text:
    Downers Grove Community High School District No. 99 et al., Appellees, v. Board of Education of Non-high School District of DuPage County, Appellant.
    Gen. No. 10,075.

      Opinion filed June 14, 1946.
    Released for publication July 15, 1946.
    S. S. Du Hamel, of Springfield, for appellant.
    Harold W. Norman, of Chicago, and William E. Hooper, of Downers Grove, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Dupage county for $24,818.83 against appellant non-high school district, for the balance of tuition due appellees for pupils attending the Downers Grove Community High School from the non-high school district for the school years 1938-1939 to 1942-1943 inclusive.

It is conceded that the non-high school district owes the high school district on this account. The only controversy is as to certain items included and other items excluded by the court as entering into the per capita cost of maintaining the high school, the method of computation used in arriving at such per capita cost, and the resulting* amount of the debt.

During the period in controversy, the pertinent portion of the statute relating to tuition to be paid by non-high school districts for pupils therefrom attending a high school in another school district (Ill. Rev. Stat. 1941, ch. 122, § 96, par. 104 [Jones Ill. Stats. Ann. 123.923]), reads as follows:

“The tuition paid shall in no case exceed the per capita cost of maintaining the high school attended, excluding therefrom interest paid on bonded indebtedness, which tuition shall be computed by dividing the total cost of conducting and maintaining said high school by the average number of pupils enrolled, including tuition pupils.”

In 1943 this section was amended by adding the following :

“Depreciation on the building and equipment of the high school attended shall be included as part of the cost of maintaining the high school attended, and the amount of annual depreciation on such building and equipment shall be dependent upon the useful life of such property.” (Ill. Rev. Stat. 1943, ch. 122, par. 104 [Jones Ill. Stats. Ann. 123.923].)

The basis of the judgment in this case is as follows: During the school years in controversy the average number of pupils attending the high school from the non-high school district was respectively: 1938-1939, 132.83; 1939-1940, 171.16; 1940-1941, 194.88; 1941-1942, 194.86; 1942-1943, 191.66; that the total cost of conducting and maintaining the high school for those school years, including depreciation, but excluding repairs of building or building equipment, and replacement of building equipment and educational equipment, was respectively as follows: $109,350.22; $111,959.23; $122,108.74, $124,314.06 and $137,641.10; that during those respective school years the following amounts were expended for the following purposes :

The total cost of conducting and maintaining the high school, the average number of pupils enrolled, and the per capita cost was as follows:

It was agreed on the trial, and the court found, that $72,299.16 had been paid by the non-high school district to the high school district during those years on account of tuition, and the court found that the balance of $24,818.83 was still due and unpaid and it was for this sum that judgment was rendered.

No question is raised as to the average number of pupils attending the high school from the non-high school district nor as to the average total enrollment. The first ground argued for reversal is that the trial court erred in not deducting the tuition received from other high school districts from the cost of maintaining the high school before computing the per capita cost to be charged against the non-high school district, and in striking the third separate defense alleging this ground. The statute provides for no deductions except interest on bonded indebtedness and expressly provides that the tuition shall be computed by dividing the total cost of maintaining the high school by the average number of pupils enrolled, including tuition pupils. It isi a cardinal rule of statutory construction that the expression of one thing or mode of action in an enactment excludes all others. (People ex rel. Nelson v. Wiersema State Bank, 361 Ill. 75, 85; People v. Collins, 351 Ill. 551, 555; Board of Education v. Board of Education, 321 Ill. App. 131, 137.) The divisor, “the average number of pupils enrolled, including tuition pupils,” manifestly includes all pupils enrolled, including all tuition pupils, and does not permit of a construction excluding any group of pupils.

During the period in controversy, sec. 96 also provided that the tuition to be paid by other high school districts for pupils therefrom attending a high school in another school district, “shall not exceed the per capita cost of maintaining the high school attended.” It would be just as logical to argue that the tuition received from the non-high school district should be deducted from the cost of maintaining the high school attended before computing the per capita cost to be charged against the other high schools. Manifestly the statute does not contemplate any such procedure in either case. It is apparent that any such method would result in an unequal per capita cost to the school districts involved, and would nullify the express provisions of the statute and the legislative intent “to secure as even a distribution of cost as it is possible to obtain,” mentioned in People v. & N. W. R. Co., 286 Ill. 384, 395.

The claim that the court should have excluded from the total cost of maintaining the high school the sums received by the school district from the State school distributive fund, is also without merit. In 1934, sec. 96 was amended by adding the following proviso: “Provided that in determining the per capita cost there shall also be excluded from the total cost of conducting and maintaining said high school the amount of State aid received during the year on account of claims provided under paragraph (f) of section 211 of this Act.” (Laws 1933-34, Spec. Sess. p. 248.) Paragraph (f) of section 211 provided for periodical issue of warrants by the auditor for the payment of available common school funds to the county superintendents of schools of the various counties.

Appellant cites this amendment and quotes from Board of Education v. Board of Education, 343 Ill. 464, 468, as follows: “Actual cost is the basis prescribed by the statute upon which the tuition must be computed.” That expression of the court concerned a charge of one fourth of an insurance premium on a five year policy issued upon payment in advance of four annual rates, and the' court held that only one fifth of the premium was chargeable for the current year. That case has no bearing here. The amendment invoked was repealed in 1937 (Laws 1937, pp. 1116, 1119), by a re-enactment of sec. 96, omitting the amendment, and restoring the section to its original form. Mo more potent or unmistakable evidence of the legislative intent to omit such a deduction could be produced. This also disposes of the claim that the court erred in striking the second separate defense claiming that State aid should be excluded.

It is next claimed that having charged depreciation on the building and equipment, appellees had no right to charge repairs and replacements, on the theory that the result is a double charge on the same account. Depreciation is a loss not restored by current maintenance, in other words, it is a loss over and above current repairs. (Peoples Gas Light & Coke Co. v. Slattery, 373 Ill. 31, 59; Chicago Rys. Co. v. Illinois Commerce Commission, 277 Fed. 970; Cumberland Telephone & Telegraph Co. v. City of Louisville, 187 Fed. 637, 653; City of Norfolk v. Board of Sup’rs of Nansemond County, 168 Va. 606, 192 S. E. 588, 595; City of Waterville v. Kennebec Water District, 138 Me. 307, 25 A. (2d) 475, 482; Lindheimer v. Illinois Bell Tel. Co., 292 U. S. 151, 78 L. Ed. 1182, 54 Sup. Ct. 658, 664.) In determining reasonable rates for supplying public service it is proper to include in operating expenses, that is, in the cost of producing the service, an allowance for consumption of capital in order to maintain the integrity of the investment in the service rendered. (Peoples Gas Light & Coke Co. v. Slattery, supra.) The cases cited above involve rate making for public service rendered. As a rate for service to the public is involved in the instant case these cases are analogous and applicable.

The particular items allowed as part of the total cost of conducting the high school, complained about by appellant, are: (a) about $200 charged as repairs to the roof of the building in 1940, claimed to be unfair because 20 per cent of it had already been charged to depreciation at 2 per cent per annum; (b) $650.64 for new boiler tubes, with a like claim as to depreciation; (c) replacement of typewriters at $70 each, less $30 allowance for the old machine, when $3.50 per year was allowed for depreciation; and (d) cost of replacing gymnasium mats at approximately $160, in addition to a 70 per cent charge for depreciation. The same argument is advanced as to other replacements of a similar character, bio complaint is made as to the rate of depreciation adopted by the court.

It appears from the testimony of the superintendent of the high school, who computed the cost of maintenance and operation, that the term “replacement” was used in the sense of replacing furniture, desks, tools, tables, or something of that kind, or replacing equipment used in instruction, such as in the laboratory, and that he charged the replacement cost and the depreciation “right along.” As we said in Board of Education v. Board of Education, 321 Ill. App. 131, 135: “Outside of the salvage value at the expiration of the useful life of the building, the money spent for its construction or acquisition is gone, beyond any power of the school authorities to recover any part of it.” What is there said obviously relates to equipment as well as to a building. By long established and practically universal custom, the cost of keeping up repairs enters into and is a factor in fixing the rate of depreciation allowable for the useful life of a building or equipment. It was the legislative intent that the cost of conducting and maintaining the high school should be based upon two elements, first, the expense of conducting and operating the school, and second, the maintenance of the school property. (Board of Education v. Board of Education, 343 Ill. 464, 467.) As to the items of repairs to the roof of the building and new boiler tubes, they are obviously current repairs of periodical recurrence, in the same class as painting, or replacing broken windows, and the like, not allocable to depreciation. We do not think there was any error in the allowance of those two charges.

Typewriters and gymnasium mats belong to the first element of maintenance above mentioned, that is,— the expense of conducting and operating the school. While appellees had charged depreciation on the books as 10 per cent per annum, they agreed on the trial to a rate of 5 per cent, which was adopted by the court. Typewriters were replaced every three years. The net cost, at the price of $70, with an allowance of $30 for the old machine, was $40. At 5 per cent on the original cost, the depreciation would amount to $3.50 per annum, or $10.50 for the three year period. The court allowed, in addition, 65 per cent of the replacement cost, or $26, making the total allowance for the three year period of $36.50, which is less than the $40 net cost to the district. To make appellant’s theory applicable, the district would have to retain the typewriters for 20 years.

