author: Mr. Presiding Justice Dady

text:
    McLin J. Brown, Individually and as Surviving Partner of the Law Firm of Dryer and Brown, Appellees, v. Illinois Iowa Power Company, Appellant.
    Gen. No. 9,394.
    Heard in this court at the October term, 1943.
    Opinion filed November 24, 1943.
    Rehearing denied February 1, 1944.
    Le Forgee, Samuels & Miller, of Decatur, and D. R. Kinder, of Litchfield, for appellant.
    Herbert W. Dey, of Hillsboro, and J. D. Wilson, of Nokomis, for appellee.
   Mr. Presiding Justice Dady

delivered the opinion of the court.

This is an appeal by defendant from an order granting a temporary injunction.

On August 8, 1942, the plaintiff, individually and as surviving partner of a law firm, filed in the circuit court of Montgomery county a complaint consisting of five counts. Four of the counts were at law and are immaterial to the present issue.

Count five was in equity and was the only count on which the injunction was based. Such count, so far as is material, alleged that at the time of the commencement of the suit defendant was and for several years prior thereto had been a public utility corporation furnishing gas and electric service to plaintiff at three places owned by him or in which he had an interest, namely, his residence, an office building and an apartment building; that plaintiff promptly paid all bills rendered for such service to his home prior to September 1, 1940, and to such other two properties prior to October 1, 1940; that on September 1, 1940, defendant owed plaintiff “in excess of $10,000” for legal services rendered, which defendant had refused to pay, and that thereupon plaintiff “rightfully” refused to pay any and all bills rendered by defendant for gas and electric service at such three places, and that “the amount due and owing to the defendant from the plaintiff is still greatly in excess of the amount owed by the plaintiff to the defendant for electricity and gas service”; that defendant had wrongfully threatened to discontinue "such service; that defendant had ample current and gas to render such service; that there was no other public utility authorized to render such service; that plaintiff had no means of generating electricity or producing gas, and that if defendant carried out such threats plaintiff would suffer irreparable injury and would have no remedy at law.

Such count prayed that inasmuch as the matter was ■ urgent and did not permit of notice for a preliminary injunction, a temporary order issue enjoining defendant from discontinuing such service until the court should otherwise order, and until an accounting might be had, and that upon a hearing the injunction be made permanent.

On December 21, 1942, plaintiff amended his complaint by adding an allegation that on February 1, 1935, the plaintiff was licensed to practice law. Such amendment also, to nse the language of the amendment, “reversed the word ‘to’ and the word ‘from’ where they first followed the words ’ ’ appearing above “at such three places.”

On March 3, 1943, plaintiff further amended his complaint by adding the words “at defendant’s request” after the words “in excess of $10,000 for legal service rendered.”

On March 31, 1943, the plaintiff filed his third amendment alleging that the defendant on March 3, 1943, was and still is insolvent, and therefore unable to pay its common creditors.

Said amendment further alleged that the defendant had charged the plaintiff and rendered to him a bill for electric service at his residence since September 1, 1940, by which it had charged to him 2 per cent of the amount of each and every bill for failure to pay the same within 10 days after the. period for which the bill was rendered, and that defendant had rendered to plaintiff a bill for electric and gas service at said-two other places so owned by plaintiff, by which it had charged to plaintiff 2 per cent of the amount of each and every bill so rendered for failure to pay the same within 10 days after the period for which the bill was rendered; that the defendant at the time each and every bill was so rendered was indebted to plaintiff in a sum greatly in excess of each and every bill so rendered, including all prior bills rendered, including such 2 per cent, and that the said charges so made by defendant of such additional 2 per cent had given rise to a dispute between the plaintiff and the defendant as to the correct sum, if any, which plaintiff owed defendant for electric and gas service.

On August 8, 1942, on motion of plaintiff, a temporary writ of injunction was issued restraining defendant from discontinuing such service until such time as the court should direct, and until an accounting might be had, or until'the court should make other order to the contrary.

On September 21, 1942, the defendant filed its motion to dissolve such temporary injunction.

On March 3, 1943, on motion of the plaintiff an order was entered ordering that the order of August 8, 1942, be vacated as to any moneys due from plaintiff to defendant for gas and electric service from and after March 3,1943, and ordering that such injunction remain in full force and effect as to all charges for gas and electric service furnished by defendant to plaintiff accruing prior to March 3, 1943. Thereupon such order ordered that the motion of the defendant to dissolve the injunction granted and issued on August 8, 1942, be denied.

The defendant has brought this appeal to review the order of the trial court denying defendant’s motion to dissolve such temporary injunction.

The three amendments to count five were allowed over the objection of the defendant, and defendant contends that the sufficiency of its motion to dissolve should not be affected by the amendments. We do not consider it necessary to discuss such question for it is our opinion that count five, both as originally filed, and as amended, did not state facts which would justify the issuance of such injunction.

Only three Illinois cases have been called to our attention in which we find discussed the question of the right of a public utility to shut off service because of nonpayment of service charges.

In Barry v. Commonwealth Edison Co., 374 Ill. 473, 476, the court said: “As a general rule a public utility furnishing water, gas or electricity to the public may adopt and enforce as a reasonable regulation that such service to the customer may be shut off from one who has defaulted in payment therefor. (Steele v. Clinton Light and Power Co., 123 Conn. 180, 112 A. L. R. (Anno.) 232.) An exception to this rule, however, is to be observed where there is a bona fide dispute either as to the customer’s liability or as to the correctness of the bill rendered. The right to discontinue service cannot be exercised so as to coerce the customer into paying a bill which is unjust or which the customer in good faith, and with show of reason, disputes. Otherwise, the utility, in effect, would pass judgment upon its own case.”

In Hiller v. City of Pinckneyville, 269 Ill. App. 53, it appears that a physician conducted a hospital, the water supply for which was procured from the city. The physician rendered service to three city employees and made a charge of $25 therefor against the city. The physician refused to pay for water unless the city would credit him with the $25, and for this reason the city thereupon shut off the water. Thereupon the physician obtained a mandatory injunction. A motion of the defendant to dissolve was denied. On appeal the Appellate Court reversed such order of the trial court and in so doing said: “The law is well settled that a city will not be permitted to force the payment of a separate and distinct claim by shutting off the water or to litigate such a claim in a suit for injunction. That being true, appellee cannot litigate in this case the merits of his claim for medical services. If he thinks he has a valid claim he must sue at law. ’ ’

In Barrell v. Lake Forest Water Co., 191 Ill. App. 269 (Abst.), the court held that a public service corporation may shut off water for nonpayment of a bill if there is no overcharge.

In Barrett v. Broad River Power Co., 146 S. C. 85, 143 S. E. 650, the reasons for the rule are well stated. The court there said: “The denial of the usual power of a public service company to cut off its patron’s supply of water or electricity, when there is a bona fide dispute as to the amount due for the service furnished, is founded upon the principle that the patron is not to be penalized, oppressed, or coerced because he asserts his rights as a citizen to dispute, in good faith, a bill of the company. It is not based upon the other idea that the consumer has the right to require a continuance of the service when accounts therefor are not questioned, until there is a settlement of some other account or demand that the consumer may have, or claim to have, against the company, other than one with reference to the service bills. If the latter principle were the foundation of the rule in respect to the mutual rights of the parties as to a continuation of the supply of water and electricity, impecunious and advantage seeking individuals could, by the assertion of almost any kind of demand against a public service company, require it to continue almost indefinitely to supply them with either water or electric current.” (See also Steele v. Clinton Elec. Light & Power Co., 123 Conn. 180, 193 Atl. 613, 112 A. L. R. 232.)

The allegation of count five, as amended, that the defendant “on March 3, 1943, was and still is insolvent,” is a mere conclusion and states no facts on which the conclusion is based. However, if insolvency were well pleaded, so as to be admitted by the motion to dissolve, no authority is cited indicating that, and we can see no reason why, an insolvent utility corporation, indebted to a, particular customer on a charge not connected with a service charge, should, in effect, be required to furnish continued service to such customer although the latter is in default and refuses to pay a bona fide claim for service already furnished him.

Obviously the main purpose of the last amendment was to attempt to show that there was a bona fide dispute either as to the plaintiff’s liability or as to the correctness of the bills rendered by the defendant. By such amendment the plaintiff does not show or even allege that any bill, excluding or including the 2 per cent, was incorrect or unjust. The only allegation as to any dispute is that the “charges ... of 2 per cent had given rise to a dispute.” The complaint does not state the amount of all or of any unpaid service charges, including or excluding the 2 per cent. While the complaint does not state any facts from which it can be determined what such 2 per cent would amount to, the affidavit of plaintiff, filed in support of his motion for leave to file the last .amendment, states that the defendant “owes and is” indebted to plaintiff “more than $7500”, and that the “defendant claims that the plaintiff . . . owes the defendant less than $1500 for electric and gas service,” and further states that while defendant at all times in question has owed plaintiff sums in excess of such service charges, yet defendant has charged plaintiff an additional 2 per cent of each bill because of failure of plaintiff to pay same within 10 days after rendition, and that this charge of 2 per cent has given rise to a dispute as to the correct sum, if any, which plaintiff owes for such service. From these statements in such affidavit, and from the allegation in the amendment that the “charges ... of 2 per cent have given rise to a dispute,” it would seem to follow that the only disputed charge, if any, is 2 per cent of $1500 which would be $30. The effect of the injunction was to not only restrain the defendant from discontinuing service because of the nonpayment of the 2 per cent item amounting to not more than $30, which is not alleged to be unreasonable or unjust, but also to restrain defendant from discontinuing service because of the nonpayment of tona fide undisputed service charges which had accrued over a period of nearly two years immediately preceding the filing of the complaint,— although the complaint made no tender of payment of such undisputed service charges, and although defendant had the right to discontinue service for nonpayment of tona fide undisputed service charges.

