions contained in said policy, especially the ‘facility of payment’ provision therein.” The court said (607): “The authorization, as a part thereof, provided that it should not vary or in any way alter the terms and conditions contained in the facility of payment clause. If it did not vary the terms of that clause then the option to pay anyone coming within the provisions of such clause, other than the defendant in error, still remains in the contract. The defendant in error has no right to sue unless she is the beneficiary and entitled to the fund. The fact that she was by the rider included among those to whom the insurer might pay the fund does not give her that right in the absence of the exercise in her behalf of the option resting in the company.......she did not by the rider become the only person to whom the company could, under the contract, pay the fund. ” In Lain v. Metropolitan Life Ins. Co., 388 Ill. 576, in speaking of the rider in the McDaniels case, the court said (579): “In the McDaniels case . . . the purported transfer was made subject to the right of the insurance company to exercise the options conferred in the ‘Facility of Payment’ clause,” thereby giving the rider the same effect as the endorsement in the present case, which expressly made the designation of Nettie Johnson, as beneficiary, subject to the provisions of the policy authorizing payment to the executor or administrator of the insured, or, at the company’s option, to other persons. In the McDaniels case, as in the present case, the right of the company to select, under the Facility of Payment Clause, the person to whom payment should be made, was expressly preserved, and the attempt in the opinion of the court to distinguish the two cases fails.

The Wickerath case, 310 Ill. App. 266, decided by this court, followed the McDaniels case. An attempt is now made to distinguish it from the present case, because the person named in the endorsement in the Wickerath case was not designated “as the beneficiary but only a person to whom payment may be made.” However, in that case the request for the payment to the wife was made subject “to all terms and conditions of the .policy,” which included a Facility of Payment Clause substantially identical with the one before us, and the rights of the respective persons, by whatever name they are called, to whom the insured in each policy sought to have payment made were subject to the same condition, namely, the right of the company to select a beneficiary. If anything the present case is stronger than the Wickerath case. In that case the preservation of the company’s right to select the payee was general. Here the reservation of the company’s option to pay other persons than Nettie Johnson is specific.

In discussing Bishop v. Prudential Ins. Co., 217 Ill. App. 112, the court refers to and quotes from Wokal v. Belsky, 65 N. Y. S. 815, cited in the Bishop case. In so far as that case holds that a person paying the funeral expenses may sue “as a person equitably entitled under the terms of the policy,” it is in direct conflict with the decisions of our courts, and it ignores the plain, unambiguous language of the Facility of Payment Clause, which makes the insurer, and not a third person or the courts, the judge of the person equitably entitled to receive payment under the terms of the policy. It is also in conflict with the leading case of Thomas v. Prudential Ins. Co., 148 Pa. 594, cited in the McDaniels case, and also cited and quoted from in the Bishop case, and by the court in this case. In the Thomas case the court, as quoted in the Bishop case (p. 119), said: “It is for the company to judge who is the person to he equitably entitled to the money. This discretion is vested in it by the contract between the parties. The contract itself does not offend against any rule of law or public policy, and we cannot hold that the administrator is entitled to recover without making a new contract for the parties.” In that case the party to whom the company made payment had advanced only $8 for funeral expenses. In Voris v. Rutledge, 297 Ill. App. 383, the court cited the Bishop case as holding “. . . that where an insurer fails to exercise the option as to the person to whom it will pay, given it by the facility of payment clause in an industrial insurance policy payable to the executor or administrator, recovery may be had at the suit of the executor or administrator,” and said (387): “This is sound in law and in logic. A party who is in a position to receive the bounty if the insurer elects to pay it to him cannot compel the making of a new contract. Contracts are determined in pursuance of the positions and rights of the parties thereto. An outsider, in the absence of fraud, may not oust one party to a contract and place himself in that party’s place.” In the Bishop case it appears that the administrator who brought suit on the policy was appointed at the instance of creditors of the deceased, who had claims against his estate for medical and hospital services and for funeral expenses, and that the claim on the policy was the only asset of the estate. The judgment in the trial court for the administrator was reversed, it appearing that the company had exercised its option to pay another person whom it considered equitably entitled to the money.

In the instant case the court seeks to justify the selection of Nettie Johnson and her assignee as the person equitably entitled to the amount due by saying that “Defendant has paid no one any part of the money admittedly due, and it does not say in its pleading or otherwise that any other person is entitled or claiming to be entitled to the $90. Plaintiff’s right, if any, to recover depends upon its title, and the burden of establishing that title rests wholly upon the plaintiff. There is no obligation on the defendant to show that someone other than the plaintiff has a stronger claim in law or equity. When defendant denied the plaintiff’s right to sue and asserted its (defendant’s) right to select the beneficiary under the Facility of Payment Clause, it did all that the law required of it. Anything further would have been the pleading of immaterial matter and a needless confusion and extension of the issues in the case. Furthermore, upon the record before us, defendant is not in a position to make payment under the policy until this litigation is ended. The insured died August 18, 1943; on the same day Nettie Johnson delivered the policy, with an assignment of its proceeds, to plaintiff, who immediately made demand on defendant for payment; on September 1, 1943, plaintiff’s claim was rejected, and suit was started' October 7th following. It would have been exceedingly poor business to have made payment to anyone after the suit was instituted, and a delay of five weeks to ascertain whether suit would be started is not unreasonable, particularly when, as in the present case, the number of prior actions against the defendant on similar assignments, as shown by the records of this court, was notice that this suit would in all likelihood be brought. Defendant should not be criticized for making its defense to plaintiff’s action. For all we know, or, are at present entitled to know, it may be that an estate of the insured is now being administered in the courts, or, that other relatives or even friends of the insured have paid out greater sums than the $90 here involved, for medical and hospital expenses of the insured in her last illness under circumstances which, if disclosed, would lead this court, if vested with the power, to determine that they, rather than Nettie Johnson or her assignee, were equitably entitled to the amount due under the policy. It may also be the fact that" the insurer has already determined the person to whom the money should be paid, and is only awaiting the termination of this litigation. The great number of similar policies written by the defendant require, in the interest of the policy holders as well as of itself, that the rights and liabilities under these policies be definitely fixed by the courts; for if, as held in the opinion of the court, third persons may by independent action make themselves beneficiaries against the will of the insurer, or the courts may substitute themselves for the insurer in determining the person equitably entitled thereto, the business of the defendant, in the chaos resulting, would become extremely hazardous, and the purpose of the clause, as stated in the McDaniels case (606), “To protect the insurance company, with the consent of the insured, against trifling but expensive litigation which might constantly occur over disputes as to parties entitled to the amount of the insurance,” is defeated.


source: Caselaw Access Project

license: Public Domain

text:
    Ellen Anderson, Appellee, v. Walter J. Cummings, Receiver, etc., et al., Trading as Chicago Surface Lines, Appellants.
    Gen. No. 43,222.