The gymnasium mats cost about $160, and had a life of about seven years. The depreciation allowed would amount to $8 per year or $56 for the seven year period. Appellees argue that the balance of the cost, or $104, could be charged as an operating expense in the year of replacement; that in such event the cost of the new mats, $160, would be treated as a capital expenditure and depreciation on the new $160 would continue for 20 years, thus extending for seven years beyond the originally contemplated period of 20 years; or, that another way to handle it would be the method followed by them, namely, to charge the entire replacement cost of $160 to expense in the year of replacement, instead of $104, a difference of $56; that the additional charge in one year is offset by the fact that the replacement expenditure is not capitalized and hence the depreciation ceases at the end of the original 20 year period, and that thus it becomes a question of whether the $56 difference shall be charged to expense in the year of replacement or shall be recovered by seven additional years of depreciation of $8.00 per annum; and that the difference in the two methods is trivial. We think there is much force in this argument and that the claim of appellant of a double charge on account of typewriters, gymnasium mats, and other equipment of a similar character should not be sustained. In Board of Education v. Board of Education, supra, at page 468, the court said: “Books, chairs, typewriters and apparatus of various kinds may not be worn out, and stationery and supplies, if bought in large quantities, may not be wholly exhausted within a particular year. During the same year, however, other like chattels become useless and supplies not currently purchased are used and their cost is-not taken into account at the time. Such purchases of particular things, although made in certain instances less often than once a year, may properly be regarded as replacements and the evidence shows that the expenditures therefor are, speaking generally, substantially the same from year to year. An absolutely accurate distribution of the cost of conducting and maintaining a high school between successive years cannot be made and the circuit court did not err in allowing the foregoing items as parts of such cost for the school years in question.” This also disposes of appellant’s argument that the expenses of replacement in some years were much larger than in others, and that a taxpayer moving out of the non-high school district after the year in which the larger charge occurred, would be discriminated against.

The School Code (Ill. Rev. Stat. 1945, ch. 122, par. 18-3 [Jones Ill. Stats. Ann. 123.1031]) providing for payment from the State treasury of tuition, on the basis of per capita cost, for children from orphanages or homes for orphans, dependent or abandoned children admitted thereto from the State in general, contains the following provision, invoked by appellant:

“Such total annual per capita cost shall be determined by totaling all expenses of the school district for the school year preceding the filing of such claim, including among other things depreciation and insurance, and excluding .capital expenditures, the retirement of bonds and anticipation warrants, ’ ’ etc.

Appellant claims that under the doctrine that all school statutes should be construed together, capital expenditures should be excluded in the case at bar. This section specifically differentiates between depreciation and capital expenditures, and the express exclusion of capital expenditures therein is no more than is provided by necessary implication in sec. 96, supra. Capital expenditure is not here involved, and the right to charge for replacement of typewriters and other chattel equipment is expressly sanctioned in Board of Education v. Board of Education, supra.

There was no error in entering judgment against appellant for costs of suit. The exemption from liability for costs (Ill. Rev. Stat. 1945, ch. 122, par. 15-6 [Jones Ill. Stats. Ann. 123.995]) applies only to unsuccessful plaintiff school corporations or school officers. (Sebastian v. School Directors of School Dist. No. 103, Montgomery County, 317 Ill. App. 524, 529.) Board of Education v. Board of Education, 321 Ill. App. 131, relied upon by appellant, was a case where the plaintiff was unsuccessful in a suit, and is not in point. Furthermore, par. 15-6 further provides for collection of costs from defendant school officers against whom a judgment is obtained.

The judgment of the trial court was correct, and is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    Adam E. Patterson, Nellie Patterson and Bessie Smith, Appellees, v. Manhattan Mutual Automobile Casualty Company, Appellant.
    Gen. No. 43,485.
    Opinion filed June 28, 1946.
    Released for publication July 13, 1946.
    Walter A. Christopher and Wyatt Jacobs, both of Chicago, for appellant.

      Ellis & Westbrooks and DeFrantz Williams, both of Chicago, for appellees; Adam E. Patterson and DeFrantz Williams, both of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

In a trial before the court without a jury defendant was found guilty and plaintiffs’ damages were assessed at $2,500. Defendant appeals from a judgment entered upon the finding.

Prior to the instant proceeding plaintiffs had recovered judgments by default for $4,750 against one Henry Smith for personal injuries sustained by them in an accident that occurred on May 31, 1940, at 11:30 o’clock, p. m., Central Standard time, or 12:30 a. m., June 1, 1940, “Chicago Daylight Savings time.” The instant proceeding was brought by plaintiffs against defendant insurance company under its statutory motor vehicle policy in the sum of $2,500 that it had issued to Smith. The policy provides, inter alia:

“In Consideration of the required premium and for the term herein specified, Does Hereby Insure and Indemnify Henry Smith, Address 4328 Indiana Avenue, Chicago, Illinois, as owner, against liability for any injury to or death of any person resulting from the negligence of such owner or of his or its agent or agents, from twelve o’clock midnight of the 3rd day of April A. D. 1940, until twelve o’clock midnight of the Thirty-First day of December A. D. 1940, Central Standard Time, in the operation of the following described motor vehicle or vehicles:

(Italics ours.)

The policy also contained this provision:

“This policy cannot be cancelled without giving ten days’ notice in writing of such cancellation to the said owner and to the Secretary of State of the State of Illinois, either by delivery of such notice personally by registered mail.”

On May 21, 1940, defendant served the following cancellation notice:

“Please take notice that Policy No. 1515 issued to Henry Smith by Manhattan Mutual Automobile Casualty Company is hereby cancelled, effective on the 31st day of May 1940 at 12:00 o ’clock midnite.

“Manhattan Mutual Automobile Casualty Company

“By J. B. Veitch

“Date May 21, 1940”

The sole contention of defendant is that “defendant’s motor vehicle policy was not in full force and effect at the time of the happening of the accident”; that the trial court erred in holding that the date and hour of cancellation expressed in the notice was controlled by Central Standard time; that the trial court should have held that by general business custom in the. City of Chicago the term midnight meant twelve o’clock Daylight Savings time. We find no merit in this contention. The policy provides that the contract did not expire “until twelve o’clock midnight of the Thirty-First day of December A. D. 1940, Central Standard Time.” (Italics ours.) When defendant cancelled the policy, as it had a right to do, under its terms and fixed the time of the expiration in the following language: “effective on the 31st day of May 1940 at 12:00 o’clock midnite,” without designating a different kind of time than that stated in the policy, Central Standard time controlled the hour of the expiration. The so-called Daylight Savings provision in the Municipal Code of Chicago, Sections 193-33-3iN35, was in operation on May 21, 1940, the day the notice was given, and if defendant at that time considered that that provision controlled its policy in the matter of time it would have stated in the notice that the contract expired at twelve o’clock midnight of May 31, 1940, Daylight Savings time. It seems clear that the contention of defendant is a mere afterthought. The so-called Daylight Savings provision in the Municipal Code of Chicago applies only to the corporate business of the municipal government. Defendant admits that it has been unable to find any Illinois decision that sustains its point, but it contends that there are decisions of certain of .the sister States that support its position. As to these decisions it is only necessary to say that cases that involve contracts of insurance in which the standard of time is not fixed and it became necessary for the courts to determine what standard of time was intended by the contract, have no application to the instant case. Brookson Distillers, Inc. v. United States Casualty Co., 315 Ill. App. 235, supports the contention of plaintiffs that the instant case is governed by Standard Time. The opinion in that case was written by Mr. Justice McSurely. There the defendant issued to the plaintiff a combination robbery (hold-up) insurance policy. On May 6, 1938, the plaintiff therein was engaged in the wholesale liquor business in Chicago and had in its employ one Charles Brooks, whose duties consisted in selling merchandise and making collections, and during the course of his employment he was held up and money and checks amounting to $267.63 and his automobile were taken from him. The defendant claimed that it was not liable because the loss did not occur within the hours of employment covered by the policy, and it cited a provision in the policy which covered an ‘ ‘ outside messenger” (such as Brooks) between the “hours 7 a. m. to 12 midnight.” The policy provided that “The Policy Period shall be from September 24th, 1937 to September 24th, 1938, at 12 o ’clock noon, standard time . . . .” Brooks testified that the robbery occurred at 11:35 p. m. daylight saving time on the evening of May 6,1938. The defendant introduced evidence of persons connected with the police department to the effect that they were notified by telephone of the robbery about 12:31 a. m., May 7, but Mr. Justice McSurely stated that this testimony was weakened by the fact that the police report showed that the report was received at 11:31 p. m. and that the report was subsequently changed to read 12:31 a. m., but he held that in any event the finding of the trial court that the robbery took place at 11:35 p. m. would not be disturbed. The opinion then states:

“It is admitted that there was in force in the City of Chicago at this time what is termed a ‘ daylight saving time’ ordinance, which, .during the summer months, advances the time one hour beyond standard time. Plaintiff makes the point that the policy says that the time covered is ‘standard time,’ and that if, as the police department testified, the loss occurred about 12:30 daylight saving time, this would ■ be the same as one hour earlier, or 11:30 standard time, hence covered by the policy. It is well settled that if there is any ambiguity in an insurance policy, that construction will be adopted which favors the insured. Joseph v. New York Life Ins. Co., 308 Ill. 93.

‘ ‘ The court could properly conclude that even if the holdup occurred at 12:30 midnight, daylight saving time, this would be 11:30 standard time, hence covered by the policy.

“For the reasons indicated the judgment is affirmed.”

Defendant seeks to avoid the effect of the foregoing opinion by arguing that the decision was based upon the theory that if there was ambiguity in the contract the construction would be adopted that favored the policyholder. We have taken occasion to examine the brief filed by the defendant in the Broohson Distillers, Inc. case, supra, and we find therein the following: “On the last Saturday of April, 1938, by ordinance, the City of Chicago observed ‘Daylight Savings Time’ and at the time the loss occurred this time was in effect and was the official time for the transaction of all business, public and private. . . . The time for which coverage was extended under the terms and provisions of the policy contract issued to the plaintiff had expired at 12:00 midnight Daylight Savings Time and did not cover the loss sustained by the plaintiff company.”

Defendant makes the somewhat surprising point that the cancellation notice was an extraneous document, separate and aside from the policy, and that the words in the cancellation notice, “effective on the 31st day of May 1940 at 12:00 o’clock midnite,” are not to be interpreted by the policy; that it introduced evidence tending to prove that by custom and usage in the City of Chicago the Daylight Savings time prevailed at the time in question and therefore the cancellation notice should be interpreted in accordance with that custom and usage. There is, of course, no merit in this contention. The right to cancel the contract is given by the policy, which also fixes the manner in which the cancellation shall be made. This court will take judicial notice of the fact that the railroad companies and some commercial enterprises did not operate under Daylight Savings time. While, as Mr. Justice McSurely stated in his opinion: “It is well settled that if there is any ambiguity in an insurance policy, that construction will be adopted which favors the insured. Joseph v. New York Life Ins. Co., 308 Ill. 93,” we do not think that there is any ambiguity in the insurance policy nor in the cancellation notice in the instant case. In our opinion this appeal presents a very plain case. Mr. Justice McSurely thought that the Broohson Distillers, Inc. case was such a simple one that the opinion was published in abstract form.