The three Illinois cases above referred to were decided prior to the adoption of onr Civil Practice Act (ch. 110, Ill. Rev. Stat.). Paragraph 1 of section 38 of such act [Jones Ill. Stats. Ann. 104.038, subd. (1)] provides that any demand by one or more defendants against one or more plaintiffs, . . . whether in the nature of setoff, recoupment, cross-bill in equity or otherwise, and whether in tort or contract, for liquidated or unliquidated damages, or for other relief, may be pleaded as a cross-demand in any action, and when so pleaded shall be called a counterclaim. Plaintiff contends that by this section he has the right to anticipate a counterclaim of defendant, and thus have continued service from defendant until a final accounting is had. We see no force to this contention.

For the reasons indicated, it is our opinion that the trial court erred in denying the motion of defendant to dissolve the injunction so issued on August 8, 1942.

The order of the circuit court so entered on March 3, 1943, is therefore reversed, and this cause is ordered remanded to the circuit court with directions to that court to dissolve such injunction, and for further proceedings consistent with this opinion.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Dove

license: Public Domain

text:
    Charles R. Aiken, Appellant, v. County of Will et al., Appellees.
    Gen. No. 9,915.

      Heard in this court at the October term, 1943.
    Opinion filed December 28, 1943.
    Rehearing denied February 1,1944.
    Aiken, McCurry, Bennett & Clary, of Chicago, and Krusemark & Krusemark, of Joliet, for appellant; Charles R. Aiken, of Chicago, of counsel.
    James E. Burke, State’s Attorney, for appellees ; Edward R. Nadelhoffer, of Joliet, of counsel.
   Mr. Justice Dove

delivered the opinion of the court.

On May 27, 1942, appellant filed a petition in the circuit court of Will county against appellees for a writ of mandamus to compel the issuance of a warrant to him for $3,266 and' the payment thereof out of the county treasury, on account of his claim for salary as a special State’s Attorney from February 20, 1939 to July 10, 1939, under section 6 of the statute relating to the Attorney General and State’s Attorneys (Ill. Rev. Stat. 1943, ch. 14, par. 6 [Jones Ill. Stats. Ann. 126.054]). On motion of appellees, the trial court entered a judgment dismissing the petition as insufficient in law, and awarding appellees their costs. The cause is here by appeal from the judgment.

The pertinent portions of the section of the statute above mentioned read as follows:

“Whenever the . . . state’s attorney is . . . interested in any cause or proceeding, civil or criminal, which it is or may be his duty to prosecute or defend, the court in which said cause or proceeding is pending may appoint some competent attorney to prosecute or defend such cause or proceeding, and the attorney so appointed shall have the same power and authority in relation to such cause or proceeding as the . . . state’s attorney would have had if present and attending to the same,” and, after providing for the appointment by the county board of some competent attorney to fill any vacancy in that office of more than one year, by death, resignation, or otherwise, further provides: “Such attorney so appointed shall possess all the powers and discharge all the duties of a regularly elected state’s attorney under the laws of the State, and shall be paid by the county he serves the same compensation as provided by law for the state’s attorney of the county, apportioned as to the time of service.”

The petition for the writ, after allegations as to the respective official positions of the respondents, and that the petitioner is a competent attorney, alleges the impanelling of a special grand jury to investigate charges of criminal activity in connection with negotiations to settle, for $125,000, a pending suit by the county against Herbert E. Jones, a former county treasurer, and his bondsmen, to recover a shortage of more than $600,000; the entry of an order by the court, on February 20,1939, finding that the State’s Attorney was interested in the subject matter of the investigation (as a prospective witness), and appointing the petitioner as special State’s Attorney to conduct the investigation, and to prosecute any presentments returned by the special grand jury.

The petition then alleges that immediately afterward, on February 20,1939, the petitioner accepted the appointment, took the oath of office, ‘ ‘ and commenced upon his duties as such special State’s Attorney; . . . That thereafter the special grand jury and the Special State’s Attorney, petitioner, commenced upon an exhaustive investigation into the criminal charges arising out of the County’s suit against Herbert R. Jones and his sureties, commonly called the 'Jones case,’ during the course of which inquiry a large number of witnesses, documents, and books and records were examined and studied”; that the special grand jury made a report to the court on March 16, 1939, and at the same time returned true bills against the former county treasurer and his uncle, Ben D. Jones, charging them with the crimes of forgery and perjury, and that thereupon the special grand jury was ordered to stand adjourned, subject to being reconvened; "that subsequent to the adjournment of the special grand jury, and until July 10, 1931,” the petitioner devoted his entire time and attention to a further investigation of the "Jones case” and its many ramifications, and to the preparation for trial of the pending indictments against Herbert R. Jones and Ben D. Jones; that on June 26, 1939, the petitioner presented a petition to the court requesting instructions as to whether he should continue in the performance of his duties as special State’s Attorney; that he renewed his request on July 10, 1939, but the regularly elected State’s Attorney refused to recommend either that the petitioner be discharged from further service or that he be directed to continue therein, and that thereupon the court accepted the petitioner’s resignation.

It is then alleged that the compensation provided by law for the regularly elected State’s Attorney of Will county is $8,400 per annum; that the petitioner served as such special State’s Attorney for four and two-thirds months, from February 20, 1939 to July 10,, 1939, and that the salary earned by the petitioner during the term of his appointment, as fixed by the statute, amounted to $3,266; that such amount was due on the termination of his appointment, and that thereupon it became the duty of the respondents, under the law, to issue a warrant therefor and to make payment thereof out of the county treasury. It is further alleged that the petitioner presented a verified demand for that amount to the board of supervisors on July 25, 1939, and that up to the time of the filing of the petition herein the board had refused to act upon it, although repeatedly called upon to do so.

The prayer of the petition is for a writ commanding the respondents, and each of them, to do every act and thing devolved upon them by law to effect payment of petitioner’s claim, detailing the usual steps, and praying that if there are not sufficient funds available in the hands of the country treasurer, that a warrant be issued and paid when funds are available, and that the board of supervisors take the statutory steps to make funds available, including the making of an appropriation and the levy and assessment of a tax, and for such other and further or different relief as the nature and exigencies of the case may require and as to the court shall seem meet. The petition was verified and several exhibits were attached-

Among the grounds of the motion to strike were allegations that the alleged services were rendered before a nonexistent and nonlegal special grand jury, as judicially determined by subsequent court proceedings, and were not rendered by a competent attorney, for the reason that all the indictments prepared by the petitioner were subsequently held by the court to be null and void. The motion to strike was not verified, and under section 48 of the Civil Practice Act (Ill. Rev. Stat. 1943, ch. 110, par. 172 [Jones Ill. Stats. Ann. 104.048]), the trial court correctly declined to consider the allegations in the motion of facts not appearing nupon the face of the petition. (Holderman v. Moore State Bank, 383 Ill. 534, 548.)

The theory of appellant, and the allegations of the petition, are to the effect that by the terms of the statute, he is entitled to be paid, as a public officer, the same salary as the regularly elected State’s Attorney for the full time between his appointment and his resignation. Appellees contend that the words “apportioned as to the time of service” mean the time which such an appointee as appellant actually spends in such service, and that therefore the petition shows that appellant’s claim is an unliquidated demand, and that mandamus does not lie to enforce such a demand without a prior judgment.

A public office can exist only through its creation by the constitution or by some statutory enactment. (Ramsay v. VanMeter, 300 Ill. 193, 201.) There is no such provision creating the office of “special State’s Attorney.” A public office can exist only by force of law and it would be a misapprehension to call one an officer who holds no office. The fact that appellant took the oath of office does not mean that he thereby became an officer, when no office was actually in existence. (Krawiec v. Industrial Commission, 372 Ill. 560, 564; Johnson v. Industrial Commission, 326 Ill. 553, 555.) Appellant was not a State’s Attorney, because the statute provides for only one State’s Attorney in a county, and there was an incumbent of that office. While the words “special State’s Attorney” have been used by the courts in several cases, the obviously correct term would be “special attorney for the State,” or “special attorney for the people of the State.” Therefore appellant’s claim that the legal right to an office carries with it the right to the salary, and that the salary follows the legal title, has no application here.

In Lavin v. Board of Commissioners of Cook County, 245 Ill. 496, relied upon by appellant, upon the petition of the State’s Attorney, the trial court appointed a special State’s Attorney to investigate and prosecute alleged frauds in a primary election, at which the State’s Attorney was a candidate for the nomination to succeed himself, and wherein a contest filed by him against his rival candidate, who had been declared nominated, was pending. Lavin, a taxpayer, filed a suit to enjoin the county officials from paying any sums to the appointee or his assistants, on the ground that the State’s Attorney was not an interested party to the prosecution of the frauds, or disqualified for any of the other reasons mentioned in section 6, and that therefore the appointment was void. The Supreme Court held that the appointing court had jurisdiction by the petition, which alleged the petitioner’s interest; that the order was not void because of a mere error <9f the court in exercising its discretion; that the appointee. was at least a de facto special State’s Attorney ; and that a court of equity will not take jurisdiction of a bill of a taxpayer to contest the title to office of a de facto incumbent, or to enjoin him from performing his duties or receiving the fees, salary or emoluments pertaining thereto, the remedy, if any, being at law, by quo warranto. No question was involved as to whether such an appointee was in fact an officer, or whether he should be paid only for his actual services. That case is not persuasive of the correctness of appellant’s contentions in this case.