      Heard in the first division of this court for the first district at the October term, 1944.
    Opinion filed March 26, 1945.
    Rehearing denied April 11, 1945. Released for publication April 11, 1945.
    Frank L. Kriete, Charles C. Cunningham and Arthur J. Donovan, all of Chicago, for appellants; William J. Flaherty, of Chicago, of counsel.
    Joseph Barbera, of Chicago, for appellee.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendants to recover damages for personal injuries claimed to have been sustained by her as a result of being struck by a northbound street car in Wentworth avenue and 5,4th street. There was a verdict and judgment in plaintiff’s favor for $7,000 and defendants appeal.

Defendants operate two lines of street cars in Went-worth avenue, which runs north and south. Fifty-fourth street runs east from Wentworth avenue but does not extend west of it. Plaintiff, a housewife about 63 years of age, lived at 5411 South Wells street, which is one block west of Wentworth avenue. March 3,1942, about 9:30 a. m. plaintiff left her home, walked east between two buildings about 50 feet south of 54th street to take a northbound street car in Wentworth avenue. She testified that when she reached the sidewalk on the west side of Wentworth avenue she walked north to the cross-walk on the south side of 54th street and that she saw a northbound street car at Garfield Boulevard or 55th street; that she looked to see “if everything was all right so I could get over.” That she started east across Wentworth Avenue and when she reached the middle of the street she raised her right hand signaling the street car to stop. That the car was then about 150 feet from her; that as she was at about the east rail of the northbound track the street car struck her- and she was thrown and injured.

Henry Cooper, called by plaintiff, testified that he lived at 5343 Wentworth avenue; that he owned a cab which he had driven about 8 years. The cab was parked at the east side of Wentworth avenue about 100 feet north of 54th street facing north; that 54th street was a regular corner where northbound street cars stopped; that -he saw the accident; the streets were dry and the day clear; that he was sitting on the rear bumper of his cab facing south waiting for his son to bring a box of Simonize which he was going to nse on the cab; that he saw Mrs. Anderson on the west side of Wentworth avenue at 54th street; that she stood there' about two seconds before starting to cross Wentworth avenue and when she got between the two street car tracks she raised her hand; that the street car did not stop; it hit her about the time she got on the east rail of the northbound track. There was not any other traffic in the street at the time. That when Mrs. Anderson started across the street he saw the northbound street car standing at the north side of 55th street taking on passengers. That 'when Mrs. Anderson raised her hand to signal the motorman she was about 150 feet from the ear, which was coming at about 25 miles an hour; that after Mrs. Anderson was struck the street car ran about 50 feet before it was stopped; that she was lying on the street at about the east center door of the street car; that he did not hear the sound of any gong or warning of any kind; that he ran back and Mrs. Anderson was unconscious.

On cross-examination he testified that on March 21 he had given a statement to an investigator for the street car company, which is in the record and is signed by him, in which he stated he was standing on the sidewalk in front of 5343 South Wentworth avenue which was about 150 feet from the accident; that Mrs. Anderson “was crossing over on the south cross-walk of 54th street.” That the street car was about 50 feet from plaintiff when she stepped in front of it; that when the car stopped the front end was at the northeast corner of the intersection.

Two police officers, called by defendants, testified that a few minutes after the accident, and while Mrs. Anderson was still lying in the street, they drove up in the patrol wagon, having been called, and that Mrs. Anderson was lying about opposite the middle door of the street car about 40 or 50 feet south of 54th street.

Mr. and Mrs. Miller were passengers on the street car, sitting in the second seat from the front on the left side. He testified that he saw the accident; that he was talking to his wife, felt the car slow up and saw a woman crossing in front of the street car; that he didn’t remember seeing any southbound traffic; that the accident happened about 50 or 60 feet south of 54th street. That after the collision the car went about 20 or 25 feet before it stopped; that his best recollection was that the front end of the street car, when it stopped, was about 30 feet from 54th street.

Mrs. Miller testified that she saw the accident; she was sitting nearest to the window on the second seat from the front with her husband; that she saw a truck going south in Wentworth avenue “and then I saw a woman run out from — just, you know, flashed in front, back of the truck in front of the street car. She was running at rather a fast pace and darted out from behind that truck and right in the pathway of the car. The motorman of the car put on the brakes or the stopping business, whatever it is, . ... The bell was ringing as soon as he saw- it. The lady was traveling in kind of a little trot or pace. I saw the lady when she went in front of the street car,” about 10 or 12 feet in front of the car. That after the car stopped plaintiff was lying by the car door on the right side about the center of the car; about 50 or 60 feet south of 54th street.

The conductor of the street car testified that he had been connected with the street car company for about 7 years; that passengers entered by the front door of the car and he was standing at about the center of the car near the exit on the east side; that Philip Jolly was the motorman and had been a motorman for about 14 years. That he died about a year ago; that the accident happened about 70 or 75 feet south of 54th street. The car had stopped at 55th street, then proceeded north and when they were 70 feet south of 54th street, plaintiff came out from behind a southbound truck; that when he saw her come out from behind the truck the street car was about 15 feet away; that the motorman rang his gong; applied the brakes and pulled the car in reverse; that when the front end of the car came to a stop after the accident, it was about 60 feet south of the south cross-walk of 54th street, and Mrs. Anderson was lying about opposite the middle door of the car.

