text:
    In re Estate of Mary Louise Collins, Deceased. First National Bank of Belleville, Administrator with Will Annexed of Estate of Mary Louise Collins, Deceased, Appellant, v. Annie Dekum, Appellee.
    Heard in this court at the February term, 1944.
    Opinion filed February 28, 1944.
    Rehearing denied May 23, 1944.
    Farthing, Farthing, & Feickert, of Belleville, for appellant.
    Oehmke & Dunham, Morris B. Chapman and Eugene H. Widman, all of East St. Louis, for appellee.
   Mr. Justice Stone

delivered the opinion of the court.

This appeal grows out of a proceeding under Article XV of the Probate Act instituted on petition of First National Bank of Belleville as administrator to collect of the estate of Mary Louise Collins, deceased, filed in the probate court of St. Clair county, Illinois, January 25,1943, under letters issued to it by that court on January 21, 1943, against the respondent, Annie Dekum, on the claim that she had in her possession certain Government bonds of the United States of America belonging to said estate. The cause was heard in that court on March 2, 1943, before the court without a jury, and on March 29, 1943 the court found the title to $7,200 par value United States Treasury Bonds, in the possession of respondent, to be in said estate and ordered her to deliver the same to said administrator to collect.

On appeal from that order to the circuit court of St. Clair county, Illinois, respondent requested a jury trial. That court ordered the bonds impounded until the final determination of this suit. On May 10, 1943, the last will of said decedent was proved and admitted to record in said probate court and on petition of Edward Collins, surviving husband of said decedent, petitioner appellant was issued letters of administration with the will annexed. Said Edward - Collins, on May 17, 1943, filed in said probate court his written renunciation of said will.

The cause was tried in the circuit court June 3 and 4, 1943, and a sealed verdict was returned, June 7, 1943, finding title to said bonds in respondent appellee. Appellant filed motion for an instructed verdict at the close of its evidence, at the close of the evidence of appellee, and again at the close of all the evidence introduced in the cause, all of which motions were denied. On June 11, 1943, appellant filed a motion for judgment notwithstanding the verdict and a motion for a new trial, both of which were denied, and judgment was entered on the verdict and against appellant for costs on July 30, 1943.

This is an appeal from the order of the court of July 23, 1943, denying said motion for judgment notwithstanding verdict and the orders of the court of July 30, 1943, overruling said motion for new trial and entering judgment on the verdict and against appellant for costs.

Mary Louise Collins nee Granery died testate on January 10, 1943, in East St. Louis. She had been married twice. Her first marriage was to John Barnett, from whom she was divorced in April 1940. On March 14, 1941, she married Edward Collins.. Mr. and Mrs. Collins were,not living together at the time of her death, having separated in August 1941, and he was away considerable of the time before the actual separation occurred. No children had been born to Mrs. Collins, who died at the age of 61 years. She was survived by two sisters and a brother. These sisters and brother paid little or no attention to Mrs. Collins during her lifetime, particularly in the later years of her life. Much of the time during that period she was ill. ’ They did not do anything to help her and never came to see her. She lived alone, and the respondent herein, who was her cousin, and of about the same age, administered often and over a long period of time to her needs. The respondent lived .across the street from Mrs. Collins; they had lived in the same vicinity since childhood and had grown up together. They were apparently very close. Mrs. Collins had access to the Dekum residence, used their telephone, and would often be in Mrs. Dekum’s house several times a day. Mrs. Dekum and her daughter often took Mrs. Collins on automobile trips, or for the running of errands. When Mrs. Collins was sick Mrs. Dekum prepared her food, washed, ironed, did the marketing for her, bathed her, ran her errands, gave her medicine, and generally took care of her. This went on for many years, even down to the end of her life. The relations between the two women were apparently most cordial, and many of the neighbors knew about it.

Mrs. Collins’ estate was valued at some twenty-five thousand dollars, exclusive of the bonds’ in controversy. During her lifetime she retained a highly respected lawyer who is now deceased, to handle her business and legal affairs. She consulted him on all matter of things. He drew her will for her.

Mrs. Collins often in the latter years of her life expressed her appreciation of thé treatment Mrs. Dekum had given her and her feeling of neglect towards her brother and sisters. Mrs. Collins often tallied with her neighbors and friends about the bonds in question, and Mrs. Dekum’s relation to them. It is the contention of the respondent that the bonds in question were given to her outright, with the privilege in Mrs. Collins, the donor, of clipping the coupons on said bonds during her lifetime. It is the contention of appellant that there was no gift inter vivos; that elements to constitute such a gift were lacking in the transactions between the two women. Mrs. Dekum had exclusive possession of the bonds for many years, and when Mrs. Collins made and published her last will and testament she made no reference of any kind or character to these bonds.

The relation sustained between the deceased and the respondent, and between the deceased and her brother and sisters lend some foundation to the contention that there was an absolute gift of the bonds in question made to Mrs. Dekum.

The appellant has assigned- many errors among which are that the court erred in denying appellant a directed verdict and a judgment notwithstanding the verdict; that improper evidence was admitted against it and that proper instructions were refused, offered on its behalf. Also the refusal of a new trial, and the entering of judgment. All these assignments are refuted by the appellee respondent.

With the setting as it was between these two old ladies and the relations that existed between the testatrix and the natural objects of her bounty, we have to consider what this evidence fairly shows. Some years before her death, either seven or nine, — the time could easily be mistaken, the testatrix delivered to the respondent Mrs. Dekum these $7,200 bonds. She advised her to get a safety box in which to keep them; that she reserved the right to receive the interest on these bonds during her lifetime and did so; clipped the coupons from said bonds from time to time, some of which she used and some of which were found in her lock box after her death. The testatrix told Mrs. Young that Mrs. Dekum had been so good to her that she intended to buy her a house, and as that transaction fell through with she was giving her these bonds. That expression could easily be construed to say, “I gave her bonds instead of the house,” in view of the other statements made by the testatrix as testified to by disinterested witnesses. For instance, testatrix told Mrs. Ruth Klostermeier in 1939, “Ruth, I gave your mother some bonds.” She said also that she told her mother to get a box to keep them in, and that Mrs. Dekum had done so and was keeping them at the Union Trust Company. On one occasion the testatrix said to Mrs. Dekum “I would like to go to town tomorrow, and if you can go along with me I would like to cash my interest on your bonds.” They did take her to town; they went and got the bonds for her; she clipped the coupons and handed the bonds back to Mrs. Dekum. On another occasion the testatrix told Mrs. Johnson that she was going to take care of Mrs. Dekum and that she had done so. The evidence fails to show that at any time, either when she was clipping the coupons or otherwise the testatrix made any request or any demand or any gesture towards regarding the bonds as her own, but, on the contrary, the conduct of the testatrix fully recognized that the bonds had passed from her ownership to the ownership of Mrs. Dekum. That she could have had them back upon request from Mrs. Dekum seems certain, but this only goes to show that the parties to this transaction fully régarded the gift as consummated and that the bonds belonged to Mrs. Dekum subject to the right of Mrs. Collins to clip the coupons during her lifetime.