A special State’s Attorney authorized to be appointed under section 6 does not have all the powers of a State’s Attorney. His powers are limited to causes or proceedings in which the State’s Attorney is disqualified. As to all other matters the State’s Attorney continues to exercise all of the duties and enjoys all of the emoluments of his office. Section 6 does not authorize the appointment of State’s Attorneys such as are required to be elected by the constitution or of any officer having all the powers and duties of such State’s Attorneys. (Tearney v. Harding, 335 Ill. 123, 125.) It does not purport to create any office, or provide that such an appointee as appellant shall become State’s Attorney, even for the time being, or mention a “special State’s Attorney,” but merely provides that under the circumstances mentioned therein, the court ‘ ‘may appoint some competent attorney to prosecute or defend such cause or proceeding,” and limits his power and authority to the particular cause or proceeding. The later language of the same section that “Such attorney so appointed shall possess all the powers and discharge all the duties of a regularly elected State’s Attorney under the laws of the State, ’ ’ manifestly applies to the immediately antecedent provisions for the filling of a vacancy by the county board in the office of State’s Attorney, by which the appointee becomes State’s Attorney, and as such, an officer. We think it is clear that the words “apportioned as to the time of service,” mean, as to a State’s Attorney appointed to fill a vacancy in that office, the time of his service as such officer, and, that as to an appointee such as appellant, they mean the time of actual service. This is demonstrated by the special and limited character of the service to be performed by an appointee such as appellant, while an appointee to fill a vacancy in the office of State’s Attorney, becomes the State’s Attorney.

If appellant’s contentions are correct, then, if such an appointment should be made by the court, after the regular grand jury adjourns, and no steps are taken in the matter to be investigated until another regular grand jury takes it up at some subsequent term, the appointee would be entitled to the same compensation during the whole period, as the regularly elected State’s Attorney, regardless of how much time elapsed between his appointment and the time when the charges are considered by the subsequent grand jury, whether or not the appointee rendered any service during that time. We do not think the legislature had any intention to impose upon the taxpayers of a county, a tax burden of double the amount of the compensation of the State’s Attorney, merely for the benefit of such an appointee, nor except for actual service rendered in a cause wherein the State’s Attorney is disqualified.

Appellant argues that the petition shows that he devoted his'entire time and attention to the matters delegated to him during the whole period between his appointment and his resignation, and that therefore he is entitled to the same compensation for that period as the regularly elected State’s Attorney. The answer to this claim is, that for the period between his appointment and the adjournment of the special grand jury, the only allegation as to his service is that he “commenced” upon his duties, and “commenced” upon an exhaustive investigation, during which a large number of witnesses, etc., were examined and studied. It is nowhere alleged that during that period appellant' was engaged continuously or for any considerable length of time in such activities. The only allegation as to continuous service is that “subsequent” to the adjournment of the special grand jury, he devoted his entire time and attention to such service until July 10, 1939, without alleging how long “subsequent” to such adjournment this latter alleged service began. So far as the petition discloses, it may have begun on July 9, 1939, the day before he resigned. The fact that his prior petition to the court for instructions, a copy of which is attached to the petition for the writ, as an exhibit, alleged continuous service since his appointment, does not supply the deficiency in the petition for the writ. The only allegation in the latter is that such a petition for instructions was filed, without affirming the truth of its allegations.

Mandamus does not lie for the collection of a debt, but is proper to enforce payment of a claim ascertained to be due. This ascertainment is usually by a judgment. Mandamus is not proper where the right of the petitioner must first be established or the duty of the officers sought to be coerced must first be determined. (Bengson v. City of Kewanee, 380 Ill. 244, 250; People v. County of LaSalle, 378 Ill. 578, 580.) Under the applicable statute, appellant’s right to remuneration, if any, depends, not only upon his appointment, but upon whether he rendered any service thereunder, and the time spent in such service. Appellee’s brief indicates that these matters are in dispute. Appellees not only had the right, but it was their duty, to require a legal determination of those questions, and until that is done by reducing the claim to a judgment, there is no basis for a writ of mandamus. (Bengson v. City of Kewanee, supra; People v. County of LaSalle, supra.)

The allegations that petitioner served as such special State’s Attorney for four and two-thirds months, and that the “salary” earned by him amounted to $3,266 for that period, and that upon his resignation it became the duty of the respondents to issue a warrant therefor and make payment thereof out of the county treasury are mere legal conclusions of the pleader, based upon an erroneous hypothesis, and are not admitted to be true by the motion to strike.

Furthermore, the petition is silent as to whether the county has money available to pay such a warrant, and as to whether any appropriation was made therefor. If there be no funds with which to pay a warrant, or no appropriation covering such an expense, issuance of the warrant will not be commanded by the writ of mandamus. It is incumbent upon the petitioner to show a clear right to have it issued. (DeWolf v. Bowley, 355 Ill. 530, 538; People v. Brown, 281 Ill. 390; Bengson v. City of Kewanee, supra.)

Appellant’s claim that under that part of the prayer for such other, further or different relief, he is entitled to a writ to compel the county board to take action upon his claim, is answered by the fact that the board’s refusal to act after repeated demands upon it to do so, amounts to a rejection of the claim (Loewenthal v. People ex rel. Raymond, 192 Ill. 222; Board of Supervisors v. Commissioners of Highways, 66 Ill. App. 50), obviating any reason or basis for such a writ.

It has long been the settled rule in this State that a relator in mandamus must show a clear and undoubted right to the relief prayed, and a corresponding duty on the part of the respondent to do the act sought to be compelled. (People v. Whealan, 356 Ill. 328, 334.) It is incumbent upon the person seeking the extraordinary aid of a mandamus to set forth in his petition all the facts specifically, which, if true, would be necessary to entitle him to the relief sought and he must show a clear prima facie case to warrant the writ. (High’s Extraordinary Legal Remedies, 3d ed., sec. 450.) The question is not how long appellant was such appointee, but it is how much time he spent in connection with the particular matter for which, and no other, he was employed.

Because of the above mentioned insufficiencies in the petition for the writ, it is unnecessary to discuss other matters urged by appellees. The trial court correctly struck the petition and dismissed the suit, and the judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Huffman

text:
    Elmore H. Stafford et al., Appellees, v. Carl J. L. Wessel, Appellant.
    Gen. No. 9,916.
    Heard in this court at the October term, 1943.
    Opinion filed December 28, 1943.
    Rehearing denied January 31, 1944.
    Leo J. Herbert, of Rock Island, for appellant.
    Stafford & Schoede and Edvard O. Schoede, all of Rock Island, for appellees.
   Mr. Justice Huffman

delivered the opinion of the court.

This is an action in mandamus by appellees as trustees of the police pension fund for the city of Bock Island, against appellant in his official capacity as city treasurer of said city, to compel appellant as such city treasurer to place to the credit of the police pension fund certain money in his hands arising from sources enumerated in sec. 892, ch. 24, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 100.257]. The trial court awarded the writ and the defendant,' city treasurer, brings this appeal.

The petition was filed pursuant to provisions of the Police Pension Fund Act. It is charged that for the fiscal year of the city ending March 31,1942, appellant had in his hands the sum of $8,450.40, which arose from the sources designated by said sec. 892 of the act. The petition charged that pursuant to said act, it was the duty of appellant to place to the credit of appellee board the full sum of $8,450.40, and that his act in placing to the credit of such board for said year the sum of $5,000, was not in compliance with the terms of the statute, and although demand had been made upon him by appellee board to place to its credit the balance of $3,450.40, appellant had refused so to do.

Appellant denied it became his duty by virtue of the act to place more than $5,000, to the credit of appellee board out of funds arising from the sources specified therein, for the year in question. It is the position of appellant that pursuant to the proviso of subsection 9 of sec. 892, a maximum of $5,000, was provided for, and that this was the limit appellee board was entitled to have placed to its credit for any one year. It is the position of appellees that the proviso is not controlling, and appellant under the act is charged with the duty of placing to the credit of such board for the benefit of the police pension fund, all of the money coming into his hands from the sources designated.

It appears by subsection 9 that if the aggregate amount accruing to the credit of the police pension fund shall exceed $5,000, in any one year, from all the sources specified in the act, such aggregate sum shall be reduced to the designated total of $5,000. This situation arises by the proviso contained in said subsection 9. The disposition of this case rests with the consideration of this proviso in relation to the enactment to which it relates.

It was the conclusion of Lord Coke that no real distinction existed between a saving clause and a proviso. He considered each of them something engrafted on a preceding enactment. And today, it is generally considered that each is a limitation or exception to a grant made or authority conferred. The office of each is to except some particular case or situation from a general principle or enactment. Their effect is to qualify, restrain, or otherwise modify the general language and enacting clause.

The purpose and function of a proviso are those of limiting the language of the enactment, and its effect is to restrict the general language used, to the prescribed and defined limits. Its effect upon the limitation or exception to a statute is general in application, and its purpose is simply to qualify the language of the enactment in the manner indicated. The sound interpretation and meaning of a statute which contains a proviso, are that the enactment and the proviso shall be taken and construed together. Thus it is clear that its effect must reach and control the construction of the general language of the enactment, so far as the applicability of the proviso extends. Since its office and function are to restrict the general language used, it is to be limited to the objects fairly within its terms and should be considered in relation to the enactment to which it relates in such a manner as to give effect to the legislative intent.