Plaintiff’s theory of the case is that she was crossing Wentworth avenue from west to east on the south cross-walk and that when she started, she saw a northbound street car; that when she reached the middle of the street it was about 150 feet from her, coming fast. That she raised her right hand for the car to stop; that it looked as if it slowed down and she continued to walk east and was struck by the right front corner of the street car.

Defendants’ theory is that the street car was going north at a speed of 10 to 15 miles an hour; that plaintiff was crossing the street about 50 to 70 feet south of the south cross-walk and came from behind a southbound truck and was about 5 to 15 feet from the street car when the motorman sounded his gong and applied his brakes and reversed; that plaintiff was struck by the right front corner of the street car and when it stopped she was lying near the center door of the car about 40 or 50 feet south of the cross-walk.

Counsel for defendants contend that the court erred in refusing to direct a verdict, as requested by them, at the close of all the evidence and in refusing to enter judgment notwithstanding the verdict. In support of this they say that all the evidence, viewed most favorably for plaintiff, shows that she was guilty of contributory negligence as a matter of law. If, upon a consideration of all the evidence in the record, including the verdict of the jury in plaintiff’s favor, approved as it was by the trial judge, we could say that all reasonable minds would reach the conclusion as contended for by counsel, the court should have directed a verdict and having failed to do so, he should have afterwards sustained defendants’ motion for judgment notwithstanding the verdict. Kelly v. Chicago City Ry. Co., 283 Ill. 640. But, upon a careful consideration of all the evidence, the verdict of the jury, and its approval by the trial judge, we are unable to say that all reasonable minds would agree that plaintiff was guilty of contributory negligence. In these circumstances, the overruling of the motions for a directed verdict and for judgment notwithstanding the verdict cannot be disturbed.

Counsel for defendants further contend that in any event the judgment should be reversed and the cause remanded for the reason that the verdict in plaintiff’s favor is against the manifest weight of the evidence. And further that the court improperly instructed the jury. We have above set forth the substance of the evidence and think the overwhelming-weight of it is that plaintiff was crossing Wentworth avenue from 40 to 50 feet south of the south cross-walk. This we think is shown by the physical facts, as testified to by the police officers and other disinterested witnesses, as to where they found Mrs. Anderson after she was struck. But even if it were established that plaintiff was crossing the street 40 or 50 feet south of the south cross-walk, this would not necessarily defeat her cause of action but would be an element to be considered by the jury in determining the negligence, or lack of negligence, of plaintiff and of the motorman.

Defendants further contend that the court erred in giving plaintiff’s instructions 11 and 13. By instruction 11 the court told the jury what was charged in the complaint, one of which was that the street car was being operated “without sounding any bell or gong- and otherwise without giving any warning of its presence, movement ór approach,” that if they believed plaintiff had proven by a preponderance of the evidence any one or more of the charges made in the complaint and they found the street car was operated negligently, as a result of which plaintiff was injured, then their verdict should be for the plaintiff. Obviously there was no need to sound a gong to warn plaintiff of the approach of the car because she says it was in plain view of her from the time it started from 55th street until she was struck. Pienta v. Chicago City Ry. Co., 284 Ill. 246; Loftus v. Chicago Rys. Co., 293 Ill. 475. But if plaintiff thought that the car was going to stop after she signaled it with her right hand and the motorman did not intend to stop, it wpuld be some warning to her if he sounded his gong indicating that the car was not going to stop. The evidence was conflicting as to whether the gong was sounded, plaintiff’s witnesses indicating that it was not, and some of the defendants’ witnesses testifying to the contrary. We think the instruction did not clearly present the issue to the jury on this point, but we are further of opinion that the giving of it was not reversibly erroneous since the issues were simple and easily understood by the jury.

Instruction 13 told the jury that “it is the duty of the operator of a street car on a public highway to exercise reasonable care and caution in the operation and control of the street car, so as not to injure any person who in the exercise of ordinary care, is crossing the street. ’ ’ The objection made by counsel to this instruction is that “the jury were told in effect that the care and caution required of the operator of the street car was such care and caution as would prevent or avoid injury to persons crossing the street.” We think this objection is not warranted by the wording of the instruction. It concludes that the person in charge of the street car must so operate it as not “to injure any person who in the exercise of ordinary care, is crossing the street.” We think however, the instruction is apt to be somewhat misleading. All that was required of the operator of the street car was to exercise reasonable care and caution in the operation and control of the street car. The rest of the instruction should' have been eliminated. However, since we have reached the conclusion that the verdict is against the manifest weight of the evidence, the -objection can be obviated on a retrial of the case.

Since there must be a retrial we do not discuss defendants’ contention that the damages awarded are excessive.

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

Reversed and remanded.

Niemeyer, P. J., and Hatchett, J., concur.


text:
    Mary Trzaska and Al Chodzko, Appellees, v. John Edward Bigane, Jr. and Joseph Francis Bigane, Trading as John Bigane and Sons, Appellants.
    Gen. No. 43,274.

      Heard in the first division of this court for the first district at the December term, 1944.
    Opinion filed March 26, 1945.
    Released for publication April 11, 1945.

      Burt A. Crowe, of Chicago, for appellants.
    Shavin & Hamilton and L. L. Silverman, all of Chicago, for appellees.
   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiffs brought an action against John Edward Bigane, Jr., Joseph Francis Bigane, copartners doing business as John Bigane & Sons, and John Buchunas, to recover damages for personal injuries sustained by them as a result of a collision between a southbound automobile in which plaintiffs were riding and an automobile truck driven west in 33rd Place by defendant Buchunas. Plaintiffs claimed that the truck was being operated for and on behalf of the Biganes. The jury returned tfieir verdict finding the.three defendants guilty arid assessing Mary Trzaska’s damages at $1,500 and $1,000 in,favor of Al Chodzko. Judgment was entered on the verdict and the Biganes prosecute this appeal.

An interrogatory was submitted to the jury as to whether John Buchunas, the driver of the truck was acting as the agent or servant of the Biganes at the time of the accident. The answer was in the affirmative.

Counsel for the Bigane Brothers says that on this appeal “one question only is presented for determination; that is, is there any evidence in the record fairly tending to show that Buchunas was the servant or agent of the defendant, Bigane Brothers, or does the proof establish that Buchunas was an independent contractor 1” And counsel for plaintiffs agree that this is the sole question before us.