This gift was irrevocable. Moreover no attempt was ever made to revoke it. We doubt not from the relations that the evidence shows to have existed between these two old ladies, Mrs. Dekum would have giyen back to Mrs. Collins the bonds had she requested it, but she never requested it.

We must add to this that with lock boxes in abundance at her command and lawyers to advise her, the bonds still remained in the exclusive possession of Mrs. Dekum, with the knowledge and consent of Mrs. Collins. We must add further that nowhere in her will did the testatrix mention these bonds. This we regard as a circumstance indicating that in the mind of the testatrix she had long ago disposed of them. It would be strange that if she regarded them as hers or that she had any interest in them, she would not have made some reference to them in her will; at least have advised her executor where the bonds could be found. This may be negative proof, but it seems to us to indicate that the testatrix died in the confidence that she had long ago given these bonds to Mrs. Dekum.

Thus this evidence shows that the bonds were given, that they were delivered, that they were regarded by the donor as the property of the other party, that no attempt was ever made to recover them; that a fair and reasonable construction of all the evidence and facts surrounding the matter, the two women believed and understood and regarded it to be a fact that Mrs. Collins had ceased to own the bonds and that Mrs. Dekum then owned them. This proves a past transaction. It proves an irrevocable gift; it proves possession and it proves in our judgment an understanding and belief and intention in the mind of Mrs. Collins that she had entirely parted with any interest in said bonds and that they were the property of Mrs. Dekum. Here are all the elements of a gift inter vivos.

The Keslmer case, 376 Ill. 354, is very far from describing the state of facts and circumstances such as those above detailed. In the Keslmer case the testatrix in his lifetime referred to the bonds as his. Mrs. Collins never made an intimation in her lifetime, or in her will, that the bonds in question belonged to her. And she died leaving ample estate to provide for all of her indebtedness, if any, and gifts otherwise.

In view of these facts it seems to us idle to argue that the court should have peremptorily instructed the jury to find the issues for the petitioner, and equally out of the question that the court should have rendered judgment for petitioner notwithstanding the verdict. We think a court, hearing this evidence standing alone could do nothing else than enter judgment for the respondent; and certainly, if standing alone, and the jury found that the transaction in question was a gift, as the jury did find in this case, the court would be powerless to set it aside as against the manifest weight of the evidence, or on the question of a failure to prove the necessary elements of a gift inter vivos. The court ruled correctly in our judgment in submitting this question to the jury.

Opposed to this evidence are some circumstances which do little more than raise some question as to whether the gift was made as this evidence shows. There is some controversy about who rented some lock boxes in the different banks. Counsel for appellant have set great store by an instrument found in Mrs. Dekum’s possession. It is in evidence as petitioner’s Exhibit 1 and is as follows:

“East St. Louis, Ill.
January 14, 1942
At the request of Mrs. Mary L. Granery Collins we rented a safe deposit box under No. 1043 in the Union Trust Company Bank, East St. Louis, Illinois, for one year, from January 6th, 1942.
I hereby waive any right of access to above mentioned box at any time Mrs. Mary L. Granery Collins desires me to do so.
(signed) Mrs. Frank J. Dekum.”

We think a reasonable interpretation of that, waiving of the right of access to that box, was merely a consent by Mrs. Dekum that Mrs. Collins might go there and clip the coupons off of those bonds with or without her. Counsel argue as a circumstance that the keys to Mrs. Dekum’s box were found in the possession of the testatrix after her death. We do not regard that as any circumstance tending to show any attempt to recover these bonds. Evidently the jury did not. From the

In re Estate of Collins, 322 Ill. App. 305. apparent relations existing between these two old ladies the dearest treasures of either might have been in the possession of the other from time to time. At any rate, all of these circumstances merely'presented to the jury whatever they were worth, if anything, intending to dispute the question of the gift, as the evidence shows it had been made. It presented a pure and simple question of fact for the jury. The jury heard the evidence, they saw the exhibits, they were in position to judge the credibility of the witnesses; they did do so and found for the respondent. This was the jury’s verdict that they were fully warranted in making under the evidence, but it was their verdict even though it might have been wrong so long as it was not against the manifest weight of the evidence. However, we are of the opinion that under all the facts and circumstances in this case the jury’s verdict was correct and should stand unless error entered into the proceeding which would warrant a new trial in this case. We do not find such errors.

Complaint is made of the giving and refusing of certain instructions. The petitioner asked the court to instruct the jury that possession of. the bonds by appellee after the death of Mrs. Collins is not sufficient proof of a valid gift. This instruction was properly refused because it contains the suggestion that all other elements to constitute the gift had failed.

It is complained that it was error to accept the evidence of the relations which existed between testatrix and the natural objects of her bounty. We do not think so. If no reference had been made to it it might be a circumstance tending to corroborate the petitioner’s theory of this ease. It was necessary and proper to lay the foundation by showing that Mrs. Collins had no relatives or other friends but Mrs. Dekum to whom she would naturally wish to give her property.

We are of the opinion that no reversible error enters into this record; that the verdict of the jury and the judgment of the trial court were correct. The judgment of the trial court was correct and in our judgment should be and it is hereby affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Riess

license: Public Domain

text:
    Walter T. Gunn, Appellee, v. Minnesota Mutual Life Insurance Company, Appellant.
    Gen. No. 9,406.