If it be assumed the sum of $5,000, had no pertinent connection with the amount intended to go into the pension fund each year, there would have been no object in the legislature inserting such figure in the act. Had the legislature not intended to fix a sum to be paid into the fund, there would have been no object in its inserting any figure in the act, or in adding the proviso.

It is our conclusion that it was the intent of the legislature to limit the amount to be paid into the police pension fund to a yearly maximum of $5,000, and that such is the effect of the proviso in subsection 9. We find no repugnancy existing between the principal object of the act and the proviso, to destroy its validity. This intent is further evidenced by the amended act of 1943 (sec. 892, subsec. 9, ch. 24, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 100.257]), which subsection 9 provides that the aggregate amount contributed to the police pension fund in any year may by ordinance of the common council be limited to $5,000. We thus see that the legislature in the amended act now in force, carried forward the same figure used by the former act.

In view of the foregoing, the judgment of the trial court is reversed.

Judgment reversed.


author: Mr. Justice Scanlan

text:
    Eunice Palmer and Edwina Harvey, Minor, by Eunice Palmer, Her Mother and Best Friend, Appellees, v. Stanley De Filippis et al., Appellants.
    Gen. No. 42,152.

      Heard in the second division of this court for the first district at the February term, 1942.
    Opinion filed January 18, 1944.
    Rehearing denied February 8, 1944.
    Joseph I. Bulger, of Chicago, for appellants ; Joseph I. Bulger and Henry O. Nickel, both of Chicago, of counsel.
    Ben Copple, of Chicago, for appellees; Meyer Silverstein, of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Eunice Palmer and Edwina Harvey, a minor, by Eunice Palmer, her mother and best friend, filed their complaint against Stanley De Filippis and Angeline De Filippis for personal injuries alleged to have been sustained in an accident. Prior to the trial plaintiffs were given leave “to amend all pleadings and records of the court in the above entitled cause on their, face instanter, so that the title of the defendants shall read Angeline Albergo instead of Angeline De Filippis. Thereupon the Court appoints Angeline Albergo as guardian ad litem for the minor defendant, Stanley De Filippis.” The case was tried by the court without a jury.

The complaint, consisting of four counts, charges each of the defendants with general negligence, specific acts of negligence, and wilful and wanton conduct in the operation of the automobile that struck and injured plaintiffs.

At the conclusion of the evidence the trial court entered a judgment finding defendants guilty, and further finding:

“From the evidence adduced herein, the court finds the defendant, Stanley De Filippis, guilty of wilfully and wantonly committing the acts which proximately caused the injuries of plaintiff, Eunice Palmer, as alleged in his complaint and that malice is the gist of the action herein.

“Therefore it is considered by the court that malice is the gist of the action as to the defendant Stanley De Filippis.

“Therefore it is considered by the court that the plaintiff, Eunice Palmer do have and recover of and from the defendant, Stanley De Filippis and Angeline Albergo, her said damages of Three Thousand Dollars in form as aforesaid by the court assessed.

“It is further considered by the court that the plaintiff, Edwina Harvey, a minor suing herein by Eunice Palmer, her mother and best friend, do have and recover of and from the defendants Stanley De Filippis and Angeline Albergo, her said damages of One Thousand Dollars in form as aforesaid by the Court assessed together with their costs and charges in this behalf expended and have execution therefore. . . .”

Defendants appeal from the judgment entered.

The first contention is that “the evidence does not sustain the court’s finding that the defendant, Stanley De Filippis, was guilty of wilfully, wantonly and maliciously injuring the plaintiffs.”

Eunice Palmer, a plaintiff, testified that she was thirty-four years old and that Edwina Harvey, a plaintiff, is her daughter; that on March 10, 1941, at about 4:30 p. m., she and her daughter were walking in an easterly direction on the north side of Madison street and that when they reached Washtenaw avenue they crossed that street; that they then started to cross Madison street at the east crosswalk of Madison street and Washtenaw avenue; that before they started to cross Madison street they saw the automobile in question at California avenue, which is one block west of Washtenaw; that at the time of the accident they were in the east crosswalk between the east and west bound street car rails and they were walking fast; that she heard a horn, looked up, and saw the automobile in question about ten feet from them; that it was coming very fast, about forty-five miles per hour; that she attempted to throw Edwina out of the path of the car but it struck them both; that the car did not slow down nor swerve and that the front bumper of the car struck her and threw her about fifteen feet in front of the car; that Edwina was thrown to the right of the car and after the contact both of them were lying in the street car rails; that while she was lying on the ground she raised herself partly and saw the car in question stop on Madison street about half a block away from the crossing. Upon cross-examination she testified that when she first saw the automobile in question it was about a block away; that there was no traffic on the street going either west or east and she had a clear view of the street; that she looked both ways before crossing and saw this car a block away; that it had been raining all day and the pavement was wet; that there were no cars double parked on either side of Madison street; that she heard the car tooting its horn when it was about ten feet away from them; that the car did not slow down and it was going very fast; that she was then in the center of the street; that she jerked her daughter away in an attempt to save her.

Edwina Harvey, a plaintiff, testified that she was fourteen years of age and a high school student; that she and her mother were walking east on the north side of Madison street and they crossed over to the east side of Washtenaw; that she looked in both directions before crossing Madison street and saw the automobile in question about a block away; that she was walking with her mother across Madison street on the east pedestrian walk on Washtenaw avenue when the car struck them; that it was going very fast; that her mother pulled her to one side but the car struck her anyway; that she first saw the car when it was about a block away, coming from the west, as they were about to cross Madison street; that there was nothing in front of the car and she had a clear view from the corner; that she next saw the car when it was about fifteen feet from them; that she and her mother were then about in the middle of the street between the east and west bound rails; that she heard the car sound its horn; that the car did not stop after it struck them but went for about a half a block before stopping. Upon cross-examination she testified that before they started across Madison street going south she looked both ways and there was no traffic going either way on Madison street; that the car was about a block away and there were no trucks or cars in front of it; that it was raining hard that day and the street was very wet.

Plaintiff also introduced a statement made by Stanley De Pilippis to the police about half an hour after the accident. In that statement he stated that he was eighteen years of age and a high school student; that he had been driving an automobile for nine years; that his mother, Angeline De Pilippis, owned the car in question; that he had been driving that car for four years; that just before the accident he was driving east on Madison street at fifteen to twenty miles per hour; that the street was wet; that there were no obstructions. ‘1Q. Now go ahead in your own way and tell how the accident happened, and all you know about the case f A. I was driving my mother’s car east on Madison Street. As I approached Washtenaw Ave. I was driving about 15 to 20 miles per hour. When my car still half a block west of Washtenaw Ave. I saw a woman and a young girl walking south across Madison Street. They were crossing in the middle of the block. They were about the middle of Madison Street when I first saw them and my car was about 5 feet from them. I stepped on the brakes and blew the horn. My car skidded on the bricks. The left front of my car struck them and knocked them down. I stopped my car after I had pulled to the curb. The Police arrived and took them to the hospital. Q. With reference to this accident, how far did your vehicle go after the accident before coming to a complete stop? A. About 5 feet. , Q. How far was this person away when you first observed her? A. About 5 feet. Q. Was anyone with you at the time of the accident? A. Yes. My mother and one sister & 2 brothers. Q. Were there any other automobiles on the street at this place at the time of the accident? A. No. Q. What was the condition of your brakes (foot or emergency) at the time of the accident? A. Very good. Q. How was the visibility, how far could you see ahead, right or left? A. Good. About one block ahead. R & L to the parked cars. Q. Did you have anything intoxicating to drink prior to the accident? A. No. Q. Is there anything else you would like to say? A. Nothing else.’’ (Italics ours.) Stanley was called by plaintiffs to testify under Section 60 of the Civil Practice Act. He testified that he started to drive east on Madison street in Oak Park; that his mother and two brothers were sitting in the back seat and his sister Rosetta was sitting in the front seat with him; that there were trucks and cars parked 'along the curb on the south side of Madison street and at some places they were double parked; that in the middle of the block between California avenue and Washtenaw avenue he “went over to the center of the street between the street car rails,” and that he was in second gear when he approached Washtenaw avenue; that “I saw some women when I was a half a block away from Washtenaw and Madison Street. They were walking South on the East crosswalk of Washtenaw and Madison Street. I was going about fifteen miles per hour. I saw these women when they were about fifteen feet in front of me when I came to the intersection of Washtenaw and Madison Street. The left side of the car was between the East and West bound street car tracks. They were in the middle of the street. I tooted my horn and put my brakes on. I did not turn my car. I couldn’t because cars were double parked on my right. I skidded. It was impossible to avoid the accident. When I first saw the plaintiffs they were in the middle of the street between East and West bound tracks about ten feet away. A large truck three feet in front obstructed my view. ... I was looking straight ahead of me. There was nothing obstructing my view. I tooted my horn when I approached Washtenaw.” (Italics ours.) When this defendant was called as a witness in his own behalf he gave a new version of the accident, vis., that when plaintiffs were walking south he saw them look toward his car about the time he tooted his horn and saw them turn around to go north and then turn once again and run south into the path of the automobile he was driving; that there was traffic going east; that they came from behind an automobile; that a street car was coming from the east going west. Upon cross-examination he admitted that when he was first called as a witness in the trial he had testified that he saw the women when he was about half a block away from Washtenaw avenue, and he further admitted that there was no traffic nor cars ahead of him. •

Bosetta De Filippis, the sister of Stanley, testified that she was riding in the front seat with her brother ; that it was raining at the time but the windshield wipers were working; that she could see in front of her and she saw two ladies walking south at Washtenaw and Madison street when the car was about fifteen feet away; that they were about in the middle of the street between the east and west bound street car tracks; that her brother tooted the horn and put on the brakes and skidded about five feet when the women, were struck; that the car was going about fifteen miles an hour and it came to a stop immediately after the collision; that there were cars parked on both sides of the street at the curb; that when plaintiffs were about in the middle of the street and walking south they looked toward the car in which she was -riding and looked east and then turned around to go north and turned again to go south, at which time the car reached them. Upon cross-examination she testified that she had a clear view ahead of her and that when she first saw plaintiffs they were twenty to twenty-five feet east of the car.