The record discloses that the Bigane Brothers operated a coal business at 3596 Archer avenue, Chicago, selling coal at retail to dealers and consumers. They owned their own trucks and employed drivers of them in handling their coal. They also at times employed the owners and drivers of other trucks, one of whom was defendant, Buchunas. May 8,1943, Buchunas had called at the coal yard and delivered a load of coal, as ordered by Bigane Brothers, to one of their customers and after the delivery was returning to the coal yard for another load, driving west in 33rd Place when there was a collision between the truck and the automobile which was being driven south in Wood street by plaintiff, Al Chodzko (who was accompanied by Mary Trzaska) as a result of which plaintiffs were injured.

Joseph Bigane, called by plaintiffs as an adverse witness, testified that he had been engaged in the coal business in the name of John Bigane & Sons since 1907; that he had known Buchunas for 20 years; that Buchunas was termed a dealer — that he would come in and buy coal from me and deliver it to your home and at times he would deliver coal for us. “He had our sign on the truck. That is a City ordinance.” That on the morning of the accident he came over to the coal yard and our representative told him to deliver a load of coal to a certain address. That he did not report every morning; that he collects money if it is a C..O. D. order, “or if they want to pay on a charge account,” and turns the money over to us. Our bill-head is given to him and the charge for the coal is written on it. That we would hire Buchunas at any time we need other equipment than our own. That they had 7 trucks of their own which did most of the hauling; that the men who drive these trucks have the same billheads as Buchunas; that we have no control over him — he is independent. The witness was then examined by his counsel and testified that they never paid any salary or wages to Buchunas; that they did not own or operate the truck Buchunas used; did not purchase the license plates for it, nor pay taxes on his salary nor any social security tax on what Buchulias received; that Buchunas had no set hours for handling the coal — he could come or go as he pleased. He was paid so much per ton, the amount varied according to whether it was a “dump” job or bag carrying*, shoveling, etc. When Buchunas got a load of coal they would give him the address where he was to deliver it. If it was to be on credit he brought back a receipt and left one with the customer; that Buchunas was free to take a load or not as he pleased.

Defendant, John Buchunas, called by plaintiffs as an adverse witness, testified that he was 52 years old, owned a truck which would carry a ton and a half of coal; that at the time of the accident the truck was empty and he was returning to defendants’ coal yard after delivering a load of coal; that he reported at the yard about 7:30 o ’clock on the morning in question; that he had been handling coal for the Bigane Coal Company for about 20 years; that when he got to the yard that morning he was told by defendant, John Bigane, to deliver a load of coal to one of their customers. That in delivering the load it was loose coal and he dumped it on the street; sometimes he delivered coal in bags. ‘ ‘ Every Monday I got a check from the Bigane people.” The amount of the check depended on the amount of coal he hauled. He further testified that “When I bought coal from the Bigane people and sold it to my customers I made more money.” That during the past two years he hauled for other people besides the Biganes. “I reported at the Bigane yards etery morning at seven or seven-thirty,” but he missed some days; that he had the Biganes’ sign on his truck and at the time was coming back to pick up another load; that after the accident he delivered a couple of other orders for the Biganes and that he reported the accident to Mr. Bigane.

On examination by his counsel he further testified that he was driving his own truck on the day in question, the license was in his name; that he was a coal dealer — buys, sells and delivers coal. That he also did hauling for the Biganes, “I mostly go there;” that he did not have to go if he did not want to. That when he got a load of coal at the yard Bigane told him what kind of coal and where to deliver it and how it was to be delivered, in bags, wheelbarrows, etc.; that on Monday he was paid commissions depending on the tons delivered; the more coal he delivered the more commission he got.

Joseph Bigane was again called by plaintiffs as an adverse witness and testified that they did not have any written contract with Buchunas to do any hauling, everything was oral; that sometimes when Buchunas was taking a load of coal for which he was to collect he was told not to deliver unless he got the money; that they gave him an enamel sign to put on his truck ; it was more or less permanent.

This is the substance of the evidence so far as it pertains to the question before us for decision.

Counsel for Bigane Brothers’ position is that there is no dispute in the evidence on this question and therefore the question was one of law and the court should have sustained its motion for a directed verdict made at the close of all the evidence or for judgment N. O. V. That all the evidence shows that Buchunas was an independent contractor and not their agent. On the other side, counsel for plaintiffs’ position is “that an examination of the record reveals a very definite dispute and conflict in the evidence as to this relationship.” Therefore, whether Buchunas was an independent contractor, or Bigane Brothers’ agent, was a question of fact for the jury and the jury, by their answer to the interrogatory having found that he was their agent, and by their verdict in plaintiffs’ favor, which was approved by the trial judge, the judgment should be affirmed.

It has often been said that where there is no conflict in the evidence the matter to be decided is one of law for the court. This is an inaccurate statement of the law. The correct rule is that where there is no dispute in the evidence and but one conclusion can reasonably be drawn from it, the question is one of law, but where a difference of opinion may legitimately be drawn from the evidence, the case must be submitted to the jury. Reilly v. Peterson Furniture Co., 314 Ill. App. 46, where we cite an opinion by our Supreme court in Chicago & N. W. Ry. Co. v. Hanson, 166 Ill. 625, and several by our Appellate courts and from other jurisdictions, and call particular attention to an opinion written by Judge Pound in Moore v. Rosenmond, 238 N. Y. 356, and to Best v. Dist. of Col., 291 U. S. 411, where the opinion was written by Mr. Chief Justice Hughes.

The rule of law applicable in an action to recover damages for personal injuries, where it is sought to invoke the doctrine of respondeat superior — that the person directly charged with the negligence was not the agent or servant of the claimed master but an independent contractor, — has often been stated by this court and our Supreme court. In Ferguson & Lange Co. v. Industrial Com., 346 Ill. 632, the court said: “It is impossible to lay down a rule by which the status of a person performing a service for another can be definitely fixed as an employee or as an independent contractor. Ordinarily no single feature of the relation is determinative but all must be considered together. (Bristol & Gale Co. v. Industrial Com., 292 Ill. 16.) An independent contractor has been defined as one who renders service in the course of an occupation and represents the will of the person for whom the work is done only with respect to the result and not the means by which that result is accomplished. [Citing cases.] It also has been said that if the person for whom the service is rendered retains the right to control the details of the work and the method or manner of its performance, the relation of employer and employee exists. [Citing cases.] The right to control the manner of doing the work is an important if not the principal consideration which determines whether the worker is an employee or an independent contractor.” See also. Ryan v. Associates Inv. Co., 297 Ill. App. 544.