      Heard in this court at the October term, 1943.
    Opinion filed February 29, 1944.
    Rehearing denied April 22, 1944.
    Scott, MacLeish & Falk, of Chicago, Bindley, Jones, Grant & Sebat, of Danville, and Doherty, Bumble, Butler., Sullivan & Mitchell, of St. Paul, Minn., for appellant; Wendell J. Brown, of Chicago, Harold F. Bindley, of Danville, and Robert 0. Sttt.ltvan, of St. Paul, Minn., of counsel.
    Bookwalter, Carter & Gunn, of Danville, for appellee.
   Mr. Justice Riess

delivered the opinion of the court.

Plaintiff appellee filed suit against the defendant appellant in the circuit court of Vermilion county seeking recovery of certain premiums alleged to have been paid under the provisions of a retirement life annuity contract dated December 4, 1931. A trial was had by the court without a jury and judgment in the sum of $1,239.36 was rendered in favor of the appellee, from which judgment the appellant company has perfected its appeal to this court.

The annuity contract in question provided for payments by plaintiff appellee Walter T. Gunn to the defendant appellant insurance company, a Minnesota corporation, of monthly advance premiums in the sum of $154.92, beginning with the date of the contract. The contract further provided that when appellee Gunn attained the age of 65 years, if the policy was then in force, the appellee was to receive from the appellant company annuities in monthly payments of $213.03 during the remainder' of his natural life; that in the event of his death prior to attaining said age of 65 years, certain life insurance payments set forth therein were to be made to the wife of appellee, Vina Gunn, as beneficiary, and in the event of appellee becoming totally and permanently disabled, premium payments were to cease and annuity payments in instalments of $276.73 per month were to become payable to him thereafter.

Appellee Gunn’s application for the policy was written and the policy subsequently delivered by L. P. Livengood, designated in said application, a photostatic copy of which was made a part of the policy, as a “general agent” of said company and in other exhibits as agency manager at Danville, Illinois, and as an “authorized collector” of the company. On pages 1 and 2 of its reply brief, appellant recites the following as among other undisputed facts, viz: “That under date of December 1, 1931, the plaintiff, then an attorney at Danville, Illinois, age 52, made written application to the company for a retirement life annuity with disability benefit. This application was handled by one L. P. Livengood, at that time a general agent for the company at Danville.” That “Under date of December 4, 1931, the defendant company with its home office at St. Paul, Minnesota, issued the policy involved in this suit. ’ ’ The policy was delivered to the appellee at Danville by said company agent Livengood on January 4,1932, at which time the first monthly premium of $154.92 was paid to said agent and collector. All premium payments were made by checks of appellee Gunn upon his personal account in the Second National Bank of Danville, Illinois, and "'were all delivered to and cashed by said company agent Livengood. The can-celled checks were offered and admitted in evidence as exhibits showing payments to said agent in sums of $154.92, bearing dates of February 1, 1932, March 4, 1932, March 31, 1932; a similar check dated July 1, 1932 for $309.84 and one dated September 27, 1932 for $464.76, aggregating $1,239.36. The cancelled check of January 4, 1932 was not found, although payment of the first four monthly premiums was admitted by the company.

The checks dated February 1, 1932 and March 31, 1932 were made payable to the order of L. P. Liven-good for the amount of said monthly premiums, and the checks dated March 4, 1932, July 1, 1932 and September 27, 1932 were all made payable to the “Minnesota Mutual Life Ins. Company,” the appellant herein. The checks bore indorsements by L. P. Liven-good upon those made payable to him and the remainder were so indorsed “Minnesota Mutual Life Ins. Co., L. P. Livengood, Agency Mgr. 82.” Among others, a premium receipt for a monthly payment was issued from the home office of the company at St. Paul and delivered to the appellee acknowledging payment of premium due on February 4, 1932, containing therein the clause “Authorized Collector. This receipt to be valid must be countersigned by the Home Office Cashier or the Authorized Collector named herein k. L. P. Livengood, Box 52 Danville, Ill. Date Received-Authorized Collector (Stamp) Paid Mar 11 1932 Home Office Cashier, by E. O.” A similarly worded company receipt dated January 4, 1932 for ’ premium of $154.92 of Walter T. Gunn, 1124 Sheridan, Danville, Ill., was also stamped “Paid March 11, 1932, Home Office Cashier, by E. O.” and was delivered to appellee.

After January 4,1932, a notice of lapse of the policy for alleged nonpayment of premium due on the date of the policy was sent' to the appellee, but his policy was duly reinstated. Again, after May 4, 1932, notice to the insured of lapse of the policy for nonpayment of monthly premium due April 4, 1932, was given appellee. Following this notice of lapse, the two checks, dated, respectively, July 1, 1932, in the sum of $309.84 and September 27,1932, for $464.76, payable to the order of said insurance company, were delivered to and cashed by the company’s said general agent L. P. Livengood. No form of receipt was issued therefor to the assured nor was any application signed or notice of reinstatement given to the appellee following said notice of lapse. No repayment or refunding of either of said payments to the insured was ever made by or through either the company or by its said agent.

Appellant company admitted (Abst. 12) “that said Livengood did report promptly the receipt of said first four monthly premiums, and the defendant issued its official receipt therefor,” and then avers that “It neither admits nor denies that the plaintiff executed and delivered to said Livengood a check dated July 1, 1932 and his check dated September 27, 1932 . . . but says that if the checks were made and delivered to said Livengood and were cashed by him that he never reported the same and never paid the net premiums represented thereby to the defendant, but that if he received any money on said checks, he converted the same to his own use.” Appellant further recites its contention that the agent had no actual authority under the terms of the policy to accept premiums past due, to reinstate or to accept or cash checks tendered in payment of past premiums under a lapsed policy. It further appears from the evidence, both orally and by exhibits admitted over defendant’s objection to proof of any facts occurring subsequent to the filing of the suit, in denial of its plea that it had never received such premiums, that the home office of the defendant company had since the suit was filed credited on its books the receipt of premiums covered by appellee’s two last-mentioned checks dated July 1, 1932 and September 27, 1932, less agent Livengood’s commissions, which checks had been cashed by Livengood and which net premiums therefrom were so credited at the home office on its open running account with said general agent and collector against renewal premium commissions due him from the company on business previously written and premiums collected.

Appellee Gunn asserts that under his complaint, as amended, the collection of said premiums from the insured by said general agent and authorized collector after notice of lapse of the policy was not only binding upon the company under the circumstances in evidence but by such subsequent acceptance of the premiums the company had thereby expressly ratifiéd such transactions and authority of its agent and is estopped from denying the same, although said policy was never reinstated by the company nor were the premiums so paid at any time thereafter tendered or returned to the insured by the company, which denied all liability upon demand therefor.