Anthony De Filippis, the brother of Stanley, testified that he was sitting in the back seat with his mother and other brother and did not see the accident.

Angeline De Filippis Albergo, the mother of Stanley, testified that she owned the car in question but that she did not drive an automobile; that she did not see the accident but heard Stanley toot his horn when near Washtenaw, heard him apply the brakes and that the car was going very slow at the time of the accident.

This case was tried by an experienced judge, who saw and heard the witnesses, and he believed the testimony of the two plaintiffs as to how the accident happened. He refused to believe the last testimony given by Stanley De Filippis, that just before the collision plaintiffs came from behind an automobile, looked up and saw his car and then turned to go north and then turned once again and ran south into the path of the automobile. Neither in a statement to the police immediately after the accident nor in his testimony when he was first called as a witness under Section 60 of the Civil Practice Act did Stanley make any such claim. In this connection it must be noted that when he made his statement to the police he was aéked the following question: “Q. Now go ahead in your own way and tell how the accident happened, and all you know about the case?” and that in answer to this question he made no mention of any fact that would tend to support his last testimony as to how the accident occurred. Moreover, at the close of his interrogation by the police the following occurred: “Q. Is there anything else you would like to say? A. Nothing else.” The trial court was fully justified in finding that Stanley saw plaintiffs crossing the street at the east crosswalk of Washtenaw avenue and Madison street when he was a block away, or at least half a block away; that plaintiffs had the right of way and that it was Stanley’s duty to afford them a reasonable opportunity to cross the intersection; that instead of doing so he wilfully and recklessly drove the automobile over the intersection at an excessive rate of speed, and failed to keep his machine under such control as to enable him to avoid the accident; that he knew that the pavement was very wet and slippery. The amazing fact appears that Stanley’s mother has used him to drive a car for her since he was nine years of age. The court was fully justified in believing that the claim he finally made as to the actions of plaintiffs just before the collision was false and a mere afterthought.

In Fickerle v. Seekamp, 274 Ill. App. 310, we said (pp. 318, 319): “Our Supreme Court has frequently stated that it is difficult if not impossible, to lay down a rule of general application by which to determine what degree of negligence the law considers equivalent to a wilful and wanton act.

‘ ‘ 1 Courts have recognized the difficulty of accurately stating under what circumstances a defendant may be held guilty of wilful and wanton misconduct in causing an injury. Such conduct imports consciousness that an injury may probably result from the act done and a reckless disregard of the consequences.’ (Brown v. Illinois Terminal Co., 319 Ill. 326, 331.)

“ ‘Whether the negligent conduct of a defendant which has resulted in injury to another amounted to wantonness is a question of fact to be determined by the jury, if there is any evidence in the record fairly tending to show such a gross want of care as indicates a willful disregard of consequences or a willingness to inflict injury.’ (Walldren Express Co. v. Krug, 291 Ill. 472, 476. See also Jeneary v. C. & I. Traction Co., 306 Ill. 392, 397.)”

In Jenkins v. Goodall, 183 Ill. App. 633, where the facts were somewhat similar to the facts in the instant case, the court said (pp. 636, 637):

“He saw plaintiff in the center of the street attempting to cross. He could have checked his speed and prevented striking her. By sounding the horn he expected her to stop and remain in the center of the street, until he passed. The evidence fairly establishes the rate of speed he was going to be at least fifteen miles an hour. And he was thirty-five or forty feet from her when he sounded the horn. He made no effort to check his speed until he was within five or six feet of her. Ordinary care certainly required more than that. He relied on her to exercise all the judgment and care necessary to prevent injury, while he in the management of a powerful, swift moving machine assumed superior rights to the use of the street as against ones attempting to cross it. He was required under the circumstances to keep a proper lookout for persons on or about to cross over said street and keep his machine under such control as to enable him to avoid collision and if necessary to prevent injury to stop. Kessler v. Washburn, 157 Ill. App. 532; Johnson v. Coey, 237 Ill. 88.” (See, also, Fickerle v. Seekamp, supra.)

In the instant case the driver of the car testified that he sounded his horn when he was within fifteen feet of plaintiffs. In the Fickerle case we stated (p. 320): “It is undisputed that the only time he sounded his horn was when the truck was within 15 feet of the deceased. It would be idle to argue that sounding the horn at that time, in view of the speed at which the truck was being driven, was a reasonable warning of its approach. Such a warning, under the circumstances, would be more likely to frighten and confuse the deceased than to aid him, whereas, had the horn been sounded in reasonable time the deceased could have avoided the onrushing truck. ’ ’

There were no stop lights at the intersection in question.

Section 74 of the Uniform Act Regulating Traffic on Highways, par. 171, of the Motor Vehicles Act (ch. 95½, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 85.203]), provides, inter alia:

“(a) Where traffic control signals are not in place or in operation the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection, except as otherwise provided in this article.”

In the instant case the evidence shows conclusively that plaintiffs had the right of way at the time in question. The trial court found that defendant Stanley De Filippis was guilty of wilful and wanton conduct which caused the injuries to plaintiffs, and we approve of that finding.

Defendants next contend that the “damages awarded the plaintiffs are not supported by competent evidence and are excessive.” The trial court awarded Eunice Palmer $3,000. She testified that as a result of the collision she sustained a fractured nose, two cracked ribs, two black eyes, a broken leg, a tear in the right knee which required seventeen stitches, and a lacerated left shin bone, cut three inches long, and that she still suffers pain in the leg which was fractured; that she sustained expenses in connection with her injuries ; that she was in a hospital for five days and her leg was placed in a plaster cast; that she was compelled to remain at home for nineteen weeks and to use crutches in order to get around; that her doctor came to the house about four times and after that she went to his office about once a week; that she had a practical nurse to care for her and her daughter and paid her fifteen dollars per week; that after the accident she and her daughter were taken to the Presbyterian hospital in a police ambulance; that X-rays were taken at the hospital; that because of the pains in her leg she sometimes has difficulty in walking; that her ankle swells up at times; that she paid the Presbyterian hospital thirty dollars on her own account and nineteen dollars on account of her daughter; that she has only partly paid the doctor’s bill. The trial court awarded Edwina Harvey $1,000 damages. She testified that she sustained a fractured leg, which was kept in a cast for five weeks, and that she was compelled to use crutches for seven weeks; that the doctor came to see her at the home several times, after which she went to his office in a taxicab. The principal point made by defendants in support of the instant contention is that plaintiffs failed to call a doctor to testify as to their injuries, that to determine the amount of the damages actually sustained medical testimony was essential, and that the damages awarded by the trial court were based upon guesses and speculation. It appears from the record that after Eunice Palmer had testified that she had received “& fractured nose, two cracked ribs, two black eyes, a broken leg, a tear in the right knee which required seventeen stitches, lacerated left shin bone, cut three inches long,” an objection was made by defendants’ attorney to the questions and answers as to the said injuries “on the ground that the same is hearsay and not the best evidence and self-serving statement.” This objection was overruled. In support of the instant contention Rose v. Chicago City Ry. Co., 207 Ill. App. 345, is cited. There it was held that in a personal injury action the opinions of medical experts are essential for the guidance of a jury as to alleged infections, their causes and progress, as such matters left to the guesses of the uninformed would make possible damages based solely on speculation and not upon evidence. No question of damages akin to infections was here involved. The law does not require that plaintiffs in every personal injury case produce a doctor to testify as to injuries alleged to have been sustained. Nor did defendants contend at the time of the introduction of the testimony in question that it was necessary for plaintiffs to produce medical experts to testify as to their injuries. It is customary for plaintiffs in injury cases to testify as to injuries they claim they received. If the instant contention of defendants is sound, then if a plaintiff lost an arm or a leg in an accident he would be compelled to call a doctor to testify to that fact. Defendants complain that the trial court allowed Eunice Palmer to testify that the hospital took X-rays; but the witness did not attempt to state what the X-rays showed, and there is no merit in the complaint. The amount of damages fixed by the trial court was fully justified by the evidence. Indeed, plaintiffs might well complain that the damages awarded are inadequate.

We are satisfied that the contention made that plaintiffs were guilty of contributory negligence is without the slightest merit.