The right to discharge the person is also an important element, Bristol & Gale Co. v. Industrial Com., 292 Ill. 16; Densby v. Bartlett, 318 Ill. 616. Applying the rule of law to the facts in the instant case we are of opinion that considering the evidence with its intendments most favorable to plaintiffs, but one conclusion can be reasonable, viz., that Buchunas was not the agent or servant of the Bigane Brothers but was an independent contractor. He owned the truck in which he delivered the coal; obtained the license for it; paid for its upkeep; furnished the gas, etc.; delivered coal for the Biganes when he was reqúested by them to do so and was paid for the work he did; he was also in business for himself delivering coal. And the fact that on his truck there was a plate given to him by the Biganes, which carried their name, and that he collected money when he- delivered the coal and was requested to do so, we think did not make him an employee of the Biganes. Martin v. Turek, 227 Ill. App. 379; Trust v. The Chicago Motor Club, et al., 276 Ill. App. 289.

Having reserved defendants’ motion made at the close of all the evidence for a directed verdict, and the jury having found for plaintiffs, the court should afterward have sustained defendants’ motion for judgment notwithstanding the verdict.

The judgment of the Circuit court of Cook county is reversed and the cause remanded with directions in accordance with what we have said.

Reversed and remanded with directions.

Niemeyer, P. J., and Matchett, J., concur.


text:
    New York Life Insurance Company, Appellant, v. 1325 Astor Street Building Corporation et al., Defendants. John Wentworth et al., Appellees.
    Gen. No. 43,287.
    Heard in the first division of this court for the first district at the December term, 1944.
    Opinion filed March 26, 1945.
    Released for publication April 11, 1945.
    John F. Denissen and Clarence C. Taylor, both of Chicago, for appellant.
    Taylor, Miller, Busch & Boyden, of Chicago, for certain appellees.
    Heineman & Langsett, of Chicago, for certain other appellee.
    Isham, Lincoln & Beale and Cyrus H. Adams, for certain appellee.
    Bobb, SpoeRri, Bourland & Harris, of Chicago, for certain appellee; Preston Boyden, Cassius M. Doty, Walter F. Heineman, Cyrus H. Adams, James P. Dillie, and Herman C. Nagel, all of Chicago, of counsel.
   Mr. Justice O’Connor

delivered the opinion of the court.

The New York Life Insurance Company filed its complaint in chancery to foreclose the lien of a trust deed dated June 27, 1928, on an apartment building, executed by defendant, 1325 Astor Street Building Corporation given by it to secure the payment of its promissory note for $414,000, dated June 27, 1928, payable to the New York Life Insurance Company. About 7 months thereafter, plaintiff filed an additional Count II to its complaint, claiming the individual defendants were personally liable and that they should be decreed to pay any deficiency. The foreclosure was not contested. The court struck that part of the complaint by which it was sought to hold the individuals liable. The case was referred to a master and a decree of foreclosure was afterward entered. The indebtedness not having been paid, the property was sold by the master and the deficiency decree for $170,913.84 entered against the Building Corporation. Plaintiff appeals.

The record discloses that Wentworth and Ball, two of the defendants, owned adjoining pieces of real estate on Astor street in Chicago and it was decided to erect a co-operative apartment building on the two pieces of real estate. The usual proceedings in such a proposition were followed, a corporation was formed, an apartment building of 14 stories containing 12 apartments erected, the property conveyed by Went-worth and Ball to the corporation and certain individuals were to pay respective amounts toward the payment of the cost of the land and building for Avhich they were to receive shares of stock in the building corporation and were to execute a lease of their respective apartments. The balance of the cost was to be raised by a loan and the money for this purpose was borrowed from the insurance company, secured by a trust deed to the Chicago Title & Trust Company on the property. Under the terms of the note the money was payable in a number of installments. The plan was carried out, the moneys paid and from time to time payments were made but afterward some default was made in payment and the foreclosure proceeding brought.

Counsel for plaintiff in their brief, in stating plaintiff’s theory of the case say: “Plaintiff’s theories of the case do not apply to all the defendants alike. For clarity and brevity, defendants Wentworth, Ball, • Callahan, Wolf, Morton, Bebori and Cleveland, together Avith I. Newton Perry and Frederick A. Stock, both of whom died before this action was commenced, are referred to herein as Participants and thus distinguished from the remaining defendants. . . .

“As to Participants, plaintiff’s theories are that, although the title to the real estate was taken in Mortgagor and it executed the trust deed and notes, Participants were the actual purchasers and the real debtors; that Participants were joint adventurers and the principals in the mortgage transaction and Mortgagor was merely their trustee or agent; and that the fiction that Mortgagor and Participants, as shareholders, were distinct entities should be disregarded to circumvent fraud.” And as to other participants, “plaintiff’s theory is that the proprietary leases were contracts for the benefit of plaintiff as a third party beneficiary.”

On the other side, counsel for defendants say that plaintiff’s claim by which it seeks to hold the individuals liable for the deficiency is an afterthought. That November 13, 1942, when plaintiff filed its claim it made no claim that any individual was liable for any deficiency and that such a claim was not made until about 7 months thereafter, when plaintiff filed an amended Count to its complaint. That from the time of the beginning of the plan in 1927, the making of the note and trust deed in 1928 and thereafter the leases, and in 1938 when the time of payment was again extended by aSn agreement entered into between the building corporation and the insurance company, no claim was made at any time by plaintiff that there was any personal liability on the parir of any individual. Defendants ’ further contention is that any allegations of the complaint by which it is sought to charge fraud are mere conclusions, no facts being stated.