All of the aforesaid transactions between the company and its agent concerning the agent’s failure to account for premiums so collected or to cause such reinstatement were done without the knowledge of and were concealed from the appellee Gunn until shortly before and partially after the filing of his suit to recover such premiums based upon the repudiation and violation of the terms of its contract by the company. Appellee asserts that the company, by and through the acts of its said general agent and collector, for which the assured was in nowise responsible, had repudiated and violated the provisions of said policy; had given him notice of lapse and had failed to reinstate the contract. or to credit said payments toward the monthly premium instalments due for the month of April and May covered by the check for $309.84 and for the succeeding months of June, July and August covered by premium" check for $464.76 payable to the order of the company and so delivered to and cashed by its said collector and general agent and subsequently credited on the books of the company after suit was filed herein, or in default thereof to notify appellee of the facts and refund such payments; that such facts were so fraudulently concealed from and wholly unknown to the insured until 1939, when and whereupon his cause of action for recovery of such premiums and accrued interest thereon at the rate of five per cent per annum as damages for the violation of the contract first accrued to him, under and by virtue of the provisions of sec. 23, ch. 83, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 107.282], concerning the fraudulent concealment of facts which prevent the bar of the statute of limitations from running and result in a right of action arising and accruing upon discovery thereof, and which section reads as follows: “If a person liable to abaction fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he has such cause of action, and not afterwards. ’ ’ While there were a number of conferences and conversations relating to the policy and premium payments between the assured and the general agent and district manager Livengood, who had negotiated and carried oh all of the foregoing transactions between the parties and had collected all premiums for and on behalf of the company, it appears that Livengood neither communicated to appellee Gunn his failure to transmit or report the net premiums collected in July and September 1932, to the home office of the company, until 1939, when the concealed facts first became known to appellee and to the home office of the company at St. Paul, at which time a representative of said company came to Danville and it was then learned by the appellee that agent and collector Livengood had not reported the receipt of the last two checks which had both been made payable to the order of the Minnesota Mutual Life Insurance Company, although said agent had indorsed, cashed and collected the same, in a similar manner as he had received, cashed and collected all the previous checks, wherefrom he had made due remittances of net premiums to the home office of the company, as admitted by the appellant herein. After a number of further conferences between the company representative from the home office, the insured, Liven-good and his successor as general agent, Childs, and some correspondence between said parties, the company refused to acknowledge that it had received the payments in question or was responsible to account for payments to agent Livengood by the assured under the two last-mentioned checks; contending, that he was not their general agent; was not authorized to collect the same; was acting for the insured and that the latter must look to Livengood to recover his money; that no lawful reinstatement of the policy had been made; that the same had lapsed; that in any event, the claim of appellee for a refund of the premiums thereon was barred by both the five and the ten year statutes of limitations; or, if it be held by the court that acceptance of premiums after lapse of the policy constituted a waiver of preceding conditions and entitled same to reinstatement, then the earned premiums for the succeeding months after such lapse occurred had long since been absorbed and the defendant had thereby become relieved from further accounting for such pre-. miums.

Aside from the designation of agent Livengood as a ‘‘general agent,” “agency manager” and “authorized collector” of the company and the subsequent ratification of his actions in the collection of all the' premiums in question by the company’s acceptance thereof, it was expressly provided by sec. 346, ch. 73, Ill. Rev. Stat. 1935, in force at the time the contract was entered into and the collections were made by said agent, that “Whoever solicits insurance on behalf of any company not chartered by and not established within this State, or transmits, for any person other than himself, an application for life insurance, or a policy of life insurance, to or from such company, or advertises that he will receive or transmit the same, shall be held to be an agent of such company to all intents and purposes, and subject to all the duties, requisitions, liabilities and penalties set forth in the laws of this State relating to life insurance companies not incorporated by the Legislature thereof.” The above applicable provisions of said statute were construed by the Supreme Court in the case of Continental Ins. Co. v. Ruckman, 127 Ill. 364, 20 N. E. 77. Moreover, by receiving and retaining the payments made after April 4, 1932, the defendant waived restrictions in'the contract concerning reinstatement and time of payment of the premiums. Baxter v. Metropolitan Life Ins. Co., 318 Ill. 369,149 N. E. 243; John Hancock Mut. Life Ins. Co. v. Paulina Schlink, 175 Ill. 284, 51 N. E. 795. A general agent, clothed with power to solicit insurance, receive the application and forward it to the company, receive and deliver the policy and collect the premium, has power to waive a condition of the policy notwithstanding that power is negatived by provisions in the policy and his contract of employment. John Hancock Mut. Life Ins. Co. v. Schlink, supra. Dromgold v. Royal Neighbors of America, 261 Ill. 60, 103 N. E. 584.

The persistent contention of the defendant company that no reinstatement of the policy could occur without a written application of the insured for such reinstatement and the delivery of an official receipt to the insured for the payment of each premium in advance, does not preclude a waiver of such provisions merely because its agent fails to procure such application and give such receipt, where the insurer accepts payments of a premium after it is due and after the period of grace has passed. These provisions of the policy could be and in legal effect were waived by the subsequent collection and receipt of such premiums by the company under the facts and circumstances appearing in evidence in this case. Baxter v. Metropolitan Life Ins. Go., supra. However, we are not in accord with appellant’s alternative contention that if this court now holds that the receipt of the premiums subsequent to notice of lapse constituted a waiver of the above terms of the policy, the company becomes thereby entitled to retain the payments as earned premiums for the succeeding five months after April 4,1932 and need not account therefor, regardless of any alleged breach of its contract. This belated contention, adverse and contrary to their entire course of conduct in lapsing and failing or refusing to reinstate the policy and in denying that it had been reinstated or continued in effect ; in denying that such premiums had been paid to or received by the company; although subsequently retaining the premiums in question, as disclosed by the evidence, constituted a material breach of their contract, entitling the plaintiff appellee to elect his own remedy, and at his option to consider the contract re- ■ scinded and at an end and to sue for damages for such repudiation and breach of contract by the company when such facts came to his knowledge.