The judgment of the Superior court of Cook county should be affirmed and it is accordingly so ordered.

Judgment affirmed.

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


text:
    Nellie Farris, formerly Nellie Kiriazis, Appellant, v. Marcus L. Kiriazis, Appellee.
    Gen. No. 43,681.
    Opinion filed June 28, 1946.
    Rehearing denied July 11, 1946. Released for publication July 13, 1946.
    Edward L. S. Arkema, of Chicago, for appellant.
    Joseph Rolnick and David B. Shapiro, both of Chicago, for appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

Nellie Farris, formerly Nellie Kiriazis, plaintiff, and Marcus L. Kiriazis, defendant, were married February 22, 1928, and lived together as husband and wife until October 27, 1943. On May 9, 1945, plaintiff filed a complaint for divorce charging defendant with desertion and praying that she he awarded temporary alimony, solicitor’s fees, and suit money, and that she be given leave to resume her maiden name of Nellie Farris. Defendant filed his appearance pro se and consented to an immediate default and hearing. On June 11, 1945, Judge Haas heard evidence in the cause and entered a decree finding that defendant had wil-fully deserted plaintiff as charged and decreed “that the bonds of matrimony heretofore existing between [the parties] . . . is hereby dissolved . . . .” The decree contains also the following: “It is further ordered, adjudged and decreed that the question of alimony and support for said plaintiff is hereby reserved until the further order of the court.” (Italics ours.) On October 24, 1945, plaintiff filed the following petition:

“Petitioner, Nellie Farris, respectfully alleges:

“1. That she was the plaintiff in the above entitled proceedings wherein a decree for divorce was entered June 11, 1945, on her complaint.

“2. That at the time the said hearing on plaintiff’s complaint for divorce was set by stipulation of the parties, that according to the terms of the stipulation the defendant was to make payments for support of the plaintiff voluntarily, and it was orally agreed that the payments would continue in the same amount, to wit: Fifteen Dollars per week, as had been paid by the defendant for a period of about two years, and that subsequent to the decree, which was entered June 11, 1945, the said defendant continued to make payment in the sum of Fifteen Dollars per week for a period of four weeks, and since said time has been making payments in the sum of Ten Dollars per week, and although repeatedly requested by this petitioner and her attorney, and although said defendant is well able to make payment in the snm of Fifteen Dollars per week, he has neglected and refused so to do.

“3. That petitioner is unemployed and has no income or separate property from which petitioner may derive an income, and that at the present time petitioner is physically unable to secure employment and is under the care of a physician.

“4. That defendant and this petitioner had been married for a period of seventeen years, and lived together as man and wife for a period of fifteen years, said defendant prior to the decree of divorce having separated himself from this petitioner for a period of two years.

“Wherefore petitioner prays that an order be entered requiring the defendant to pay to this petitioner the sum of Fifteen Dollars per week for her support, and a reasonable sum for her solicitor’s fees.”

On the same day the following appearance was filed by Joseph Rolnick, “Attorney for Defendant”: “I hereby enter the special and limited appearance of Marcus L. Kiriazis, defendant in the above-entitled cause, and my special and limited appearance as his attorney for the sole and only purpose of questioning the jurisdiction of the Court to enter any order upon defendant for plaintiff’s support and plaintiff’s solicitor’s fees, as prayed for in plaintiff’s petition.”

The chancellor, Judge Padden, after arguments heard, entered an order which recites, inter alia, the following: “. . . the court finds that the reservation in decree heretofore entered in this case as to alimony does not confer the right on this court to award alimony now. It Is Hereby Ordered that said petition of plaintiff for alimony and additional solicitor’s fees be and the same is hereby denied and said petition be and the same is hereby dismissed for want of jurisdiction to award alimony now.” Plaintiff appeals.

Plaintiff contends:

“I.

“When the decree of divorce was entered providing that ‘the question of alimony and support for said plaintiff’ be reserved ‘until the further order of Court,’ the power and jurisdiction of the Court as a matter of law and fact had not been exhausted. . . .

“II..

“The general rule has long been established that after a marriage has been, by decree, dissolved, an application for alimony vn.ll be denied on the theory that the judgment is final and the Court has no jurisdiction except in two instances, (1) where the right or power has been reserved to itself by the decree, or (2) the power given to it by statute. . . .

“III.

“The trial Court erred in denying and dismissing plaintiff’s petition for alimony and solicitor’s fees for want of jurisdiction on the grounds that ‘the reservation in the decree as to alimony did not confer the right on this Court to award alimony now.’ . . .”

Defendant contends :

“I.

‘ ‘ The jurisdiction of a court hearing divorce matters depends entirely on the grant of the statute and not upon its general equity powers. . . .

“II.

“A court entering a divorce decree has no statutory power to reserve in such decree, the question of alimony and support for a divorced wife. There being no order of allowance of alimony in the divorce decree, the trial court had no jurisdiction to entertain a petition for an original allowance for such divorced wife, after the term at which the decree was entered had gone by. ,. . .”

As to the general rule upon the question before us:

In 27 C. J. S. Divorce Sec. 231, the author states (p. 947): “Alimony may be granted after a decree of divorce, if the right to have it subsequently determined is reserved therein, provided application therefor is made before the action has become stale.” (Italics ours.) The author cites decisions from ten states in support of the above rule.

In 1 Encyc. PI. & Pr. 414, the author of the article “Alimony” states: “The grant of alimony being a mere incident to a suit for divorce, it follows that if the application for alimony is made after the marriage has been wholly dissolved it will be denied, a final judgment being held to settle all property rights between the parties. The rule is that where by leave of court a suit has been once dismissed, or a final decree entered, the court has no longer jurisdiction over the subject-matter of the action, or over the parties, unless this right has been reserved to itself by the decree or by statute.” (Italics ours.)

The leading Illinois case upon the question before us is Starrett v. Starrett, 132 Ill. App. 314, where the opinion was written by Justice Dibell, one of the most distinguished and able jurists in the history of this State. We regard that case as so important in the determination of the question before us that we quote at some length from it (pp. 315, 316, 317, 318) :

“On May 28, 1892, appellee filed a bill for divorce against appellant, her husband, and had personal service. The bill prayed for a divorce and also that appellant pay appellee such sums of money as might be necessary and proper for her maintenance and support, and such sums as might be sufficient to enable her to employ counsel, and for such other and further relief as equity might require. On July 2, 1892, there was a hearing and a decree of divorce, the last clause of which read as follows: ‘The court reserves the consideration of the question of alimony for a further order and decree herein. ’ On November 14, 1904, appellee filed a petition in said cause and therein set up said former proceedings and her own need and the recently acquired wealth of appellant, and asked an allowance of alimony for her maintenance and a sufficient sum of money to enable her to employ counsel, and for her support during the pendency of the suit; and also asked an injunction restraining appellant from selling, assigning or encumbering his property till the further order of the court. An injunction was issued. A demurrer to an amended petition was overruled, and, on appellant’s motion, he was granted thirty days in which to answer. Appellee having previously entered a motion for alimony and solicitor’s fees pending the suit, that motion was then heard upon proofs presented, and an order was entered on March 15, 1906, that appellant pay appellee as alimony pendente lite $40 on or before April 1, 1906, and $75 on the first day of each and every month thereafter until the further order of the court, and that he pay her $100 on or before April 1, 1906, for her reasonable solicitor’s fees thus far incurred; and the court in the order reserved the right to hear further proof and make a further allowance for appellee’s support and solicitor’s fees from time to time prior to the final hearing, if the court should feel justified in so doing. This is an appeal from that order.

“Section 18 of the Divorce Act is as follows: ‘When a divorce shall be decreed the court may make such order touching the alimony and maintenance of the wife, the care, custody and support of the children, or any of them, as, from the circumstances of the parties and the nature of the case, shall be fit, reasonable and just; and in case the wife be complainant, to order the defendant to give reasonable security for such alimony and maintenance, or may enforce the payment of such alimony and maintenance in any other manner consistent with the rules and practice of the court. And the court may, on application from time to time, make such alterations in the allowance of alimony and maintenance, and the care, custody and support of the children, as shall appear reasonable and proper.’ Appellant contends that under this section the court must dispose of the question of alimony when the divorce is granted. He concedes that if an allowance is so made at that time, not in gross but in instalments, the court retains jurisdiction, while both parties live, to thereafter increase or decrease or entirely discontinue the allowance as the changing circumstances of the parties may require; but he contends that if an award of alimony is not made when the divorce is granted, or at the same term, jurisdiction over the question of alimony is at an end; and that in this case the attempt to reserve that question was a void act, and the court had no jurisdiction to entertain a motion or petition for alimony at a later term, and that this entire proceeding for alimony is coram non judice. We are of opinion that the setted practice in this state is otherwise. This bill asked for two branches of relief — a divorce, and an allowance for support and maintenance and for solicitor’s fees. The prayer for alimony was incidental to the main relief sought. It was entirely in harmony with recognized equity practice to grant a final decree as to the main question, viz., the divorce, and to retain jurisdiction of the incidental matter of alimony till some later date and term for any reason which seemed to the court to justify that course. In Hunter v. Hunter, 100 Ill. 519, the bill by a wife prayed a divorce and also for separate maintenance. Upon a jury trial there was a verdict finding for defendant as to the cause alleged for a divorce and for complainant as to the right to a separate maintenance. The court dismissed so much of the bill as prayed for a divorce, and decreed complainant entitled to a separate maintenance, and continued the case to hear evidence as to what defendant should pay. An appeal by defendant was held prematurely takeri, which meant that the court did not lose jurisdiction by postponing the matter of an allowance after entering a decree disposing of the issue as to the divorce. In Reavis v. Reavis, 1 Scam. 242, under a statute similar to section 18 above quoted, the court decreed a divorce to the husband and that alimony be allowed to the wife for the support of herself and child, and continued the cause to the next term to hear the evidence as to the amount to be allowed. This was treated as proper practice. A decree at the next term allowing her one cent was reversed with directions to make her a reasonable annual allowance. In Craig v. Craig, 163 Ill. 176, a wife obtained a divorce at one term of court, and in the decree the question of alimony was reserved for a further hearing, and a decree on that subject was entered more than a year later. Still later another decree corrected the description of land on which she was given a lien, and the amount of the instalments was reduced. Thereafter another decree was entered to enforce collection of certain unpaid instalments, and terminating the alimony with payment thereof. Complainant appealed from the last order. It was held that the former proceedings were not brought before the court by the appeal. Yet this was a tacit approval of the course pursued at the entry of the decree of divorce in reserving the question of alimony till another hearing at a later term, for if appellant’s position here is sound everything done after the term at which the divorce was granted was without jurisdiction; but the Supreme Court treated the case as if there had been jurisdiction to award alimony at a later term; and that allowance was so treated in the later case of Henderson v. Craig, 179 Ill. 395, and Henderson v. Kibbie, 211 Ill. 556, where the same allowance of alimony was further involved. Galusha v. Galusha, 138 N. Y. 281.