Attached to the original complaint as exhibits are (1) the promissory note dated June 27, 1928, for $414,000 which recites that for value received the defendant building corporation promises to pay to plaintiff, the insurance company, the amount of the note in installments, the last of which was for $224,452.38 on July 20, 1943, with interest thereon, etc. That “This note is secured by trust deed bearing even date herewith on that certain property, with the buildings and improvements thereon situated at 1325 Astor Street;” that privilege is reserved to pay $1,000 or multiples thereof, on any interest date, etc. The note is signed: ‘ ‘ 1325 Astor- Street Building Corporation By John Wentworth, President By O. F. Ball, Secretary.” Then follows a certificate by the Chicago Title & Trust Company Trustee, that the note is described in the Trust Deed to it dated June 27, 1928. (2) Exhibit 2 is a copy of the trust deed dated June‘27, 1928, between the building corporation and the Chicago Title & Trust Company, trustee. In it the note for $414,000 is specifically described, with the privilege of partial payments and that it is evidenced by the certificate of the Title & Trust Company. That the property in question is conveyed and the usual provisions of such trust deed follow, and the further provision that the grantor “covenants and agrees that it will pursue diligently to completion, the construction, erection and equipment of the fourteen (14) story and basement, fireproof, twelve (12) family apartment building, upon the premises” according to plans and specifications heretofore submitted to the insurance company. Then follow a number of other provisions, one of which is that if any law should afterward be passed in Illinois as to the method of valuing property for the purpose of taxation, etc., the indebtedness might be declared due, etc.

The trust deed is executed by “1325 Astor Street Building Corporation By John Wentworth President, Attest: O. F. Ball Secretary.” It is acknowledged by these two men, as such officers, before a notary public on July 12, 1928. It bears the recorder of Cook county’s endorsement July 13, 1928. (3) The next exhibit attached to the complaint is an extension agreement dated August 27, 1938, between the building corporation and the insurance company. It recites the note involved in the foreclosure, the amount due and unpaid, the execution of the trust deed; that another agreement had been entered into between the parties August 7,1933, extending the time of payment; that a second extension agreement had been entered into between the parties February 3, 1936; that some of the installments due under the terms of the extension agreement of February 3, 1936, have not been paid, and that the payment of the balance then due, $370,000, might be made in installments, the last of which was for $290,500, due July 20, 1948. This extension agreement is executed by the “1325 Astor Street Building Corporation By John Wentworth President, By Otho F. Ball Secretary” and by the plaintiff, New York Life Insurance Company, By W. P. Kingsley, Vice President By C. E. Judson, Assistant Secretary. It is acknowledged by the two officers of the building corporation before a notary public and by the vice president and assistant secretary of the New York Life Insurance Company before a notary public in the county of New York.

There was attached to Count II as an exhibit, a copy of the leases made by the building corporation to the respective tenants who were owners of stock in the building corporation.

Counsel for plaintiff in their brief say that the individual defendants “were the purchasers of the property, the real parties in interest, and they are, therefore, liable for the deficiency.” And in support of this say that while the case presented is “in a sense, novel and without precedent” a court of equity will award relief, and that the cases of Bride v. Stormer, 368 Ill. 524 and Naas v. Peters, 321 Ill. App. 212, affirm this principal.

Counsel’s brief was filed before the Naas case was reversed by the Supreme court in 388 Ill. 505 in which the true meaning of the Bride case was pointed out. But we think the facts in these two cases were not at all similar to the facts in the case at bar. We are further of opinion that the contention made by plaintiff, that the individuals are liable for the deficiency on the ground that the mortgagor, the building corporation, was merely the trustee or agent, cannot be sustained. We think the record discloses that the insurance company was loaning its money to the building corporation, as is shown by all the documents which are attached as exhibits to the complaint as amended, and are inconsistent with such theory. And it is an elementary rule of law that where the allegations are in conflict with the facts disclosed by the exhibits, the latter must prevail. Fetherston v. Nat. Rep. Bancorp., 280 Ill. App. 151; Conkling v. McIntosh, 324 Ill. App. 292; Price v. Solberg, 269 Ill. 459. We think the allegations of the complaint as amended, by which it is' sought to charge the individuals with fraud, are but conclusions and wholly insufficient in setting up any facts to show that the plan was in any way fraudulent. We think the facts were well known to plaintiff as to the plan of the individual defendants to construct the co-operative apartment building and that there was no fraud on the part of the individuals.

The order and decree of the Superior court of Cook county appealed from is affirmed.

Affirmed.

Niemeyer, P. J., and Matchett, J., concur.


author: Mr. Justice Friend

text:
    Rose K. Joyce, Appellant, v. Board of Education of City of Chicago, Appellee.
    Gen. No. 42,723.

      Heard in the second division of this court for the first district at the June term, 1943.
    Opinion filed April 2, 1945.
    Released for publication April 17, 1945.
    Maximilian J. St. George, of Chicago, for appellant.
    Richard S. Folsom, of Chicago, for appellee; Frank S. Righeimer and Frank R. Schneberger, both of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Mrs. Rose K. Joyce appeals from an order of the circuit court dismissing her complaint of August 14, 1942, wherein she sought a writ of certiorari to review an order of the Board of Education of Chicago removing her as a teacher in the public schools of this city upon charges filed against her by the superintendent of schools.

Plaintiff had taught history at the Hyde Park high school since 1933. February 28, 1942, the superintendent of schools suspended her on charges of conduct unbecoming a school teacher in the Chicago public schools. On that same date he reported his action to the board, and requested that the matter be referred to the general committee of the board to hear evidence and report its findings and conclusions to the board. March 4,1942, his report and recommendations were adopted, and March 20,1942, the secretary of the board notified plaintiff that charges had been preferred against her by the superintendent of schools, that the board at its meeting on March 4 had designated and empowered the general committee to act as a trial committee, and that hearing on the charges would take place April 22 at the board rooms. After two continuances, the trial began on May 14 and was . concluded May 22. Plaintiff was present with counsel throughout the 'entire hearing and actively participated in the trial. The matter was then taken under advisement by the committee, and its written report was presented to the board on June 25, setting forth each step of the proceeding, making specific findings of fact, and containing a recommendation to the board that the superintendent’s charges be sustained, that the findings and conclusions of the committee be approved, and that plaintiff be dismissed. The report was signed by the chairman and seven other members of the general committee. Subsequently, by a vote of nine yeas and no nays, the report of the committee was adopted by the board and plaintiff was dismissed as a teacher.