In this action, the appellee is not seeking to enforce a continuation or reinstatement of the contract and is not required to do so, but at his proper election may treat the contract as rescinded and at an end and recover damages for repudiation and breach of the contract, which both this court and the trial court have found from the evidence to have been committed by the company. Having thus breached the contract in question and disclaimed all further liability thereunder, the company cannot now deprive the plaintiff Gunn of his right to elect his own remedy. The latter course, he elected to pursue upon learning the fraudulently concealed facts which gave rise to his cause of action, and the trial court properly held that under the evidence herein, he was. entitled to recover damages. Lake Shore & M. S. Ry. Co. v. Richards, 152 Ill. 59, 38 N. E. 773; Bowden v. Board of Education, 264 Ill. App. 1.

Under the facts and circumstances disclosed by the evidence herein the measure of damages would be the amount of such premiums so received and retained by the company following lapse of the policy, with interest at the legal rate of five per cent per annum thereon from the dates of said receipt and conversion of premium payments in 1932 to the date of the judgment, in return for which no protection whatever- had been furnished appellee under the provisions of the policy.

There is no force in defendant’s further contention that the cause of action, if any, which the appellee had was against Livengood “because it was his.own money that Livengood had converted.” By the terms of the contract under which Livengood was appointed, he was clothed with the power of soliciting, insurance, delivering policies and collecting premiums and was therefore acting as the agent of the insurance company and not as agent of the policyholder. John Hancock Mut. Life Ins. Co. v. Schlink, supra, p. 289; Continental Ins. Co. v. Ruckman, supra; ch. 73, sec. 346, Ill. Rev. Stat. 1935.

We further hold from the facts herein that the defendant had furnished four months ’ partial protection provided for under the first four payments of the premiums for which no recovery can be had under the allegations of the complaint for money had and received and for which no special damages were alleged and proven. Brown v. Federal Life Ins. Co., 353 Ill. 541, 187 N. E. 484; Phoenix Mut. Life Ins. Co. v. Baker, 85 Ill. 410; Brooklyn Life Ins. Co. v. Week, 9 Ill. App. 358. But as to the last two checks for the payment of premiums the company had neither reinstated the policy nor furnished to the appellee any protection or otherwise complied with the terms of its contract growing out of the receipt of said funds by and through its said agent and collector Livengood, and that upon the facts coming to the knowledge of the insured in 1939, a cause of action accrued to the latter for the recovery of the amount of said two last-mentioned checks and interest thereon; that legal interest has so accrued from the time of the receipt and conversion of said amounts at the statutory rate of five per cent per annum to the date of the judgment for such principal and interest in the aggregate amount of $1,191.59; that the appellee was and is entitled to recover judgment for said amount but is not entitled to recover herein the amount of the prior premiums paid to and receipted for by the company under the contract while so in force and complied with by the company.

While we have not discussed all. of the assignments of error or contentions by the appellant, we have fully considered the same, and we find no substantial merit therein under the facts and circumstances disclosed by the record.

Under the provisions of ch. 110, sec. 92 (f) of the Civil Practice Act, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 104.092] if appellee will file within 20 days a remittitur of the amount of said judgment in excess of said amount of $1,191.59, viz: $47.77, a judgment shall be entered here for the amount of $1,191.59 in favor of the appellee and against the appellant and the judgment of the circuit court so modified shall be affirmed ; that upon failure to so file said remittitur, said cause is ordered to be remanded with directions to the trial court to enter judgment for said latter amount.

Judgment modified and affirmed.


author: Mr. Justice Scanlan

text:
    Dan P. Crowley, Appellee and Cross Appellant, v. Milk Wagon Drivers' Union, Local No. 753, etc., et al., Appellants and Cross Appellees.
    Gen. No. 42,360.

      Heard in the second division of this court for the first district at the October term, 1942.
    Opinion filed March 8, 1944.
    Rehearing denied March 22, 1944.
    David A. Riskind, of Chicago, for appellants and cross appellees.
    Joseph S. Grant, of Chicago, for appellee and cross appellant; Henry W. Kenoe, of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Defendants appeal from a certain part of an equity decree entered in the above cause. Plaintiff, in a cross-appeal, appeals from another part of the decree.

Plaintiff sued to recover sick benefits under the Union’s sick benefit by-laws. The following are the relevant provisions in the sick benefit by-laws that were in force when plaintiff sustained his injuries:

“A sick benefit shall be paid to members in good standing of Twenty ($20.00) Dollars per week.
“No benefit shall be paid for any sickness of less than 14 days, the first 7 days of this does not draw benefit, but if sick 14 days or more, then a benefit will be paid for the entire period of illness minus the first 7 days. As soon as 90 days of benefit has been paid a member, if he is still sick his dues stop and he draws two ($2.00) dollars per week extra for his wife and each child under 16 years.”

The cause was referred to á master in chancery, who took evidence and reported his findings of fact, conclusions of law, and a recommendation that a decree be entered in favor of plaintiff in accordance with the prayer of the complaint. The chancellor sustained the master in part and overruled him in part, and entered a money decree in favor of plaintiff and against defendants in the sum of $4,577.75 and costs.