‘ ‘ This is not a new suit, but is a part of the original proceedings for divorce and alimony, and all the provisions of our statute relating to divorce, including section 15, which authorizes the allowance of temporary alimony and solicitor’s fees while the suit is pending, are applicable.” (Italics ours.)

We concur fully in Justice Dibell’s statement as to the settled practice in this State. The important ruling in the Starrett case has never been overruled nor modified.

In Kelley v. Kelley, 233 Ill. App. 203, service was had by publication and the decree, strangely enough, awarded the complainant alimony and solicitor’s fees. The decree did not reserve the allowance of alimony for future consideration. On December 4, 1922, the complainant filed a petition in the cause in which she admitted that the provisions in the decree as to alimony and solicitor’s fees were void. She averred that the defendant was then working in Chicago and in receipt of a large income, that she was without any means of support and that “he is now within the jurisdiction of the court and can be served with summons,” and she prayed that the court decree that the defendant pay her alimony for her support and maintenance and for the child’s support, and solicitor’s fees, and that a summons issue commanding the defendant to appear in court. The defendant filed an answer in which he admitted the entry of the decree, and that he was served by publication; that by the terms of the decree “An order for alimony and solicitor’s fees, to be paid by this respondent, was fixed by the court, ’ ’ but he alleged that the decree “did not reserve the right to fix, adjust or determine alimony, if any, due to the complainant . . . and that the court was without jurisdiction to award any alimony or solicitor’s fees to the complainant, upon the hearing of said case”; and he denied that the court had any jurisdiction to hear the petition or to enter any order for solicitor’s fees, alimony or court costs against him. There was a hearing on the petition and answer, evidence was taken, and the chancellor entered an order reciting the history of the case and the evidence heard by him, and decreed that the respondent pay to the petitioner $12.50 a week as alimony for herself and the child, beginning January 20, 1923, and every week thereafter until the further order of the court. Solicitor’s fees were awarded in the sum of $75. The Appellate court held that the finding in the original decree as to alimony and solicitor’s fees was a nullity and therefore it could not be inferred that jurisdiction of the subject matter, alimony, etc., was reserved ; that under that state of the record the trial court was without jurisdiction to enter the order of January 20, 1923. But in the opinion the court recognized that “there are decisions which hold that, where in the original decree for divorce it is provided that the consideration of the subject of alimony is reserved, independent proceedings may be inaugurated, even after the expiration of the term at which the original decree was entered, for the determination and assessment of alimony,” and the court quotes, apparently with approval, the ruling in. the Starrett case. The Kelley case was appealed to the Supreme court (317 Ill. 104) and as defendant strongly relies upon the decision of that court we will refer to it later. There is only an abstract of the decision in Karcher v. Karcher, 204 Ill. App. 210, where it was held that no jurisdiction to award alimony in a decree for divorce existed on service of summons against the husband by publication, but that where the decree for divorce in such suit reserved' the question of alimony for the future consideration of the court and the court thereafter by service of process or entry of appearance secured jurisdiction of the husband in personam the court might proceed to adjudicate the right of the wife to alimony and in the usual way to enforce its payment at a term subsequent to that at which the decree of divorce was entered. Mr. Justice Holdom, who wrote the opinion in the Karcher case, approved the ruling made in the Starrett ease. The opinion in the Karcher case states:

“We cannot see any distinction in the statute limiting the power of the court to reserve the question of the allowance of alimony to causes where jurisdiction of the defendant is obtained by personal service, and the barring of such power in those cases where service of the defendant has been had by publication. When the court by service of process or by entry of appearance secures jurisdiction of the defendant in personam, the court may proceed to adjudicate the right of the wife to alimony and in the usual way to enforce its payment at a term subsequent to that at which the decree of divorce was entered.”

The opinion states that no decision of the Supreme court can be found holding to the contrary. The Supreme court denied a certiorari in that case. In Young v. Young, 323 Ill. 608, the Supreme court held that because of the financial condition of the husband “the question of an allowance of alimony to her [plaintiff] should have been reserved for future consideration, as changes in the circumstances of the parties may warrant and as shall then appear to be proper and reasonable.” (p. 616) We might refer to decisions of some of the sister States that support plaintiff’s position, but we do not deem it necessary to do so.

We will refer to the cases cited by defendant in support of his position: As to the case of Kelley v. Kelley, 317 Ill. 104, the state of the record in that proceeding and the question that the court was called upon to determine sufficiently appear from our statement in reference to the opinion of the Appellate court in the same ease (233 Ill. App. 203). The Supreme court in that case held that a complainant who accepts a decree of absolute divorce where service is had on the defendant by publication waives any right to alimony and solicitor’s fees. As a certiorari was refused in the Karcher case the decision of Supreme court in the Kelley case overrules the ruling made by the Appellate court in the Karcher case, but it is not an authority in support of defendant’s position in the instant case; indeed, it has no application to the question before us. In the opinion of the Supreme court there is no criticism of the rule laid down in the Starrett case. Defendant places so much reliance upon the decision of the Supreme court in the Kelley case that we deem it advisable to restate the fact that there was personal service upon the defendant in the instant case and the decree reserved the question of alimony until the further order of the court. We are unable to see how the case of Johnson v. Johnson, 381 Ill. 362, has any application to the question before us. We may say the same as to Herrick v. Herrick, 319 Ill. 146; Trotter v. Trotter, 77 Ill. 510, and Anderson v. Anderson, 380 Ill. 435. In the case of Luczynski v. Luczynski, 327 Ill. App. 548, the decree dismissed plaintiff’s complaint and it was held that because of that fact certain other provisions in the decree were void. The Appellate court held that there was so much confusion in the trial of the case that they deemed it necessary to reverse the decree, and reversed and remanded the cause for a new trial. In Recklein v. Recklein, 327 Ill. App. 641, the decree awarded a sum in gross in lieu of all alimony and it was held that this award could not be modified at a later date. In Saurman v. Saurman [131 Ore. 117], 282 P. 111, the complaint filed by the wife alleged that the parties had no children and that they had settled their property rights out of court. The decree entered made no mention of the property settlement contract and awarded the plaintiff no relief except the dissolution of the marriage contract. Later the wife filed a motion to vacate the decree, upon the ground that the decree was procured by fraud. The trial judge denied her motion and the Supreme court affirmed that ruling. It would appear from the opinion that plaintiff asked the Supreme court to modify the divorce decree°hy requiring the defendant to pay for her support the sum of $350 per month, but that court held that the plaintiff did not ask for alimony and the decree made no provision as to alimony, and that it — the Supreme court — had no power under the Oregon statute to require the defendant to pay plaintiff alimony. That case has no application to the question before us. Defendant also cites Tenny v. Tenny (Fla.), 3 So. 2d 375. We have read the opinion in that case and find it difficult to believe that defendant is serious in his statement that it supports his position. While the opinion of the Florida court does not state which party obtained the divorce we may reasonably infer from certain language in the opinion that the husband obtained the decree and that because of that fact he owed no duty or obligation to the wife under the Florida statutes. The decree was affirmed in toto save in one particular, viz., the trial court retained jurisdiction of the subject matter and the parties “and the allowance to her (the wife) of whatever amount which may be reasonable and just for attorneys’ fees which may be incurred in the future.” (Italics ours.) And the court concludes: “The language supra [italicized] is hereby deleted from paragraph 14 of the final decree dated April 26, 1940, and the said decree stands affirmed as deleted. ’ ’

We are satisfied that the rule stated in the Starrett case is the law of this State. When the decree was entered in the instant proceeding the court had full jurisdiction of the parties and the subject matter, which included the question of alimony, and the trial court by apt language retained in the decree, as it had a right to do, jurisdiction of the question of alimony. There ,are cogent reasons why chancellors in certain cases would deem it advisable to reserve for future consideration the question of alimony. The Supreme court in Young v. Young, supra, found a situation present in that case that called for a reservation for future consideration of the -question of alimony. The chancellor who dismissed the instant petition had full jurisdiction to hear and determine the merits of that petition, and he erred in dismissing it.

The judgment order of the Superior court of Cook county of November 19, 1945, dismissing plaintiff’s petition is reversed and the cause is remanded with directions to the chancellor to hear and determine the petition upon the merits.

Judgment order of November 19,1945, reversed and cause remanded with directions.

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


text:
    James Pike, Appellant, v. Cina Wilcox, Appellee.
    Gen. No. 9,483.
    opinion filed May 28, 1946;
    rehearing denied July 10, 1946; released for publication July 10, 1946.
    Giffin, Winning, Lindner, Newkirk & Jones, for appellant; Dewitt S. Crow and Walter T. Day, for appellee.
   Per curiam.

Not to be- published in full.


author: Presiding Justice O’Connor.

text:
    Rosalie Cowen, Appellee, v. Harding Hotel Company et al., Defendants. Harding Hotel Management Corporation, Appellant.
    Gen. Nos. 43,527, 43,687.
    opinion filed June 26, 1946;
    rehearing denied July 9, 1946; released for publication July 9, 1946.
    Vogel & Bunge, for appellant; Barnet Perel, for appellee; Arthur A. Wolfinsohn and George A. Gordon, of counsel.
   Opinion by

Presiding Justice O’Connor.