The charges lodged against plaintiff by the superintendent were twofold: (1) “that she made un-American statements in her classroom derogatory to the United States Government”; and (2) “that she wrote a letter to a former student of hers who failed to register in accordance with the Selective Service Proclamation of the President of the United States, congratulating him on his ‘couragous and idealistic stand. ’ ”

In its report the general committee set forth the charges preferred against plaintiff, found that due notice of the hearing, together with a copy of the charges, had been served on her April 1, 1942, more than 30 days prior to the hearing, that she appeared in person at the trial, together with counsel, and through the examination of witnesses and otherwise participated in the hearing and presented evidence in her own defense, that the charges and each of the specifications were proven at the hearing and were true, and that she was guilty of conduct unbecoming a teacher in the Chicago public schools (1) in “that she wrote a letter to a former student on February 17, 1942, the day following the former student’s failure and refusal to register in accordance with the Selective Service Proclamation of the President of the United States and the provisions of the Selective Service Act, congratulating him on his ‘ courageous and idealistic stand,’ wishing him success, and stating that ‘you and others who take the same stand are.the hope of America, ’ notwithstanding the fact that she knew that all male persons between the ages of 20-45 who had' not previously registered were required under the law to register,” and (2) in “that she made un-American statements in her classroom derogatory to the United States Government; that she had stated in her classroom, among other things, the following: that the United States had the attack on Pearl Harhor coining to it; that Japan had every right to declare war on the United States; that the United States was wrong in limiting immigration of the Japanese; that the Japanese should be permitted to become American citizens; that the United States was wrong in declaring war on Japan; that the Government was wrong in its attitude toward Japan; that the Government was wrong in its attitude toward war; that Hitler was attempting to establish a democracy in Europe and that the United States and Great Britain were trying to prevent it; that the United States was always trying to put something over oil other countries; that Stephen Decatur’s toast — ‘My country! in her intercourse with foreign nations may she always be right; but my country right or wrong, ’ is wrong and dangerous and that the students should not believe in it or follow it. ’ ’

The authorities in this State are generally to the effect that the scope of review by the court on certiorari is whether the tribunal hearing charges has jurisdiction to act, whether there was cause for removal, and whether the tribunal proceeded in accordance with the essential requirements of the statute. People v. Lindblom, 182 Ill. 241; Joyce v. City of Chicago, 216 Ill. 466; Funkhouser Coffin, 301 Ill. 257; McKeown v. Moore, 303 Ill. 448. The trial court in its examination of the record in this cause found that the board had jurisdiction, that its findings, based on the evidence, showed cause for removal, and that the board proceeded legally and in accordance with the essential requirements of the statute for the removal of teachers on charges preferred against them.

Although plaintiff urges nine separate grounds for reversal, the principal questions presented and stressed on oral argument were: (1) whether the statutory requirements for removal of a teacher were sufficiently followed and complied with; and (2) whether the findings of the general committee, that she was guilty of conduct unbecoming a teacher, were supported by the evidence and justified her dismissal for cause.

Section 161, paragraph 186, of chapter 122, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 100.661], provides that no teacher or principal who has been appointed by the Board of Education, after serving the probationary period of three years, shall “be removed except for .cause, and then only by a vote' of not less than a majority of all members of the board, upon written charges presented by the superintendent of schools, to be heard by the board, or a duly authorized committee of the same, after thirty days’ notice, with copy of the charges, is served upon the person against whom they are preferred, who shall have the privilege of being present, together with counsel, offering evidence and making defense thereto.” The Board of Education consists of eleven members, nine of whom constituted the general committee to whom the hearing was committed. Plaintiff’s counsel argues, that since only four of the nine heard all the evidence, the finding and recommendation of the trial committee was invalid. Since the general jurisdictional requirements, provided by statute, were complied with, the immediate inquiry is whether it was necessary that all members of the trial committee be present at each hearing. The statute does not require that all or any certain number of the members of the trial committee be present or vote on its report of findings to the board; the limitation in the Act is merely that there must be not less than a majority of the board voting in favor of dismissal of the teacher. In this proceeding the trial committee consisted of the members of the board, and since a committee of that board heard the evidence, it cannot be logically argued that a unanimous vote must be secured or that all *the members must be present at each hearing. A similar question arose in Schlau v. City of Chicago, 170 Ill. App. 19, where only two members of the commission heard the evidence on the charges preferred against a civil service employee. The court there said: “There is nothing in the Act to indicate it was the intention that all three of the commissioners should act in every case. On the other hand, the plain construction is that the act of two of them, constituting a majority, is sufficient.” In People v. City of Chicago, 234 Ill. 416, the relator contended, inter alia, that because the trial board was composed of only two members of the civil service commission, and because the record did not disclose what examination or investigation was made by the commission in reviewing the evidence, the law was not complied with, and therefore the civil service employee’s removal was illegal. In holding against that contention, the court said: “The evidence before the trial board was taken down in shorthand and was shown on this hearing not to have been written up by the civil service commission before the recommendation of the trial board was acted upon, and it is insisted that all this evidence must be read by the commission in order to comply with the law and justify the removal. We cannot agree with this contention. The intent of the law is that the civil service commission shall exercise its own judgment in reaching a conclusion as to whether the recommendation of the trial board shall be approved or disapproved .... The civil service commission is not required to review in any specific manner the evidence before the trial board, call witnesses, notify the accused or give him an opportunity to be heard before the commission itself, previous to approving or disapproving the finding of the trial board. What examination or investigation was made by the civil service commission is not disclosed by the record, but it must be presumed to have been in accord with the law unless the contrary be shown. It may be noted that in this case the trial board was composed of two members of the civil service commission — a majority of the latter body.” The record discloses that in the case at bar the members of the trial committee took the matter under advisement at the conclusion of the hearing, that the report of the committee, signed by eight members thereof, reported its findings to the board on June 25, 1942, and the board reviewed the report of the trial committee in accordance with the law. The statute imposes on the board the duty of exercising its own judgment as to whether the recommendation of the trial board shall be approved or disapproved; it is not obliged to follow the findings and recommendations of the committee, and may elect to reject the recommendations if it sees fit. It has the right, and the statute imposes upon it the duty, to determine for itself whether it will adopt and approve, or reject and disapprove, the recommendation of the committee. In the case at bar eight of the nine members of the committee signed the report, and all of the nine remaining members of the board (there being two vacancies) approved the recommendation of the committee and voted for plaintiff’s dismissal.