The master found, inter alia, that the Union had a membership of over 6,000 men; that the members were engaged in the business of retail distribution of milk and dairy products; that plaintiff became a member of the Union on January 27, 1927, paid his initiation fee of $100, and thereafter paid all required dues to the Union until August 15,1927, and ninety days thereafter; that on August 15, 1927, plaintiff sustained an injury to his right arm which incapacitated him from performing his work as a milk wagon driver; that shortly after he was injured he returned to work on a milk wagon, but "with the aid of a helper; that his arm became worse and after five weeks he was advised by the Union physician to desist from said employment because he was physically unable to perform the said work; that the Union physician reported his finding to the Union and thereupon the Union commenced paying plaintiff the sum of $32 per week; that at the time plaintiff suffered the said disability and sickness he was a married man and head of a family composed of the following persons: Margaret Crowley, his wife, then 33 years of age; Catherine M. Crowley, daughter, then 6 years of age; Eleanor L. Crowley, daughter, then 5 years of age; Daniel J. Crowley, his son, then 3 years of age; Margaret M. Crowley, daughter, then 2 years of age, and Loretta A. Crowley, daughter, then 1 year of age. The master further found that the Union paid to plaintiff weekly payments of $32 until January 1, 1936, and thereafter refused and failed to pay any sick benefits to plaintiff and has not paid him any since that time; that the refusal of the Union to make said payments was based entirely upon certain amendments to the by-laws that went into effect January 1, 1936 [these amendments were not binding on plaintiff — see, Fichter v. Milk Wagon Drivers’ Union, 382 Ill. 91]; that in July or August, 1935; the president of the Union stated to plaintiff that the Union was financially unable to continue the payments to plaintiff and suggested to plaintiff that he make a compromise in full for all moneys that might accrue to him; that the president stated to plaintiff that the Union was about to adopt an amendment to the by-laws which might seriously affect plaintiff’s rights to the sick benefits that were then being paid to plaintiff; that plaintiff refused to compromise; that on January 14, 1936, plaintiff paid to the Union the sum of twenty-five cents and obtained a withdrawal card from the Union; that plaintiff obtained the withdrawal card because he was unable to to pay his monthly dues and by obtaining the card he was able to keep in good standing in the Union; that he, in fact, became an inactive member; that prior to January 1, 1936, plaintiff regularly visited the Union physician and submitted himself to examinations by said physician, in accordance with the by-laws of the Union, and the physician reported his findings to the Union; that since said injury to plaintiff and until June 1, 1936, plaintiff was unemployed and received no income except the moneys that he was obtaining from defendant Union; that subsequent to January 1, 1936, he attempted to obtain employment but was unsuccessful ; that he received the sum of $18 per month relief from the government; that he was successful in obtaining odd jobs but received very little income therefrom; that for the past year and one-half he has been working as an orderly at Hines Hospital and is receiving therefor the sum of $25.50 every two weeks, plus his room and board; that plaintiff’s arm has improved somewhat since his injury and since his last examination by the Union doctor prior to June 1,1936; that he is still incapable of executing the duties required of him as a milk wagon driver; that he has searched for work in another craft but has been unable to obtain employment due to his physical handicap; that his schooling was .confined to the eighth grade in the elementary schools; that his present occupation at the Hines Hospital consists of light work and his arm injury does not prevent him from fulfilling Ms duties at that job. The following are the conclusions of the master so far as they apply to the instant appeal and cross-appeal: That plaintiff has a right to obtain benefits from the Union for the entire period of his incapacity; that defendant has failed to prove that plaintiff is capable of performing the duties required of Mm in another craft or that he has wilfully refused to obtain such other employment; that the master does not believe that the withdrawal card obtained by plaintiff has any bearing on this matter, inasmuch as it was obtained after the adoption of the amendments and after the refusal by the Union to continue the sick benefit payments; that this in itself does not show an intent on the part of plaintiff to relinquish his claim against the Union; that “the Master therefore believes that plaintiff is entitled to receive from the union the sum of $32.00 per week from January 1, 1936, until November 7, 1936; the sum of $30.00 per week from November 7, 1936, to November 13, 1937, and the sum of $28.00 per week from November 13, 1937, until the entry of a decree in this cause;. that a decree in the nature of a judgment at law should be entered for said amount and that execution issue therefor. The Master finds that the equities of the case are with the plaintiff and against the union. ’ ’

The following are the only parts of the decree that need be considered:

“15. That the court construes the By-Laws of the defendant union and the sick benefit provisions thereof so that the acceptance by the plaintiff of any employment whatsoever constitutes a waiver of the right to further benefit payments; that the acceptance by the plaintiff of employment as a hospital attendant at the Hines Hospital conducted by the Veterans Administration at Hines, Illinois, constitutes a waiver by the plaintiff of any right to further benefits and constituted an employment in some other craft within the meaning of the By-Laws of the defendant union; that the plaintiff is therefore entitled to receive sick benefits under the original By-Laws of the defendant union up until his acceptance of such employment, that is, until the 22nd day of September, 1938;
“16. That the plaintiff is entitled to receive from the defendants and the defendant union, in accordance with the terms and provisions of the By-Laws and in accordance with the decision of this court as above indicated, the following:
“The sum of $32.00 per week from January 1,
1936, until November 7, 1936, or towit: the sum of $1440.00
“The sum of $30.00 per week from November 7, 1936, until November 13, 1937, or towit: the sum of 1590.00
“The sum of $28.00 per week from November 13, 1937, until September 22, 1938, or towit: the sum of 1246.00
“Or a total sum of........................$4276.00
“17. That the plaintiff is entitled to a decree in the nature of a judgment at law for the amounts so due him and that execution should issue therefor; that the equities in the case are with the plaintiff and against the defendants.”

Defendants appeal from paragraphs 16 and 17 and ask that they be reversed, but they also ask that paragraph 15 be affirmed.

Plaintiff, in his cross-appeal, asks that paragraphs 16 and 17 be affirmed and that paragraph 15 be reversed, and that the cause be remanded with directions to incorporate in the decree in lieu of paragraph 15 a paragraph finding that plaintiff’s right to sick benefits continues.

. At the time the briefs were filed in this court in the instant case the Supreme Court had not decided Fichter v. Milk Wagon Drivers’ Union, supra. Because of that decision, upon the oral argument of this cause, counsel for defendants stated that they would rely upon one point, vis., that the Union had the right to cease paying the sick benefits to plaintiff when he requested and accepted a withdrawal card from the Union in January, 1936. If defendants made that point in their brief, it must be found in the following contention made by them: “Plaintiff’s conduct in accepting his last payment after notification that this was his last payment in accordance with the provision of the 1936 amendments and his request and acceptance of the withdrawal card in January of 1936 when he received what he knew was his last payment showed an implied contract to A. Conform to the benefit provision of the 1936 by-laws. B. And to withdraw from the Union.” In the Fichter case the defendants made the same contention, in the same language, save as to the date. We held, in Fichter v. Milk Wagon Drivers’ Union, 312 Ill. App. 40, that this contention of the defendants was a meritorious one. But the Supreme Court (Fichter v. Milk Wagon Drivers’ Union, supra, 382 Ill. 91) reversed our holding as to that contention and entered judgment in favor of plaintiff. While it is true that the Supreme Court, in so holding, did not specifically refer to the withdrawal card it is clear that it considered the effect of the withdrawal card in reaching its conclusion. The master found that “the withdrawal card obtained by plaintiff has no bearing on this matter, inasmuch as it was after the adoption of the amendment, and after the refusal of the association to continue the payments. This in itself does not show an intent on the part of the plaintiff to relinquish his claim against the union. ’ ’ This finding was confirmed by the chancellor. The evidence warrants the conclusion that when plaintiff was refused further payments of sick benefits he accepted the withdrawal card in order to preserve his rights in the Union. The withdrawal card, itself, shows that upon acceptance of the card plaintiff did not wholly sever his relationship with the Union; that he merely became an inactive member. Without such a card he would lose his Union rights. With the card he can return to the Union without repayment of an' initiation fee or accumulated dues and with seniority rights. We hold that it would be highly inequitable to permit the Union to refuse to fulfill its obligations to plaintiff merely because plaintiff accepted the withdrawal card, and we are satisfied that the opinion of the Supreme Court in the FicMer case sustains this holding. There is considerable force in the argument of plaintiff that his act in accepting the withdrawal card was not a voluntary one and that the unwarranted conduct of the Union in refusing to pay the sick benefits forced him to accept the withdrawal card. We are satisfied that there is no real merit in the sole point raised by defendants.