Not to be published in full.


author: Presiding Justice Sullivan.

text:
    Goldie Buehler, Appellee, v. Albert C. Buehler, Appellant.
    Gen. No. 43,263.

      opinion filed June 28, 1946;
    released for publication July 13, 1946.
    Petit, Olin & Overmyer and Farthing, Farthing & Feickert, for appellant; Paul Farthing, Adelor J. Petit, Jr. and Franklin R. Overmyer, of counsel; Brill, May & Spear, for appellee; Harry May, of counsel.
   Opinion by

Presiding Justice Sullivan.

Not to be published in full.


author: Justice Scanlan.

text:
    Margaret Panella, Appellee, v. Weil-McLain Company and Phillip Domke, Appellants.
    Gen. No. 43,282.
    opinion filed June 28, 1946;
    rehearing denied July 11, 1946; released for publication July 13, 1946.
    James A. Dooley, for appellant; Arthur A. Wolf, Marion J. Hannigan and Leo S. Karlin, for appellee; Leo S. Karlin, of counsel.
   Opinion by

Justice Scanlan.

Not to be published in full.


text:
    Peter Ligitsos, Appellant, v. Harry Finerman, Appellee.
    Gen. No. 43,522.
    opinion filed June 28, 1946;
    released for publication July 13, 1946.
    Peter S. Sarelas, for appellant; Joseph I. Bulger, for appellee.
   Opinion by

Justice Scanlan.

Hot to be published in full.


text:
    Chester Bowles, Administrator, Office of Price Administration, for and on behalf of U. S. A., Appellee, v. James O. Koontz, Appellant.
    Gen. No. 43,556.

      opinion filed June 28, 1946;
    released for publication July 13, 1946.
    James O. Koontz, pro se; Amos J. Coffman, Regional Attorney, and George E. Leonard, Regional Litigation Attorney, Counsel for Price Administrator, for appellee; Jacob Cohen and Isadore L. Kovitz, of counsel.
   Opinion by

Justice Scanlan.

Not to be published, in full.


author: Justice Scan-lan.

text:
    Clara Mary Ahlstrand, Appellee, v. Olaf Albin Ahlstrand, Appellant.
    Gen. No. 43,657.
    opinion filed June 28, 1946;
    released for publication July 13, 1946.
    John D. Vosnos, for appellant; John V. Clinnin and Samuel S. Brown, for appellee.
   Opinion by

Justice Scan-lan.

Not to be published in full.


text:
    In re Estate of John I. Nelson, Incompetent. Augustus L. Williams and John D. Vosnos, Appellees. Appeal of Sarita E. Nelson, Conservatrix of Estate of John I. Nelson, Incompetent, Appellant.
    Gen. No. 43,669.
    opinion filed June 28, 1946;
    released for publication July 13, 1946.
    Macon H. Huggins and Harris B. Gaines, for appellant; John D. Vosnos and Augustus L. Williams, pro se.

   Opinion by

Justice Scanlan.

Not to be published in full.


author: Mr. Presiding Justice Kiley

text:
    Liberty National Bank of Chicago, Trustee for Sophia Phillips and Michael M. Phillips, Appellee, v. Sig-fried Kosterlitz, Appellant.
    Gen. No. 43,709.
    Opinion filed June 26, 1946.
    Released for publication August 19, 1946.
    McInerney, Epstein & Arvey, of Chicago, for appellant ; Louis M. Mantynband, Sidney R. Zatz and Melvin A. Garretson, all of Chicago, of counsel.
    Phillips & Suekoff, of Chicago, for appellee; William S. Kaplan and Walter Gainer, both of Chicago, of counsel.
   Mr. Presiding Justice Kiley

delivered the opinion of the court.

This is a forcible detainer action commenced November 6,1945, which resulted in a summary judgment, on plaintiff’s motion, against defendant who has appealed.

Defendant Kosterlitz leased a third floor apartment in the building at 1301 Madison Park, Chicago, from Silverstein, the owner. The written lease expired April 30, 1945. Pursuant to notice from Silverstein, the tenancy thereafter was from month to month. August 2,1945 Silverstein conveyed title thereto to the plaintiff as trustee for Sophia and Michael .Phillips and their daughter Joanne, beneficiaries under the trust. August 29, 1945, plaintiff, by Sophia Phillips, Agent, served notice of termination of the tenancy as of November 1st. September 29, 1945, plaintiff, by S. P. Phillips, Agent, posted ‘1Notice to Quit. ’ ’ November 2, 1945, plaintiff, by Sophia Phillips, Agent, returned to defendant his check for $160 for the November rent. Defendant refused to surrender possession and this suit was begun.

Plaintiff brought suit under authority of an OPA certificate issued August 4, 1945, by virtue of Section 6 (b) (2) (i) OPA Rent Regulations. Those parts of Section 6 provided for the issuance of a certificate to the purchaser (or vendor), on his petition, authorizing proceedings by him under local law to evict a tenant of the vendor for occupancy by the purchaser where the latter has paid in the aggregate 20 percent or more of the purchase price. The OPA certificate issued to the Phillips, giving them authority “to pursue his remedies for removal or eviction of the tenant . . . in accordance with requirements of local laws . . . ” The Phillips, however, did not bring this suit. The trustee did. It had no certificate authorizing it to sue.

Defendant argues that, while plaintiff has the right to sue under Illinois law in forcible detainer, it has no right under the OPA regulations to do so; whereas, the Phillips who have a certificate of authority to sue under the OPA regulations have no right to bring this action under “local law.” Plaintiff says defendant waived his technical objection to any deficiency in the certificate by failing to object before the OPA; that his contention is wrong, but if right, he is not harmed; and that the suit was properly brought under “local law” by the trustee for the benefit of the Phillips to whom the certificate issued.

Defendant rests his contention as to the lack of right in the Phillips to maintain this action on the provisions of the trust agreement under which title to the property is held by plaintiff. Plaintiff says that defendant is a stranger to the trust and cannot avail himself of its provisions. - The trust agreement provides that the beneficiaries, Phillips, have not and shall not “have any right, title or interest in or to any portion of said real estate as such, either legal or equitable, but only interest in the earnings, avails and proceeds as aforesaid.” The agreement also provides that any beneficial interest shall consist solely of a power to direct the trustee to deal with the title and to manage and control the property and the right to receive proceeds from rentals, which right shall be deemed to be personal property. It further provides that the trustee shall deal with the property only on written authority of Michael Phillips and that the beneficiaries in their own right shall have the management of the property, the control of renting, etc. and shall collect and handle rents, etc. with no duty on the part of the trustee with respect to those powers, except on written directions. The interest of the Phillips under the trust agreement was personal property only and not real estate. Chicago Title & Trust Co. v. Mercantile Bank, 300 Ill. App. 329. They could not, therefore, be lessors of any part of it. This fact is not altered by the provisions empowering them to manage the property, control the renting, receive the proceeds from rentals and to handle rents.

In view of the' provision of this agreement, the Phillips did not succeed Silverstein as defendant’s landlord. They have no right, therefore, as against defendant to possession of the apartment. They were not entitled to bring this action. They could not, accordingly, bring it in plaintiff’s name.

Under the terms of the trust agreement we believe that plaintiff succeeded Silverstein as defendant’s landlord. This conclusion is consistent with the construction which the parties themselves placed upon the agreement. We refer to the notices and to the letter returning defendant’s check for the November rent, all of which were signed in plaintiff’s name by Sophia, or S. P., Phillips, as agent. The affidavit of the manager of the building is in the record. It states that he has managed the premises for several years; that plaintiff took title to the property from Silverstein; and that he continued to manage the property “for the new owners. ” We infer what payments of rent defendant made were made to this affiant.

Plaintiff having the right under “local law” to sue defendant for possession, had no authority from the OPA to do so. The certificate to the Phillips as purchasers gave them no greater right to sue under “local law” than they had and, of course, gave plaintiff no right to proceed under the OPA regulation. We do not consider this a technicality which defendant waived by failing to object before the OPA. There is nothing in the record to show that he had an opportunity to do so. We think defendant’s contention is substantial. Plaintiff to maintain this action must have had, under the circumstances here, a Certificate Relating to Eviction from the OPA and a right to evict under Illinois law. Since plaintiff had no such certificate, it had no right to bring this action. This conclusion may seem harsh to the Phillips who are beneficial owners of the property. They are charged with notice of the OPA regulations. They chose to have the property conveyed to the plaintiff under the terms of the trust agreement which they executed. What disadvantage they had suffered was brought about by themselves.

We see no need to pass upon the other points.

Plaintiff was not entitled to the summary judgment as a matter of law. The judgment is, therefore, reversed and the cause is remanded with directions to enter judgment for defendant.

Judgment reversed and cause remanded with directions.

Lewe and Burke, JJ., concur.


author: Mr. Justice Burke

text:
    Florence Howard, Appellee, v. Aetna Life Insurance Company, Appellant.
    Gen. No. 43,682.

      Opinion filed June 26, 1946.
    Released for publication August 19, 1946.
    Defrees, Fiske, O’Brien & Thomson, of Chicago, for appellant; Virgil C. Lutrell, of Chicago, of counsel.
    McKinley & Price, of Chicago, for appellee; William McKinley and Paul E. Price, both of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

In a complaint filed in the superior court of Cook county against the Aetna Life Insurance Company, Florence Howard alleged that defendant issued a group life insurance policy to Owens Illinois Glass Company covering its employees and those of its subsidiaries ; that on July 7, 1944 James Howard was an employee of the Owens Illinois Can Company, a subsidiary of the Owens Hlinois Glass Company, and as such was entitled to participation in the rights, privileges and benefits conferred and granted by the policy; that on that date defendant insured the life of James Howard, with plaintiff, his mother, as beneficiary, in the sum of $2,000, payable in the event of death from any cause; that the certificate of insurance provided, among other things: (a) the insurance thereunder automatically terminated when the employee' left the' service of the employer, was dismissed, or otherwise discontinued working for the employer; (b) in the event of termination of employment for any reason, the employee was entitled, without further evidence of insurability, to an individual policy of life insurance from the defendant upon condition that within 31 days thereafter he make written application therefor and pay the first premium thereon; (c) the amount of such individual policy should not exceed the employee’s coverage under the group policy; (d) such individual policy should be upon any one of the nonparticipating forms customarily issued by insurer, except term insurance; and (e) the premium of such individual policy should be determined by employee’s then age and class of risk, unless he elected to pay up the difference between the group coverage premium and that of the individual policy from the date of the group certificate to the date of the individual policy, in which case the policy would be dated back.