Plaintiff quotes and relies on the statement in 43 C. J. Municipal Corporations, sec. 1358, p. 788, that “a removal is invalid where a member of the board who has not heard all of the testimony participates in the decision,” but the concluding part of the sentence, which is not included in plaintiff’s quotation, qualifies the rule as follows: “but this rule does not apply where the practice obtains of making a removal by the proper authority on the report of a trial board or officer.” Schlau v. City of Chicago, 170 Ill. App. 19, and State ex rel. Aucoin v. Board of Police Com'rs, 113 La. 424, 37 So. 16, support the exception to the rule. Under the circumstances we are of opinion that the board proceeded in compliance with the provisions of the law with reference to the removal of a teacher, and that it had jurisdiction of the party and the subject matter.

The remaining consideration is whether the charges, finding and report constitute “cause,” within the meaning of the statute, as rendering plaintiff unfit to be a teacher in the public schools of Chicago. The findings of the general committee, which were approved, concurred in and adopted by the board, and which were held to constitute sufficient ground for dismissal, were predicated in part on the letter which plaintiff wrote to a former student about two months after Pearl Harbor, as follows: “Dear David, Allow me to congratulate you on the courageous and idealistic stand you have taken on the war situation — war which is in reality mass murder. I wish you success. You and others who take the same stand are the hope of America. Sincerely, Mrs. Rose K. Joyce.” Plaintiff argues that this letter did not constitute cause for removal, to which defendants reply that it is for the board to determine what constitutes cause. In Murphy v. Houston, 250 Ill. App. 385, Mr. Justice Matchett, speaking for the court, said that it was for the commission to determine what is cause for removal, but that it may not make an arbitrary and unreasonable rule in this respect, and then defined cause to mean “some substantial shortcoming which renders continuance in his office or employment in some way detrimental to the discipline and efficiency of the service and something which the law and a sound public opinion recognize as a good cause for his not longer occupying the place.” The rule as laid down is in harmony with Throop on Public Officers (Book III, ch. XVI), City of Chicago v. Condell, 124 Ill. App. 64, Heaney v. City of Chicago, 117 Ill. App. 405, Joyce v. City of Chicago, 120 Ill. App. 398, affirmed 216 Ill. 466, and City of Chicago v. Gillen, 124 Ill. App. 210. The question as to who shall determine what constitutes cause has frequently been presented to the court, and the rule to be deduced from the authorities is that where the statute is silent as to what constitutes cause, the right to determine the question is in the tribunal having jurisdiction of the particular officer or employee. Kammann v. City of Chicago, 222 Ill. 63; Murphy v. Houston, supra. It will he noted, of course, that when the charges were preferred against plaintiff by the superintendent, the United States was engaged in a war with Japan, precipitated by the dastardly acts of that country of December 7, 1941, now commonly referred to as “Pearl Harbor.” We were not only fighting Japan in the west but engaged in war with Germany and Italy in the east. Loyal Americans approved the action taken by our representatives in Congress on December 8, 1941, declaring war on our enemies, and we all shared the feeling that if the war was to succeed, the support and encouragement of every individual was necessary. Certainly, it was incumbent upon teachers, who mould the minds of the young, to display the proper- patriotic attitude. Plaintiff takes the position that being a citizen as well as a teacher, she was entitled to freedom of speech, and therefore it was perfectly proper for her to write the letter as well as to make the statements attributed to her by her students, which the committee found as an additional justifiable cause for dismissal. In answer to this argument defendants point out the commonly known fact that under the Selective Training and Service Act of 1940 it became the duty of every male citizen of the United States between the ages of 18 and 65 to present himself for and submit to registration in such manner as should be determined -by the rules and regulations of the Act; and that by Proclamation of the President, male persons between the ages of 20 and 45 who had not previously registered, were required to do so on February 16, 1942. David Nyvall, a former student of plaintiff, publicly announced that he would refuse to register on the day fixed by the President’s proclamation, and on the day after Nyvall was required to register but refused, plaintiff wrote him the letter hereinbefore set forth. She was, of course, familiar with the Act and knew that Nyvall was included among those who were required to register on February 16; nevertheless, she congratulated him on what she described as a “courageous and idealistic stand,” thus encouraging him to violate the law, and wished him success in his efforts to refuse to register, expressing the sentiment that other boys “who take the same stand are the hope of America. ’ ’ She should have foreseen that the incident would provoke public indignation and that her letter, if publicized, as it was, would tend to undermine the morale of young men of military age in her classes and among the nation whom she was inviting and encouraging to violate the law. We think the board was fully justified in finding that a teacher writing such a letter ought not to be permitted to continue as a teacher in the public schools, and having jurisdiction of plaintiff as an employee of the board, it had the right to determine whether her conduct constituted cause for dismissal.

As additional ground for dismissal, plaintiff was found guilty of conduct unbecoming a school teacher because of various statements made in her classroom which were derogatory to the United States Government. Numerous students in her class, some ten in all, related the discussion of current events the day following the attack on Pearl Harbor, in which plaintiff participated. They testified that some of her statements were derogatory to the United States Government, giving specific instances. Other students denied that she had made the statements attributed to her or placed a different interpretation on her discussions. The evidence was conflicting. However, in view of our conclusion that the letter to Nyvall was indefensible and constituted cause for her dismissal, we consider it unnecessary to discuss the testimony adduced upon the hearing as to the other charges or to decide whether the findings in respect thereto are sustained by the record.

Accordingly, the judgment of the circuit court should be affirmed, and it is so ordered.

Judgment affirmed.

Sullivan, P. J., and Scanlan, J., concur.