As to the contention raised by plaintiff upon his cross-appeal: The chancellor found in paragraph 15, inter alia, that plaintiff was entitled to receive sick benefits until he accepted employment as a hospital attendant at the Hines Hospital; that the acceptance of such employment by plaintiff “constitutes a waiver of the right to further benefit payments,” and “constituted an employment in some other craft within the meaning of the By-Laws of the defendant union.” Plaintiff contends that the chancellor erred in so holding. The only provision in the by-laws of the Union that has any possible bearing upon the court’s finding is sec. 42 of the original by-laws, which reads, in part, as follows: “B. When a man stops driving a millc wagon and goes to work at another craft, the Secretary-Treasurer must take no more dues of him, and he will not be entitled to sick or death benefits.” Webster’s New International Dictionary defines “craft” as follows: “Art or skill; dexterity, as in some manual employment; skillfulness in planning or executing; hence, an occupation or employment requiring this; a manual art; a trade, business, or profession.” Plaintiff in his employment at Hines Hospital was not working at a craft, within the meaning of that term as it is used in sec. 42, and the chancellor erred in holding that he was. Moreover, sec. 42 applies solely to a member who goes to work at another craft at a time when he is not on the benefit list. That section also provides that after the member changes to another craft the secretary-treasurer must take no more-dues from him. A member already on the benefit list does not pay dues, because the sick benefit provisions in the old by-laws provide that “As soon as 90 days of benefit has been paid a member, if he is still sick his dues stop. ’ ’

But defendants now contend that even if the chancellor’s reason for holding that plaintiff was not entitled to future sick benefits was unsound, in any event, “ ‘sick benefits’ mean total permanent incapacity or disability from carrying on any duties of any gainful business or occupation,” that the evidence shows that plaintiff is capable of doing light work, and therefore “plaintiff is not entitled to recovery because he does and is able to do some work. ’ ’ Plaintiff contends that “the term ‘sickness’ as used in the by-laws means a diseased or disordered condition which prevents the plaintiff from engaging in his duties as a milk wagon driver.” As there is no provision in the by-laws that covers the instant contention raised by defendants the question involved therein must be determined upon equitable grounds. We may say, however, that the present contention of defendants is clearly an afterthought. Plaintiff sustained the injury in 1927 and the evidence shows that defendants’ doctor then advised the Union that plaintiff was disabled so far as the craft was concerned and that the condition was permanent. Thereafter defendants’ doctor examined plaintiff from time to time and reported to the Union his findings. The Union paid plaintiff the 'sick benefits created by the by-laws from 1927 until January 1, 1936, upon the theory that plaintiff was “ ‘sick’ within the meaning of the by-laws,” but they now ask us to give a different meaning to the by-laws, one that the officers of the Union had not in mind when plaintiff’s sick benefits were stopped." We have heretofore referred to the findings of the master as to the acts of the officers of the Union in 1935, whereby they attempted to coerce plaintiff into accepting a compromise of his rights to sick' benefits. We refer to the financial condition of the Union at that time in our opinion in Fichter v. Milk Wagon Drivers’ Union, 312 Ill. App. 40, 58. The records of this court, in a number of cases that were brought against the Union, show that about November or December, 1935, it was attempting to avoid the payment of sick benefits in cases akin to the instant one.

We cannot agree with defendants’ contention nor with plaintiff’s contention as to the meaning of the words “sick benefits” in the by-laws. To adopt defendants’ interpretation would be to hold that if plaintiff sold peanuts or shoe laces, or lead pencils, upon a street corner he would be doing business of a gainful nature and therefore would not be entitled to sick benefits under the by-laws. To adopt plaintiff’s interpretation would be to hold that if plaintiff followed the business of a bookkeeper, or some other avocation, and received a very substantial sum per week for his work, he would still be entitled to the sick benefits. The by-laws must be given a reasonable interpretation. In Plattdeutsche Grot Gilde v. Boss, 117 Ill. App. 247, the by-laws of the fraternal benefit society provided for the payment of sick benefits where a member is “sick and unable to work.” The Grilde contended that the plaintiff was not entitled to sick benefits unless he was “sick and unable to work.” In passing upon this contention the court said (p. 252): “The uncontradicted proof shows that he was a carpenter and lost the use of his left arm permanently in consequence of a building falling on him May 6, 1896; that he was unable to do any work up to November 5, 1901; that at the time of the trial (June 1903) he ‘was able to do a little.’ ‘I have done no hard work since I was injured. I do a little light carpenter work, make some mosquito frames, anything light I can take hold of. I have been suffering ever since I got hurt. ’ On cross-examination appellee testified: ‘I can hardly do any work to-day.’ We cannot concur in the contention of appellant’s counsel that ‘to obtain sick benefits a member must be actually sick and so sick as to be unable to do work of any kind. He cannot draw sick benefits and earn money at the same time.’ If this construction of the words ‘sick and unable to work’ be correct, it would follow that a person who earned $5 a day before he became sick would have no right to a benefit if capable of earning ten or twenty cents a day, or any sum, however small, afterwards. The by-law must receive a reasonable construction. Its meaning evidently is that so long as a man is not restored to his full health and is substantially unable to do such work or make such a living as he did before, he is entitled to the benefit. Genest v. L’Union, 141 Mass. 417; Niblack on Benefit Societies, 2nd ed., par. 403.” It will be noted that in the instant case the sick benefit provisions contain no such qualification as the words “unable to work,” that are contained in the Plattdeutsche Grot Gilde sick benefit bylaws. Even in cases that involve accident policies that contain a total disability clause it has been held that it was not necessary in order to entitle the insured to payment that he should be disabled to such an extent as not to have sufficient physical power to' follow some easy occupation or perform some slight labor. Berry v. United States, 312 IT. S. 450, involved a case under the War Bisk Insurance Act that required plaintiff to be “totally and permanently disabled.” Berry, while serving in the front lines in France was wounded in the right arm, right shoulder, right hip and in front of the right ear, and his left leg was amputated. After returning to the United States he bought a farm. He was compelled to depend upon the work of his own family and relatives in this undertaking, but the venture was a failure and he lost the farm. He tried to operate a garage in partnership with another. In this, too, he was unsuccessful. For a time he was engaged as a salesman of aluminum cooking utensils. The government contended that upon the evidence plaintiff had not made out a case of total and permanent disability. The Supreme Court in passing upon the contention states (pp. 455, 456) :