The last contention is that “the court owes a duty to see to it that minors are properly represented and their rights and interests are safeguarded.” Defendants concede that an appearance and answer were filed in behalf of Stanley De Filippis, a minor and a defendant, by Attorney Joseph I. Bulger, and that plaintiffs, prior to the hearing of evidence, made a motion, which was allowed by the court, appointing Angeline De Filippis Albergo, Stanley’s mother, guardian ad litem for Stanley De Filippis, a minor. The record affirmatively shows that neither the guardian ad litem nor Mr. Bulger made any objection or suggestion in reference to the motion. But Mr. Bulger, who acts in this court for Stanley De Filippis, a minor, and Angeline De Filippis Albergo, guardian ad litem for Stanley De Filippis, a minor, and Angeline De Filippis Albergo, states that the record fails to show that any motion was made by plaintiffs or the court that the answer previously filed in behalf of the minor by Mr. Bulger be amended or adopted as the answer of the newly appointed guardian ad litem for and on behalf of herself as such or in behalf of the minor, and the record fails to show that plaintiffs made any motion to appoint counsel for the guardian ad litem, and that this procedure left the guardian and the minor without a proper answer to the complaint, and, “technically speaking, without counsel.” The record fails to show that the guardian ad litem or Mr. Bulger' made any motion or suggestion to the court that counsel be appointed for the guardian ad litem or that Mr. Bulger made any objection to proceeding with the cause in the then state of the pleadings. The record shows that before the trial, and during the trial, Mr. Bulger represented Stanley De Filippis, a minor, and that upon this appeal he also represents the guardian ad litem. Indeed, in the notice of appeal Mr. Bulger signs himself as the attorney for the guardian ad litem of Stanley De Filippis, a minor. When Stanley De Filippis was called as a witness on behalf of plaintiffs under Section 60 of the Civil. Practice Act Mr. Bulger objected to his being called as a witness. He called Stanley as a witness in his own behalf and examined him. Acting for Stanley Mr. Bulger made a motion to dismiss the counts in the complaint that charged wilful and wanton misconduct by Stanley on the ground that the evidence was insufficient to sustain the charges. Counsel fails to point out where any substantial right of the minor was impaired in the proceedings in the trial court. If there had been a formal order entered that the answer filed by Mr. Bulger was adopted as the answer of the guardian ad litem the minor would have had no greater right than he had throughout the trial in making his defense. Had the trial court entered an order appointing an attorney for the guardian ad litem he would have undoubtedly appointed Mr. Bulger. Mr. Bulger is an able and experienced lawyer and he does not contend nor suggest that in the defense of the cause he was handicapped in any way by the fact that the court did not formally appoint him attorney for the guardian. Had the trial court, without the consent of the guardian ad litem, appointed an attorney for the guardian ad litem other than Mr. Bulger, the guardian ad litem might then have had some cause for complaint, especially if her interests were not fully protected in the trial of the case by the attorney appointed by the court. As to the contention that the record fails to show that the answer in behalf of Stanley De Filippis, a minor, was formally adopted as the answer of the guardian ad litem, it is sufficient to say that the guardian ad litem, through Mr. Bulger, appears to have been satisfied to have the case tried upon the answer as it then stood, and the instant contention now raised for the first time will not avail her. Defendants cite three cases in support of their contention, Peak v. Pricer, 21 Ill. 164, 165; Bellchambers v. Ebeling, 294 Ill. App. 247, 255, and Millage v. Noble, 334 Ill. 315, 320, 321.

In Peak v. Pricer it appears that Peak was a minor and that the court appointed W. E. Nelson his guardian ad litem, who filed pleas for his ward. Nelson was an attorney and he entered his appearance as attorney for Shasted, the other defendant, and on the same day “pleas were withdrawn by agreement of parties, and judgment was entered against the defendants.” The pleas that were filed on behalf of the minor were non assumpsit and infancy. The minor sued • out a writ of error and claimed that the trial court suffered the guardian ad litem of plaintiff in error to withdraw the pleas that had been filed in his behalf and to agree to a judgment against him. The Supreme Court held (p. 165): “After the guardian was once appointed, and until he was discharged or removed by order of the court, the defense could only be conducted by him, and it became his duty to make a proper defense for the infant, and also the duty was imposed on the court to see that such defense was made, or, at least, to see that some defense was made. It was error, therefore, for the court to allow the plea which had been filed by the guardian, to be withdrawn by him, and to render a judgment by default against the infant.” No such situation is present in the instant case and the rule announced by the Supreme Court is a wholesome one that prevents guardians ad litem from abandoning the defense in suits against minors.

Bellchambers v. Ebeling states the general rule that the appointment of a guardian ad litem is necessary in order to protect the interests of a minor in the trial of a cause and that when the trial court does not appoint a guardian ad litem for a minor defendant at the proper time the error may be availed of on appeal for the first time, and if the error be of such serious nature as to justify reversal there could be no complaint because the objection was not included as one of the errors in defendant’s motion for a new trial. In that case the guardian ad litem was not appointed until after the trial of the cause and just before the trial court overruled the defendant’s motion for a new trial.

In Millage v. Noble the court states (pp. 320, 321): “When the interests of an infant are called to the attention of the court and the infant himself has been brought into court he becomes the ward of the court, and it is the latter’s duty to see that his rights are properly protected. If the general guardian who undertakes the performance of this trust, or a guardian ad litem, fails to properly protect the interest of his ward, it is the duty of the court to compel him to do so, or if for any reason he can not act in that capacity he should withdraw and another guardian should be appointed. (Tymony v. Tymony, 331 Ill. 420; Rhoads v. Rhoads, 43 id. 239; Reddick v. State Bank, 27 id. 145; Sconce v. Whitney, 12 id. 150; Hitt v. Ormsbee, id. 166; Enos v. Capps, id. 255.) The interests of the minor, Lester Hudson, were not properly represented in the trial court, and we cannot pass upon the merits' of the case concerning his rights in the present condition of the record. Linebaugh v. Atwater, 173 Ill. 613.” In that case it appears that the guardian ad litem had been appointed guardian for two incompetent persons whose interests were antagonistic, and the Supreme Court held, of course, that another guardian should have been appointed for Lester Hudson.

No case has been cited by counsel for the guardian ad litem that holds that where a trial court appoints a guardian ad litem he must also, regardless of the situation, appoint an attorney for the guardian ad litem. The guardian ad litem had the right to ask the court to appoint counsel and it was her duty to do so if she deemed it necessary. (22 Cyc. 665.) In the instant proceeding, the trial court had a right to assume that Mr. Bulger would, in fact, represent the guardian ad litem and that he was well able to fully protect the rights of said guardian. Mr. Bulger does not and would not contend that he did not ably and fully protect the rights of the guardian ad litem and the minor, but he merely argues that they were, “technically speaking, without counsel. ’

Defendants have had a fair trial and the judgment entered in this cause and the special finding of the trial court are affirmed.

Judgment and special finding affirmed.

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


author: Mr. Presiding Justice O’Connor

text:
    Jack Simon, Appellee, v. Maurice I. Kaplan, Appellant.
    Gen. No. 42,750.
    Heard in the first division of this court for the first district at the October term, 1943.
    Opinion filed January 24, 1944.

      Lord, Bissell & Kadyk, of Chicago, for appellant.
    Finn & Fitzpatrick and Frank P. Kronenberg, all of Chicago, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought an action against defendant to recover damages claimed to have been sustained by him through the negligence of defendant, a physician, in the use of an x-ray machine on plaintiff’s face in an endeavor to cure barber’s itch. There was a verdict and judgment in plaintiff’s favor for $4,500 and defendant appeals.

The record discloses that defendant is a physician licensed to practice in Illinois since 1913, and for a number of years has been associate professor at the Chicago Medical School where he teaches radiology two days a week and where he holds a clinic Friday afternoons for a group of students; that since 1922 his practice has been limited to the use of x-ray in the diagnosis and treatment of ailments; that plaintiff, who was about 45 years of age, had been employed for a number of years as a shoe salesman and was troubled with what is commonly known as “barber’s itch” which developed about February, 1941. May 17, 1941 he went to the clinic at the Chicago Medical School, and after an examination was referred to defendant because the clinic had no x-ray machine, and on May 29 defendant treated plaintiff’s face using an x-ray machine.

The evidence is further to the effect that at and before the time plaintiff went to the clinic his face was swollen, many pustules were exuding pus, the skin on his face was cracked and bleeding and there were some scabs.

Defendant’s testimony is to the effect that he used the machine 3% minutes on each side of plaintiff’s face where it was affected; that the machine was automatically shut off by a time mechanism at the end of 3% minutes, while plaintiff’s testimony is to the effect that each side of the face was treated about 10 minutes. After the treatment the doctor told plaintiff to return in about 10 days but he did not return until about two weeks, at which time his face was red and at that time defendant gave him some salve and told him to return in about a week or ten days, when defendant would give him another x-ray treatment. Plaintiff did not retufn and did not see any doctor until June 19, when he saw Dr. Caro, a skin specialist, who thereafter treated him two or three times a week at first, later about twice a month and then saw him about once a month to the time of the trial which began January 4, 1943.

Dr. Caro, a licensed physician, called by plaintiff, gave testimony to the effect that he had many years of experience in the field of diseases of the skin — dermatology — and had been engaged in the treatment of skin diseases for a number of years. He described the condition of plaintiff’s face when he first treated him on June 19, 1941; that plaintiff was troubled, with the so-called barber’s itch; that he diagnosed plaintiff’s condition as “an acute dermatitis, produced, probably, by radiation. That is x-ray. ’ ’ That he treated plaintiff a number of times after that day and his condition improved in September or October, 1941. That “At the present time he shows the effects that we usually see in chronic x-ray burn;” that “I use x-ray in my work and have used it since 1928, for fourteen years. I use it in my work only in treating skin conditions. I have had occasion to treat x-ray burns in my practice . . . I have treated at least ten or fifteen cases of x-ray burns in a year.” And he gave as Ms opinion that if proper dosages of x-ray were applied the hair of the face should not fall out permanently, that “atrophy of the skin with discoloration and enlargement of the veins should never follow with the dosages that are ordinarily used.”