The complaint further alleged that the employee, James Howard, ceased to be employed by Owens Illinois Can Company on October 31, 1944; that he died on November 4, 1944; that he did not, in his lifetime, elect to convert his group insurance; that notice of his death was given to defendant; and that proofs of death were waived by defendant’s denial of liability. She asked judgment for $2,000, interest and attorneys’ fees on account of defendant’s alleged vexatious and unreasonable refusal to pay. Defendant filed a motion to strike and for judgment, specifying the grounds on which it relied. The court denied the motion and defendant refused to plead further. Thereupon, judgment was entered for plaintiff and against defendant for $2,050, representing the face amount of the policy and interest. No claim for attorneys’ fees was made at the time judgment was entered and this contention was abandoned. Defendant prosecutes this appeal to reverse the judgment.

Plaintiff’s theory of the case is that “during the 31 day period within which the employee had a privilege of conversion the insurance upon such policy necessarily remained in force.” Defendant’s theory is that “when Howard ceased to be employed by Owens Illinois Glass Company, his insurance auto-matieally terminated; that thereafter defendant’s only obligation to him was, at his request and upon his compliance with the conditions precedent enumerated in the certificate, to issue to him an individual life insurance policy; that only the former employee could make such request and comply with such conditions; and that he, not having done so in his lifetime, neither the beneficiary nor a court could bring into being a contract which never existed.” We accept as proved all allegations well pleaded, disregarding conclusions of the pleader.

Our Supreme Court in Schmidt v. Equitable Life Assur. Society of United States, 376 Ill. 183, said (190):

“No rule in the interpretation of an insurance policy is more firmly'established, or more imperative and controlling, than that which declares that in all cases it must be liberally construed in favor of the insured to the end that he will not be deprived of the benefit of insurance for which he has paid.”

In Moscov v. Mutual Life Ins. Co. of New York, 387 Ill. 378, the court said (383):

“The parties to an insurance contract may incorporate in it such provisions, not in violation of law, as they choose; and it is the duty of the courts to construe and enforce the contract as made.”

In Aschenbrenner v. United States Fidelity & Guaranty Co., 292 U. S. 80, our Federal Supreme Court said (84):

“The phraseology of contracts of insurance is that chosen by the insurer and the contract in fixed form is tendered to the prospective policy holder who is often without technical training, and who rarely accepts it with a lawyer at his elbow. So if its language is reasonably open to two constructions, that more favorable to the insured will be adopted, Stipcich v. Metropolitan Life Ins. Co., 277 U. S. 311, 322; Mutual Life Ins. Co. v. Hurni Packing Co., 263 U. S. 167, 174; and unless it is obvious that the words are intended to be used in their technical connotation they will be given the meaning that common speech imports. Neighbors v. Life & Casualty Ins. Co., 182 Ark. 356; 31 S. W. (2d) 418; Tupper v. Massachusetts Bonding & Ins. Co., 156 Minn. 65; 194 N. W. 99; Anderson v. Fidelity & Casualty Co., 228 N. Y. 475, 483; 127 N. E. 584.”

The principles announced in the cases from which we have quoted are in harmony. That part of the certificate with the heading “Conversion Privilege” is the foundation of plaintiff’s case. Defendant contends that plaintiff is attempting by process of strained construction to fasten liability upon defendant, contrary to the plain and unambiguous provisions of a contract entered into by parties legally competent to make it. Plaintiff does not subscribe to defendant’s contention that the language is so clear and unambiguous as to leave no room for construction. Defendant asserts that in ordinary understanding “convert” means “to change the form of,” “to exchange,” and when used in connection with insurance policies would connote the substitution of one policy for another; that this is slightly inaccurate, inasmuch as the group certificate having terminated, there is no policy to exchange or convert, and that what is really meant is that a privilege or option is granted to have a new policy issued. Plaintiff states that “this refreshing-concession made by the defendant gives rise to the application of the well settled principle that equivocal expressions in a policy of insurance, whereby it is sought to narrow the range of the obligations these companies profess to assume, are to be interpreted most strongly against the company,” and that the very use of the word “conversion” conveys an implication of a continuance in a different form of that which is the subject matter of conversion.

Group insurance is a distinct form of insurance. Under the usual life policy the premium charged is somewhat larger than the actual cost of coverage, and as a consequence a reserve is in time built up. It is due to the existence of this reserve that the insured may borrow upon his policy, be entitled to extended insurance in the event he ceases making premium payments, and various other benefits usually granted by the contract. Group insurance is in the nature of term insurance. Group insurance policies do not confer privileges usually granted in ordinary life insurance policies. To bring the “converted policy” into being, affirmative action by the former employee is required, including compliance with con-precedent. After termination of employment for any reason whatever, the former employee is entitled to have issued to him, without further evidence of insurability, a policy of life insurance, provided he makes written application and pays the first premium within 31 days following the termination of the insurance under the group policy. It will be noted that these steps must be taken by the employee. Other paragraphs of this clause all have to do with matter required to be set forth in the application. Each requires the exercise of discretion and judgment. The clause recognizes that the amount of the group coverage may be more than the former employee can carry under an ordinary life policy, with its higher premium rate, and authorizes him to designate any lesser amount, takes cognizance of the existence of a difference of opinion among individuals as to the relative merits of various forms of life policies, and allows the former employee to select the form he prefers. He, however, is required to make the selection. This clause also gives him the option of having the new policy-dated back to the date of his group certificate and having the premium computed at his then age by paying up the difference in premiums. The right to a new policy is conditional and requires compliance with the expressed conditions. The provision requires performance of both manual and mental activities and that the affirmative moves constituting compliance with conditions “must be made by the employee.”

We are of the opinion that a former employee’s privilege to have an individual policy issued to him does not, of itself, continue his protection after termination of the employment, and that it is not a grace period. The effect of the grace period is to keep the policy alive, whereas the conversion rights do not keep the policy alive except for the single purpose of conversion. In Aetna Life Ins. Co. v. Catchings, 75 F. (2d) 628, the court said (629) that “the conversion privilege did not automatically extend the insurance. ’ ’ In Equitable Life Assur. Soc. of United States v. Yates, 288 Ky. 309, 156 S. W. (2d) 128, the court said (130):

“He is not insured between the termination of his certificate in the group policy and his exercise of the option by the payment of the premium on the converted policy, and should he die in the 31 day interim there can be no recovery.”

See also Cutledge v. Aetna Life Ins. Co., 53 Ga. App. 473, 186 S. E. 208; Schooley v. Metropolitan Life Ins. Co. (Tex. Civ. App.), 77 S. W. (2d) 886; Duval v. Metropolitan Life Ins. Co., 82 N. H. 543; Fearon v. Metropolitan Life Ins. Co., 138 Misc. 710, 246 N. Y. S. 701; Aetna Life Insurance Co. v. Carroll, 188 Ark. 154, 65 S. W. (2d) 25. Appleman, in his work on Insurance Law and Practice, vol. 1, sec. 125, pages 115-116, said:

“It is absolutely necessary, however, that the employee act within the designated period . . . and death during that period, without positive action on his part, will not bring the policy into force and ef-feet.”

We agree with plaintiff that the same rules of construction apply to group insurance as to other forms of insurance. However, a beneficiary thereunder is not entitled to rights other than those intended by the contracting parties. The cases of Shanks v. Travelers’ Ins. Co., 25 F. Supp. 740, and Atlas Life Ins. Co. v. Miles, 195 Okla. 645, 161 P. (2d) 1022, support plaintiff’s contention. The Shanks case was decided by the Federal Court of Oklahoma and the Miles case by the Oklahoma Supreme Court. The Shanks case dealt with a policy in which the language of the policy was more favorable to the contention of plaintiff than the policy in the case at bar. In that case the Federal Court felt that it was bound to follow the law as laid down by the Supreme Court of Oklahoma, saying: (742):

“These cases are highly persuasive of the correctness of the defendant’s position, but . . . decisions of the Oklahoma Supreme Court are controlling.”

We are satisfied that the better view is expressed by the opinions supporting defendant’s contention and that we should not follow the Oklahoma cases. Plaintiff cites Schmidt v. Equitable Life Assur. Society of United States, 376 111. 183; Sturmer v. Travelers Ins. Go., 279 111. App. 607; Kolodsiej v. Metropolitan Life Ins. Go., 307 111. App. 657; Poch v. Equitable Life Assur. Soc. of United States, 343 Pa. 119, 22 Atl. (2d) 590; and Emerick v. Connecticut General Life Ins. Co., 120 Conn. 60, 179 Atl. 335. We have read these cases, but find that they do not support plaintiff’s position.

In Baker v. Prudential Ins. Co. of America, 279 Ill. App. 5, it appears that an employee covered by a group policy was discharged on January 7, 1932 and died on February 7, 1932. In reversing a judgment for the employee’s beneficiary, we said (10):

“From the material provisions of the policy and the certificates from which we have above quoted, it is clear that the policy covered only the employees of the insured. It did not cover an employee after he had been discharged. ’ ’

The same conclusion was reached when the case reached this court again. (294 Ill. App. 613, Abst.) In Lynch v. Central States Life Ins. Co., 281 Ill. App. 511, recovery was allowed because the former employee had, prior to his death and within the time limited, made application for an individual policy. In the opinion the court makes it clear that the original policy was not in force because the employment had terminated prior to the employee’s death. In Roehrig v. Missouri State Life Ins. Co., 251 Ill. App. 434, recovery under a group policy was denied to the beneficiary of an .employee who had gone 'out on strike prior to his death, on the ground that since he could no longer be considered an employee it necessarily followed that he was no longer 'insured. Taking the “conversion provision” in its entirety, we are of the opinion that the language is not ambiguous. While the caption “Conversion Privilege” should be considered in determining the rights of the parties and the meaning intended, that caption is not controlling. The body of the clause makes it clear that a new policy would not come into being until the former employee took the required steps. A right in the former employee to exercise the privilege of having a new policy issued to him does not arise until the termination of the relationship of employer and employee. On termination of employment the only right which the former employee retains in the group insurance policy is that of making written application for another policy in the manner provided. It is obvious that the coverage under the group policy does not continue after termination of employment. We are of the opinion that the court should have sustained defendant’s motion to dismiss. Therefore, the judgment of the superior court of Cook county is reversed and the cause remanded with directions to enter judgment for defendant and against plaintiff.

Judgment reversed and cause remanded with directions.

Kiley, P. J., and Lewe, J., concur.


author: Mr. Justice Lewe

text:
    Paul R. Pallasch, for use of Helen Hinchy McNamara, Administratrix of Estate of James McNamara, Deceased, Appellant, v. United States Fidelity and Guaranty Company, Appellee.
    Gen. No. 43,214.

      Opinion filed June 26, 1946.
    Released for publication August 19, 1946.
    Moody & Schultz, of Chicago, for appellant; Herbert Bebb, Lloyd C. Moody and Edward G. Schultz, all of Chicago, of counsel.
    Burt A. Crowe, of Chicago, for appellee.
   Mr. Justice Lewe

delivered the opinion of the court.

This is a garnishment proceeding upon an automo-Mle insurance policy issued by defendant to Clarence Ezell. At the time the policy was in force Ezell’s automobile, wMle being driven by plaintiff Paul R. Pallaseh, collided with an automobile driven by one James McNamara who was fatally injured in the collision. Helen Hinchy McNamara, administratrix of the estate of James McNamara, deceased, brought suit against Ezell and Pallasch to recover damages arising out of their alleged negligent act. In the original proceeding against Ezell and Pallasch, defendant appeared by counsel in behalf of Ezell. Pallasch, nominal plaintiff in the present suit, engaged his own counsel. A jury trial resulted in verdicts for Helen Hinchy McNamara as administratrix for $5,000 against Pallasch. Ezell was found not guilty. Judgments were entered on the verdicts. An execution was issued against Pallasch, which was returned nulla bona. Subsequently the administratrix instituted the present proceedings on the Ezell policy against the defendant corporation to recover the amount of her judgment against Pallasch. A trial by jury resulted in a verdict for plaintiff in the sum of $5,000 and interest from December 11, 1940. Defendant filed motions for judgment notwithstanding the verdict and for a new trial. On the motion for judgment notwithstanding the verdict the trial court entered judgment for defendant. Plaintiff appeals.

In February 1938 Paul E. Pallasch was the manager of the Kruse service station where Ezell kept his1 Chevrolet automobile. Ezell was granted parking facilities at the service station without charge under an arrangement with Kruse service station to purchase all of his gasoline and oil from it. About two or three weeks prior to February 11, 1938, Ezell purchased a “Phillips 66” battery for his automobile from Kruse “service station, which carried an unconditional guarantee for one year. On several occasions the battery failed to function properly and was replaced. On February 11, 1938, Mrs. Ezell came to the service station to get her husband’s automobile. On this occasion it was necessary to replace the battery in order to get the car started. When she returned to the Kruse service station she directed Pallasch to get the car fixed. That evening Pallasch drove the automobile to a private garage situated in the rear of his home where he and one Mike Kobylski, also an employee of the Kruse service station, spent about two hours in locating a short circuit which had caused the battery failure. On the following morning, February 12, while Pallaseh was driving Ezell’s automobile back to the Kruse service station for the purpose of parking it there, the collision occurred which resulted in the death of James McNamara. The policy issued by defendant to Ezell extended additional coverage to other persons using the car with Ezell’s permission.

In the instant case plaintiff filed his affidavit for garnishment alleging that in the original proceedings a judgment was rendered in favor of Helen Hinchy McNamara, administratrix, against Pallaseh for the sum of $5,000; that an execution was issued against Pallaseh and returned nulla bona; that plaintiff believes that the defendant is indebted to Pallaseh. Plaintiff also filed certain interrogatories directed to the garnishee (defendant). In its answer to the interrogatories the defendant denied that it had money or property in its possession due Paul R. Pallaseh, denied that it rendered any defense to Pallaseh in the original proceedings, and denied that Pallaseh at the time of the accident was driving the car with the permission of Ezell.

Afterwards the defendant filed an amended and additional answer averring in substance that the policy provided that if claim was made or suit was brought against the insured, that such insured should immediately forward to the defendant company every demand, notice, summons, or other process received by him or his representative; that Pallaseh did not forward the summons at any time to the defendant; that the policy contained a limitation which excluded from coverage (<any person or organization or to any agent or employee thereof operating an automobile repair shop, public garage, sales agency, service station, or public parking place, with respect to any accident arising out of the operation thereof”; and that Pallaseh did repair work on the Ezell car for the benefit of the Kruse service station. Plaintiff did not traverse the new matter alleged in the defendant’s amended and additional answer.

Defendant contends that by plaintiff’s failure to traverse the new matter alleged in defendant’s amended answer it is deemed admitted under sec. 40 of the Civil Practice Act [Ill. Rev. Stat. 1945, ch. 110, par. 164; Jones Ill. Stats. Ann. 104.040]. The evidence shows, however, that testimony was heard on the issues raised by the amended answer with reference to Pallaseh’s duties as manager of the Kruse service station. Since it appears, that the parties regarded the issues as properly made, the filing of a traverse was waived. (Ancateau v. Commercial Casualty Ins. Co. of Chicago, 318 Ill. App. 553; Cairo Lumber Co., Inc. v. Ladenberger, 313 Ill. App. 1; Slezak v. Fleming, 392 Ill. 387.)

It is urged by defendant that plaintiff was not entitled to coverage under the policy because he failed to notify defendant after being served with summons in the McNamara suit and that he failed to tender demand for any coverage or defense. This defense was interposed after the proofs'were closed. That defendant received due notice of the accident involving McNamara and Pallaseh there can be no doubt. In reply to plaintiff’s. 16th interrogatory in this proceeding it admits receiving due notice; moreover it furnished counsel for Ezell and conducted his defense in the former proceeding.

In Appleman, Automobile Liability Insurance, at page 240, the author says: “It does not matter who gives the notice to the insurer, as long as notice is actually given of the occurrence of the accident or the pendency of the suit. Accordingly, notice could be given by . . . either a driver operating with permission of the insured or the insured himself.” (Citing among other eases Scott v. Inter-Insurance Exchange of Chicago Motor Club, 352 Ill. 572, 186 N. E. 176.) In the Scott case, the question of notice was raised and substantially the same arguments advanced as in the case at bar. We think that the question determined there is so nearly analogous to the one presented in this case that it should control.

The next question presented is whether the trial court erred in entering judgment in favor of the defendant notwithstanding the verdict of the jury in favor of the plaintiff. The law is well established that, on a motion for judgment notwithstanding the verdict of the jury, the question of law to be determined by the court is whether there was any evidence, taken in its aspect most favorable to the plaintiff, to sustain the cause of action. (Froehler v. North American Life Ins. Co. of Chicago, 374 Ill. 17; Walaite v. Chicago, R. I. & P. Ry. Co., 306 Ill. App. 5; Cooper v. Safeway Lines, Inc., 304 Ill. App. 302.)

Defendant argues that the permission clause of the policy did not apply to Pallaseh since he and Mike Kobylski were employees of the Kruse service station; and that the car was repaired at their home garage and was being returned to the Kruse service station when the accident happened and therefore it clearly comes within the exceptions contained in the “permission” clause of the policy.

The record discloses that plaintiff Paul R. Pallaseh, Mike Kobylski, Matthew Kobylski, William J. Pallaseh, and Francis J. Kennedy all testified that plaintiff had received permission from Ezell to drive his car for the purpose of making repairs. In considering defendant’s motion for a judgment notwithstanding the verdict, we must accept, as being true, the testimony of plaintiff’s witnesses bearing on the question of Ezell’s permission to Pallaseh to use the car. Plaintiff’s evidence also shows that the repairs on Ezell’s car were made by Pallaseh after his regular working hours at the Kruse service station without the knowledge or consent of Ms employer; that the sign at the service station stated that no repairs were made there; that Pallasch had been instructed by his employer not to make any; and that Pallasch did not operate an automobile repair shop in the garage on the rear of the premises in which he resided. In view of this evidence we are unable to understand the theory upon which the trial court entered judgment in favor of the defendant notwithstanding the verdict. The defendant also filed a written motion for a new trial under section 68 (3) (c) of the Civil Practice Act [Ill. Rev. Stat. 1945, ch. 110, par. 192, subpar. (3) c; Jones Ill. Stats. Ann. 104.068, subpar. (3) c]. So far as appears from the record this motion was undisposed of. This cause must therefore be remanded to the trial court to rule upon defendant’s motion for a new trial. Goodrich v. Sprague, 385 Ill. 200.

For the reasons stated, the judgment notwithstanding the verdict is reversed and the cause is remanded to the trial court to pass upon the defendant’s motion for a new trial.

Reversed and remanded.

Kiley, P. J., and Burke, J., concur.


text:
    Hyde Gillette et al., Trustees, Appellees, v. Healy Subway Construction Corporation et al., Defendants. Appeal of City of Chicago, Appellant.
    Gen. No. 43,241.

      Opinion filed June 26,1946.
    Released for publication August 19, 1946.
    Barnet Hodes, Corporation Counsel, for appellant; John J. Mortimer, Alexander J. Resa, Paul Denvir and Eugene Wachowski, Assistant Corporation Counsel, of counsel.
    Cassels, Potter & Bentley and McDermott, Will & Emery, all of Chicago, for appellees; William S. Warfield, III, L. H. Vogel and Francis J. Nosek, all of Chicago, of counsel.
   Mr. Justice Lewe

delivered the opinion of the court.

This is an action, under sec. 13 of hrt. 2 of the Illinois Constitution, to recover moneys alleged to have been expended by the plaintiffs for the construction of caissons, and taking of other protective measures in and about their building, occasioned by the construction of subway tunnels by the defendant City of Chicago. On motion of plaintiffs, defendants other than the City of Chicago were dismissed out of the case. There were two trials before the court apd a jury. On the first trial the jury disagreed, and on the second trial it returned a verdict in favor of the plaintiff in the sum of $34,133.38, on which judgment was entered. Defendant’s motions for a directed verdict and for a new trial were overruled, and defendant appeals.