Dr. Uhlmann (called by plaintiff) a licensed physician for many years, who appears to have been qualified, testified that he specialized “in radio-therapy, x-ray, diagnostic and therapeutic:” that he had used x-ray in his work since 1925; that he was familiar with the customary use of x-ray in the treatment of barber’s itch; that he had had experience with x-ray burns for the past 14 years; that he saw plaintiff a few days before the trial and observed in his face several signs of disease which he proceeded to mention; that the condition he found on the upper part of the face “could not be due to barber’s itch or the after effects of barber’s itch.” In answer to a hypothetical question he testified: “The logical conclusion is that the patient received more x-ray to the upper part than he received in the lower part of his cheeks;” that in his opinion, the treatment mentioned in the hypothetical question “would not be usual and customary for a specialist to apply enough x-ray to bring about a condition of atrophy of the skin, thinning of the skin, with erosions.”

Defendant in his own behalf testified that he had been a licensed physician since 1913, and mentioned further facts to show that he was qualified to treat patients for barber’s itch. “In 1914 I began to do x-ray work and gradually went into that until about 1922, when I quit general practice and went into x-ray work exclusively. In 1917 or ’18 I became the head of the x-ray department of the Mt. Sinai Hospital of Chicago and maintained that position until 1934.” During that period he had taken courses at Johns Hopkins, the Mayo Clinic and Washington University. “Since 1922 I have limited my practice entirely to radiology, and that is the practice of x-ray diagnosis and x-ray therapy.” That he maintains an office in Chicago and for 10 or 12 years has been associate professor at the Chicago Medical School. “I teach the seniors radiology, and on Friday afternoons I hold a clinic there where I have groups of students. ‘Radiology’ is the science of x-ray.” That he treated plaintiff on May 29, 1941, plaintiff having been sent to the doctor from the clinic, and found “numerous pustules with a redness all over his face including his lips, . . . His face was quite swollen. Many of these pustules were exuding pus. There were many areas that were cracked and they were bleeding, and the incrustations on the face were caused by the exudation of the serum together with the pus and blood, and they were vari-colored from pink to a greenish yellow.” That plaintiff was suffering from what was commonly known as “barber’s itch.” That he applied the x-ray machine 3% minutes to each side of plaintiff’s face. That “It is common after an x-ray exposure on an inflamed surface, that the skin becomes red, and after that redness or erythema subsides, then another x-ray exposure is given. That is the common practice and I have been practicing on patients right along for the last thirty years.” He further testified that he had been treating cases of barber’s itch, about 200 of them, before he treated plaintiff and that he had treated many cases since that time. That “The treatment that I gave the plaintiff on May 29,1941, was the same kind of treatment ordinarily and customarily given by me to patients suffering from the barber’s itch. In fact, he received a less number of R units than I have given to quite a number of others.”

On cross-examination he testified he gave plaintiff 217 R units on each side of the face making a total of 434. Defendant produced a card which he had prepared as a part of his office record at the. time he treated plaintiff on which it appears that he gave defendant “three and a half minutes to each side of the face, 500 R.” And continuing on cross-examination he testified with some uncertainty and hesitation that the 500 B which appeared on the card was the number of units he intended to give plaintiff and that he had not given him more than 217 B’s during the treatment, on each side of the face.

Dr. James T. Case, called by defendant, testified that he was a “radiologist and physician, practicing specialty radiology.” That he was a graduate of many schools and was professor of radiology in the Northwestern University Medical School in 1912 and was head of the x-ray department from that time to the present — a period of 31 years. That his practice hád been confined almost wholly to radiology. “That means x-ray and radium.” That he had treated 200 or 300 cases of barber’s itch by x-ray. In answering a hypothetical question he testified that a total dosage of 500 B units to be given in two different treatments, “I would say that he [the doctor giving the treatments] was quite within the ordinary and usual proper practice.” That if 500 B units were given to each cheek in one treatment, “That would be somewhere near the upper limit of the proper dosage, it wouldn’t be far from it.”

Defendant also called Dr. I. S. Trostler, who testified as to his qualifications and that he had taught x-ray in several Chicago institutions and also had given private lessons to students; that during his practice he had treated 50 or 60 cases of barber’s itch through radiology over a period of approximately 35 years. In answer to a hypothetical question he said that if 217 units were given in the treatment of barber’s itch he would consider that according to the usual practice of physicians of skill in using x-ray in Chicago. And that if the patient was given 500 B units on each cheek in a treatment for barber’s itch he would think this was the proper practice.

Counsel for defendant say that before a recovery can be had in a malpractice case it must be shown by affirmative evidence that the physician was unskillful and negligent and that his want of skill caused plaintiff’s injury. We think this is a correct statement of the law. Lucarelli v. Winters, 320 Ill. App. 359 (Abst.); Wallace v. Yudelson, 244 Ill. App. 320; Schireson v. Walsh, 354 Ill. 40. Counsel further contend that the liability of a physician for injuries caused by the misuse of an x-ray machine rests upon the same principle of law as any other branch of medicine or surgery. We think this is also the law.

It is contended (1) that the court erred in permitting expert witnesses called by plaintiff to answer directly questions that were to be decided by the jury. (2) That the diagnosis of plaintiff’s expert witnesses, that plaintiff’s condition was due to x-ray exposure, is not supported by the facts and (3) that the court erred in instructing the jury.

(1) It is argued by counsel that the medical experts called by plaintiff were permitted to testify directly that the x;-ray treatment caused plaintiff’s condition rather than that it might or could have caused his condition and that this is contrary to the rule of law announced by our Supreme Court in Fellows-Kimbrough v. Chicago City Ry. Co., 272 Ill. 71. It might to some slight extent appear that plaintiff’s expert witnesses testified directly that the x-ray treatment given caused plaintiff’s condition but upon examination of their testimony we think it clear that they were but giving their opinion that the treatment might or could have caused plaintiff’s condition and that the jury were not misled.

(2) Whether the verdict of the jury in plaintiff’s favor (finding in effect that defendant was negligent in applying the x-ray treatment to plaintiff’s face) is supported by the evidence, we are of opinion that we are unable to say that the finding of the jury is against the manifest weight of the evidence. Plaintiff called two experts who gave testimony tending to show that defendant had been negligent in treating plaintiff. On the other side, defendant and two other experts gave testimony to the contrary. In these circumstances we are not warranted under the law, in disturbing the verdict of the jury.

(3) Complaint is made that the court erred in giving instruction Nos. 15 and 16 requested by plaintiff. Each of these instructions was on the question of the amount of damages in case the verdict should be for plaintiff. By instruction No. 15 the jury were told, “If, under a preponderance of the evidence and instructions of the court, the jury find the issues for the plaintiff and that said plaintiff has sustained damages by reason of physical pain and suffering undergone by him as a natural, direct and proximate result of negligence of the defendant, as charged and alleged by the plaintiff” — the instruction continues as to what they should consider in arriving at the amount of the damages. The complaint to this instruction is that it, in effect, told the jury that if they found from a preponderance of the evidence, under the instructions of" the court, that plaintiff suffered damages as a result of defendant’s negligence, it in effect, assumed that the defendant was negligent. We think this objection is hypercritical, and while it would have been better to have told the jury that if they found plaintiff suffered damages as a proximate result of defendant’s negligence, if any, yet it did not direct a verdict, and we think the jury were not misled because they were told in another instruction that “If you believe from the evidence in this case that the defendant used ordinary care and skill in his treatment of plaintiff, and exercised his best judgment in such treatment, then it is your duty under the law to find the defendant not guilty.” Moreover the instruction told the jury they must find plaintiff was damaged as a result of defendant’s negligence “as charged and alleged” by plaintiff in his complaint.

The complaint made to instruction No. 16 is that it told the jury that if they found for the plaintiff from a preponderance of the evidence under the instructions of the court in fixing the amount of damages, if any, they should take into consideration all the evidence pertaining to plaintiff’s injuries which were the proximate result of the failure of the defendant to exercise ordinary skill and care in the application of x-ray treatment and that they should also take into consideration whether plaintiff had been marred in his personal appearance, etc. What we have said about instruction No. 15 is applicable here. Another objection to this instruction is that in fixing plaintiff’s damages the jury might take into consideration plaintiff’s marred personal appearance. In Fitzgerald v. Davis, 237 Ill. App. 488, we held that plaintiff’s marred personal appearance was a proper element for the jury to consider in fixing the damages. We there said: ‘ ‘ The law only prohibited the recovery of damages in such a case for mental suffering which results from embarrassment or chagrin and which suffering has no relation to physical pain. Chicago City Ry. Co. v. Anderson, 182 Ill. 298. She might recover for disfigurement which resulted from the accident.” To the same effect is Nosko v. O’Donnell, 260 Ill. App. 544; Demikis v. One Cent Club, Inc.,.319 Ill. App. 191 and Chicago City Ry. Co. v. Smith, 226 Ill. 178. In the Smith case where the jury were instructed that they might consider plaintiff’s marred personal appearance in estimating the damages, it was held the instruction was warranted. The court there said: “In regard to the first objection [marred personal appearance] pointed out to this instruction, the evidence shows that appellee was more or less disfigured about his face, head and shoulder, . . . when all the evidence is considered, there is a substantial basis in it to warrant the instruction. ’ ’

Of course every one knows that the disfigurement of one’s face which is the result of defendant’s negligence often may cause damages, for example, plaintiff may be unable to secure employment on account of such disfigurement.