Plaintiffs are the owners of a 14-story, basement and attic structure located at the southwpst corner of Madison and Dearborn streets in the City of Chicago, commonly known as the Hartford Building. Prior to 1940, eight steel columns, supporting the east wall of the building, rested on what are known as spread or floating foundations. These foundations consisted of concrete mats nine feet wide and thirteen feet long upon which were placed railroad rails spaced at regular intervals, and steel I-beams. On top of the I-beams was a cast iron plate which held the bottom of each column in position.

On November 3,1938, the city council of the City of Chicago adopted an ordinance for the construction of an initial system of subways. Afterwards, on August 22, and again on August 26,1939, plaintiff received notices in writing from the city of its intention to commence the construction of a subway along Dear-born street adjacent to plaintiffs’ building. Upon receipt of these notices from the city, plaintiffs employed Holabird & Eoot, an architectural and engineering firm in the City of Chicago, to advise them regarding the probable effect upon plaintiffs’ building of the construction of the subway tubes in Dearborn street, and whether protective measures were necessary. After a survey of the building and its foundations, Holabird & Eoot recommended to plaintiffs that each column of the building along Dearborn street be supported by a caisson four feet in diameter which would extend through the soft clay to hard pan, a distance of 60 or 65 feet, for the reason that the floating foundations would tilt or settle, thus causing damage to the entire east wall of the building. It appears that the west tube of the subway in Dearborn street was less than 10 feet below the bottom of the floating foundations which supported the steel columns of plaintiffs’ building, and at its nearest point the excavation was 8% feet from the - edges of the floating foundations.

The gist of the complaint and the amendments thereto is, in substance, that the subway tunnels were to be installed close to and a considerable distance below the bottoms of the Hartford Building spread footings; that the footings were underlaid by compressible clay capable of flowing laterally, which would be disturbed by the subway tunnel construction; and that upon the recommendation and advice of the architects and engineers the caissons were installed.

Defendant City of Chicago in its answer admits that it notified plaintiffs of its intention to construct a subway along Dearborn street; that notice was given plaintiffs well in advance of the commencement of the construction of the subway tunnels so that plaintiffs might take such steps as they deemed necessary with respect to their premises. Further answering, it denies that any of the work in connection with the construction of the double tube bore or three mezzanine stations, or any other work, was intrinsically dangerous, or otherwise dangerous, to the Hartford Building, or to the lives or property of any of the tenants thereof, or that it was under any duty or obligation whatsoever to shore, or otherwise protect, plaintiffs’ property. Defendant’s answer admits that the caissons were installed but avers that installation of the caissons was not reasonably necessary in or for the protection of plaintiffs’ property from any alleged damage due to the construction of the subway; that the benefits to the property described in the complaint, created by the construction of the subway, enhanced the value of the property to an extent equal to or greater than the aggregate amount of any and all expenditures, if any, made or to be made necessary, prudently or advisedly, in connection with the protection or repair of said building, and that the property described in the plaintiffs’ complaint has not been damaged for public use.

Plaintiffs’ replication alleged that no benefit to the property of plaintiffs was derived by the construction of said subway, nor was the property enhanced in value in any amount, but that, on the contrary, it has been damaged by the construction of the subway tube.

From the pleadings it appears that the issues of fact raised were, first, whether the expenditures by the plaintiffs in and for the protection of the building were reasonably necessary; second, whether plaintiffs’ property was specially benefited by construction and operation of the subway system.

Defendant’s first contention is that the trial court erred in excluding certain testimony of the defendant’s witness Frank A. Randall. The record discloses that Randall testified in substance as follows: that he was graduated from the University of Illinois in 1905 with a degree of B.S. in civil engineering, engineering; that afterwards he practiced his profession continuously; that he constructed hospitals, schools, churches, factory and office buildings in the City of Chicago and various other places in the United States; that from 1938 to the time of these proceedings he had been consulting structural engineer for the subway, making preliminary studies for the subway and appraisals of buildings that were condemned along the route of the subway; that he had charge of digging approximately a thousand caisson excavations in the City of Chicago from the Y. M. C. A. Hotel at 9th and Wabash on the south to the Victor Lawson Y. M. C. A. at Chicago avenue and Dearborn street on the north, and from the lake front to the Cook County hospital on the west; that the soil conditions are the same throughout the area; that the soil to Chicago Datum, which is fourteen or fifteen feet below the pavement level, is a fill of various kinds consisting of sand and rubbish and is not a natural soil; that below the fill there is a layer of clay about six feet in thickness on which the foundations of all the buildings in Chicago, including the Hartford Building, were placed; that in his opinion the soil immediately under the footings of the Hartford Building was capable of carrying 5,000 pounds per square foot. On direct examination of the witness, defendant’s counsel propounded the following question: “Have you an opinion, based upon your knowledge of the soil conditions and of the type of construction of the Hartford Building, and having in mind the shield method of construction of the subway, have you an opinion whether shoring or underpinning measures were necessary during the construction of the subway?” The trial court sustained plaintiffs’ objection to the question on the ground that it was an invasion of the province of the jury. Afterwards an offer of proof was made by defendant, incorporating substantially the same question, to which the witness replied that in his opinion no shoring or underpinning was necessary. Objection was also made to the offer of proof, which was sustained by the trial court on the same ground. In our opinion the question whether the shoring or underpinning was reasonably necessary was an ultimate issue of fact upon which the jury had to make its finding. In Keefe v. Armour & Co., 258 Ill. 28, at page 33, the court said:

“The question whether the method employed was reasonably safe was an ultimate fact in the case, to be determined by the jury as a conclusion from evi-dentiary facts. To permit the witness to give his opinion on the ultimate fact was to supplant the jury by a witness, and practically take from the defendant the right to a judgment of the jury as to the proper inferences to be drawn from the facts.”

To the same effect are Fellows-Kimbrough v. Chicago City Ry. Co., 272 Ill. 71, 77, People v. Paisley, 288 Ill. 310, 323, and People v. Gould, 345 Ill. 288, 328.

In their treatise Opinion Evidence in Illinois, the authors, King and Pillinger, have analyzed virtually all of the cases involving the ultimate issue rule in this State. In the summary, at page 338, they say:

“The admission by the courts of opinions on ultimate issues would result in a parade of witnesses giving mere opinions on each side such as now exists in the case of witnesses as to sanity in will contests and character witnesses in criminal cases. Anyone who has seen that procedure is impressed by its futility and its likelihood to mislead. It harks back to the old com-purgators. In a sense, if a judge permitted the opinion of a witness on the ultimate issue he would be delegating to the witness the power to decide.” (See also eh. 27, p. 331.)

In the instant case the effect of the foregoing question was to turn over to the witness Randall the decision as to whether the shoring or underpinning were reasonably necessary. Since it was the function of the jury to determine that question, we hold that the trial court properly sustained plaintiffs’ objection to the question.

Defendant asserts that in propounding the foregoing question it was merely following the same procedure used by the plaintiffs when on direct examination plaintiffs’ witness McClurg, an engineer, was asked what the probable effect of the digging or construction of the tubes of the subway along Dearborn street adjacent to the Hartford Building would be upon the Hartford Building, to which the witness replied, “It was my opinion that if no protective action was taken, that the building might be damaged.” Inasmuch as no objection was made to the answer on the ground that it was not responsive or otherwise incompetent, defendant is in no position to complain.

Defendant maintains that the court erred in refusing to give its instruction number 22, on the ground that the jury was not instructed concerning the meaning of the term ‘ ‘ special benefits. ’ ’ In Brand v. Union El. R. Co., 258 Ill. 133, at page 141, the court said:

“It is true that general benefits affecting the whole community, whether owners of property along the line of a railroad or not, such as increased facilities for travel, the increase of population and enhancing- the general prosperity, are not to be taken into account ; but benefits flowing from the proposed improvement which appreciably enhance the market value of the particular tract of land and offset injuries to it are to be considered, for the purpose of determining the ultimate question whether there are damages to the lands not taken.”

To the same effect is Metropolitan West Side El. Ry. Co. v. Stickney, 150 Ill. 362, 371. In our opinion the refused instruction in question is defective, in that it fails to differentiate between the general improvements which might accrue to the community as a whole from the public improvement and those benefits flowing from the improvements which might enhance the market value of the plaintiffs ’ premises. With respect to the question of special benefits we think all of the essential elements were fully covered in plaintiffs’ instruction 7 and defendant’s instruction 19.

Finally, defendant contends that by giving plaintiffs ’ instruction number 8 the court directed the jury to disregard all the testimony of defendant’s witnesses relative to the increase in value of the plaintiffs’ premises by reason of the construction of the subway. The record, consisting of more than 1000 pages, discloses that plaintiffs and defendant introduced the testimony of real estate experts, and that on the question whether the value of the plaintiffs’ premises would be enhanced by the operation of the subway the testimony of those called by the plaintiffs was in direct conflict with that given by those called by the defendant. These expert witnesses recited in great detail all the factors which they had considered in forming their opinions, and an extended review of their testimony would serve no useful purpose. The instruction number 8 applied with equal force to both parties; therefore no prejudice resulted. Manifestly, the jury believed the testimony of plaintiff’s experts.

From a reading of all of the given instructions we think the law governing the instant case was correctly and fully stated.

For the reasons indicated, the judgment is affirmed.

Judgment affirmed.

Kiley, P. J., and Burke, J., concur.


author: Presiding Justice Kiley.

text:
    Crane Packing Company, Appellant, v. Olin Brummer, Appellee.
    Gen. No. 43,441.
    opinion filed June 26, 1946;
    released for publication August 19, 1946.
    Nicholson, Barrett, Nisen & Keyes, for appellant; John R. Nicholson and Ernest V. Keyes, of counsel; Tenney, Sherman, Rogers & Guthrie, for appellee; S. Ashley Guthrie and A. Trevor Jones, of counsel.
   Opinion by

Presiding Justice Kiley.

Not to be published in full.