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

Judgment affirmed.

Niembyer and Hatchett, JJ., concur.


text:
    Dorothy A. Naas, Appellee, v. Rose B. Peters, Appellant.
    Gen. No. 42,785.
    Heard in the first division of this court for the first district at the October term, 1943.
    Opinion filed January 24, 1944.
    Rehearing denied February 8, 1944.
    Mulcahy, Murphy & Dieringer, of Chicago, for appellant ; Michael F. Mulcahy, William T. Murphy and Henry W. Dieringer, all of Chicago, of counsel.
    Samuel J. Andalman, of Chicago, for appellee.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal defendant, Bose B. Peters, seeks to reverse a decree entered in a foreclosure suit holding her liable for the deficiency of $3,834.45.

The record discloses that plaintiff, Dorothy A. Naas, owned some vacant lots in Niles, Illinois, which on December 31, 1934, she conveyed to Lester B. Peters for $20,000, of which $6,000 was paid in cash, and on the same day, Lester B. Peters executed his notes for $14,000 for the balance of the purchase price, and conveyed the property by trust deed to secure the payment of the $14,000. Immediately following this and on the same day, Lester B. Peters conveyed the premises by quit claim deed to his mother, Bose B. Peters, the defendant. Afterward a number of payments were made on the indebtedness and June 30, 1941, default was made in payment and a suit filed to foreclose the lien of the trust deed for the amount remaining due and unpaid. The cause was referred to a master in chancery who took the evidence, made up his report, a decree of foreclosure was entered, the property afterward sold and Lester B. Peters and his mother, Bose B. Peters, were held liable for the deficiency. The mother alone prosecutes this appeal.

The evidence all shows that Lester, the son, had no money; that the property was purchased by his mother, title taken in his name, that she furnished all the money and that he took title and executed the trust deed and notes merely for his mother. In these circumstances when the title to the property was conveyed to Lester a resulting trust was created, the mother being the real owner of the property and she is liable for the deficiency. Bride v. Stormer, 368 Ill. 524.

The decrees of the superior court of Cook county are affirmed.

Decrees affirmed.

Niemeyer and Hatchett, JJ., concur.


text:
    People of the State of Illinois ex rel. Thomas J. Kelly et al., Appellees, v. Robert J. Dunham et al., Appellants.
    Gen. No. 42,793.

      Heard in the first division of this court for the first district at the October term, 1943.
    Opinion filed January 24, 1944.
    Rehearing denied February 8, 1944.
    John O. Rees, of Chicago, for appellants; Martin G. Loeff, of Chicago, of counsel.
    Michael F. Ryan, of Chicago, for appellees.
   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

By this appeal defendants, Chicago Park District officials, seek to reverse a judgment of the Superior court of Cook county holding them to he in contempt of court for their alleged failure to comply with the judgment entered by the Superior court on June 30, 1942, by which a writ of mandamus was awarded plaintiffs, commanding defendants to reinstate plaintiffs as civil service employees of the Park District.

The record discloses that plaintiffs filed their petition for a writ of mandamus against defendants alleging that they were policemen and employees of the various park districts in Chicago when on May 1,1934, these districts were superseded by the Chicago Park District, and that they became civil service employees on and after that date. That subsequently on various dates they were laid off and defendants refused to recognize them as members of the classified civil service of the Park District. Defendants answered denying that plaintiffs were civil service employees of the Park District and after a hearing, the court found against plaintiffs, denied the writ, and plaintiffs appealed to this court and upon consideration, the judgment of the trial court was reversed and the cause remanded with directions to issue the writs of mandamus as prayed for. People ex rel. Kelly v. Dunham, 313 Ill. App. 18. Leave to appeal was denied by the Supreme Court (316 Ill. App. XIV). Afterward the cause was redocketed in the trial court and on June 30, 1942, a judgment was entered awarding the writ. July 14, the writ issued and defendants were served the same day. July 10, 4 days before the writ was issued, in compliance with the judgment, the park officials passed a resolution recognizing plaintiffs as civil service employees of the Park District and certified them as such. The resolution further provided: “That inasmuch as said persons designated in said order have no previous record of employment upon which any proper basis for credit can be given under the Eules of the Civil Service Board and its efficiency recognition formula, said persons be certified and appointed at the minimum rate of pay for their respective positions.”

Plaintiffs being dissatisfied with the manner in which they- were reinstated by the park officials and contending that it was not in accordance with the judgment of the court awarding the writ, their counsel on December 16, 1942, pursuant to notice, filed their verified petition for a rule on defendants to show cause why they should not be held in contempt of court for failure to comply with the judgment. An order was entered requiring defendants to answer and on January 8, 1943, they filed their answer. Afterward plaintiffs filed their motion to strike the answer and thereafter defendants filed a motion to strike plaintiffs’ petition. Later a number of orders were entered and April 14, 1943, the court entered judgment on the pleadings sustaining plaintiffs’ contention that the park officials had not complied with the judgment of June 30, 1942, and they were ordered to do so on or before May 8, 1943, and that if they failed or refused to comply with the judgment, that a contempt mittimus issue on May 10, commanding that defendants be taken by the sheriff and kept in the County Jail until they complied with the judgment. Defendants appeal.

Counsel for defendants contend, as we understand it (although their brief is confused), that the defendants are unable to carry out the judgment of the court for the reason that this could only be done by the Park Commissioners who are not parties to the suit. We think defendants are in no position to urge at this time their inability to carry out the judgment of the court for the reason that in accordance with the opinion of this court, it was ordered and adjudged what defendants were required to do. That judgment has not been appealed from and it is binding upon them.

Plaintiffs’ position is that by the judgment of June 30,1942, defendants were commanded to reinstate plaintiffs as civil service employees of the Park District as of May 1, 1934, while they were reinstated July 15, 1942 as new members; that if defendants had complied with the judgment, plaintiffs, who are police officers, would be receiving $208.33 per month, the maximum amount appropriated for salary for policemen who had been in the employ of the Park District for 3 years, instead of $178.33 per month, the minimum appropriated for salary for policemen who had just begun to work for the Park District, and that the other plaintiffs are in a similar position.

A rule adopted by the civil service board of the Park District provides for a maximum and minimum rate of pay and for the classification of the civil service employees according to efficiency. It further provides: “Each employee in a grade to which an efficiency recognition formula is applicable shall, in addition to other efficiency ratings, be accorded annually an efficiency review by his or her department and division heads to appraise the employee’s competency and progress in work. The President of the Board of Commissioners and the appropriate department head shall review the work of division heads, and the President of the Board of Commissioners shall review the work of department heads. If, in the opinion of the reviewers, the employee’s work is of such quality and quantity and his progress in his work so satisfactory as to warrant an advance in rate of pay, the reviewers may so recommend, and, if the recommendation is approved by the Superintendent of Employment, the salary or wage rate of the employee may be adjusted in accordance with the following formula . . . .” Then follows a provision for an increase in pay if the civil service employee has rendered efficient service for the first, second and third years and the rule continues: “No officer or employee shall, however, be regarded as having right, title, or claim to an advance in salary or wage rate.unless and until such shall have been approved by the Commissioners of the Chicago Park District.”

We think plaintiffs’ contention cannot be sustained. In the opinion we rendered in the mandamus suit [313 111. App. 18] the question was whether employees of the small parks became civil service employees when the Park District Act became effective on May 1, 1934. We held that-they did become civil service employees on that date but the contention now made by counsel for plaintiffs was in no way considered and the judgment entered by the Superior court after the reversal and remandment by this court does not pass on the contention now made. That judgment, for example, orders that plaintiff “Jasper C. Freeman, be certified, appointed, assigned and restored to duty as Lieutenant of police in the classified service of the Police Department of the Chicago Park District, with the right to perform the duties of said position and to receive the salary lawfully appropriated for the performance of said duties of Lieutenant of Police as he had prior to his unlawful removal.” It is clear from this judgment that the question of the salary Officer Freeman was to receive was not adjudicated and we are of opinion that under the rule of the Civil Service Board above mentioned, a civil service employee would not be entitled to an increase in salary unless and until his efficiency had been passed upon and had been approved by the Commissioners of the District.

A further contention is made that plaintiffs should be paid the salaries appropriated for them from June 30,1942, the date the judgment was entered, and not from about the middle of July, when they were reinstated, as was the case. But we think it obvious that there was no unnecessary delay on the part of the park officials. Ten days after the judgment was entered the park officials proceeded to carry out the judgment of the court. It is clear that it would take some little time to arrange the mechanics for reinstating the employees.

In the answer of defendants it is averred that pursuant to the judgment of the Superior court awarding the writ of mandamus “the Civil Service Board of the Chicago Park District at a meeting held on July 10, 1942, adopted a resolution that all steps be taken and all things be done necessary to comply with the provisions of said order and that the persons designated in said order be promptly classified in their respective status; that their names be entered on the list with seniority status as of May 1, 1934; . .' . .” That “defendants have recognized that in a spirit of fairness the plaintiffs are also entitled to be accorded a seniority status as of May 1,1934,” in accordance with the resolution of July 10, and that “Said resolution has been complied with.”

In view of the foregoing, we are of opinion that plaintiffs have not lost their pension rights as seems to be contended.

The judgment of the Superior court of Cook county is reversed.

Judgment reversed.

Niemeyer and Matchett, JJ., concur.