“It was not necessary that petitioner be bedridden, wholly helpless, or that he should abandon every possible effort to work in order for the jury to find that he was totally and permanently disabled. It cannot be doubted that if petitioner had refrained from trying to do any work at all, and the same evidence of physical impairment which appears in this record had been offered, a jury could have properly found him totally and permanently disabled. And the jury could have found that his efforts to work — all of which sooner or later resulted in failure — were made not because of his ability to work but because of his unwillingness to live a life of idleness, even though totally and permanently disabled within the meaning of his policies.”

In January, 1936, the Union took plaintiff off the sick benefit list, but not because he was not “sick” with in the meaning of the old by-laws. He had a wife and five small children. The instant suit was commenced on May 8, 1936. Plaintiff was without employment until September, 1938, when he started to work at Hines Hospital. Counsel for plaintiff insist that the latter was confronted with a situation where he had to accept what the Union might be willing to pay him in compromise of his claim or seek work of some kind in order to support himself and family, regardless of his physical condition. The evidence shows that the work done by him in the hospital is light, and consists of answering the calls of patients, bringing them a glass of water, or similar nonarduous duties, for which he receives the sum of $12.75 per week plus his room and board. The master found that his occupation at the Hines Hospital consisted of light work and that his arm injury did not prevent him from fulfilling his duties.

If the position of defendants as to the effect of plaintiff’s employment at the hospital is not sound, then plaintiff, under the old by-laws, was entitled to $32 per week until November 7, 1936, when his daughter Catherine attained the age of 16 years; and thereafter he was entitled to the sum of $30 per week until November 13, 1937, when his daughter Eleanor attained the age of 16 years; and thereafter he was entitled to $28 per week. The amount paid plaintiff for sick benefits was apparently fixed at a sum that the Union deemed necessary for the support of plaintiff, his wife, and children under 16 years of age during plaintiff’s sickness. In our judgment, the amount of the sick benefits paid plaintiff furnishes an equitable basis for determining what effect, if any, his employment at the hospital had upon his right to sick benefits. If plaintiff were receiving from the hospital that amount, or approximately that amount, then, in equity, the Union should have the right to discontinue the payment of the sick benefits. But the hospital is not paying plaintiff that amount, nor approximately that amount, and the Union should, in equity, continue to pay the sick benefits under the present situation.

The decree of the circuit court, save as to paragraph 15, is affirmed. As to paragraph 15 the decree is reversed, and the cause is remanded with directions to the chancellor to substitute in lieu of paragraph 15 a paragraph finding that plaintiff is entitled to sick benefits.

Decree affirmed in part, reversed in part, and remanded with directions.

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


author: Mr. Justice Sullivan

text:
    People of the State of Illinois ex rel. Bart Fleming et al., Appellants, v. Joseph P. Geary et al., Appellees.
    Gen. No. 41,944.

      Heard in the second division of this court for the first district at the October term, 1941.
    Opinion filed March 8, 1944.
    James N. Grace, of Chicago, for appellants; Richard T. Tobin, of Chicago, of counsel. .
    Barnet Hodes, Corporation Counsel, for appellees; James A. Velde, Fred Y. Maguire, Carl H. Lundquist and L. Louis Karton, Assistant Corporation Counsel, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

An amended and supplemental complaint (hereinafter referred to as complaint) was filed in behalf of the relators, Bart Fleming, William Mahoney, Charles M. Reid, John M. Bishop and Otto Benchelt (hereinafter referred to as plaintiffs), for the issuance of a writ of mandamus to compel defendants, the Civil Service Commissioners of the City of Chicago and the Commissioner of Public Works of the City of Chicago, to reinstate plaintiffs and appoint them to their civil service positions of hoisting engineer in place of three civil service chauffeurs and two temporary appointees, who were occupying said positions of hoisting engineer under the designation of “Chauffeurs (when acting as Hoisting Engineers on air compressors).” The trial court entered an order which sustained defendants’ motion to strike the complaint in so far as it pertained to “those positions of hoisting engineer charged as being occupied” by the three civil service chauffeurs and dismissed the suit “as to such positions,” and which overruled defendants’ motion to strike the complaint in so far as it pertained to “those positions of hoisting engineer charged as being occupied” by the two temporary appointees and directed defendants to answer the complaint only so far as it applied to the positions of hoisting engineer occupied by the two temporary appointees. Plaintiffs appeal from that portion of the judgment which ordered “that the said Motion of the Defendants to strike the Amended and Supplemental Petition of Plaintiffs for Mandamus be sustained as to the positions of Hoisting Engineer charged as being occupied by Civil Service Chauffeurs, and that the suit be dismissed as to such positions.”

The facts alleged in the complaint are substantially as follows: Plaintiffs were employed as probationary civil service hoisting engineers for a period of six months after their respective certifications during May and June, 1938 from the civil service eligible list of-hoisting engineers. Thereafter, until they were removed from their employment on various dates in March and June, 1940, they occupied position's as hoisting engineers in the Water Pipe Extension Division of the Department of Public Works of the City of Chicago as permanent civil service employees. Among their duties while so employed was the operation of air compressors. The operation of an air compressor is within the scope of the duties of a hoisting engineer and is not within the scope of the duties of a chauffeur under the rules of the Civil Service Commission (hereinafter for convenience sometimes referred to as the commission). The 1940 and 1941 appropriation ordinances for the City of Chicago, in addition to appropriating for “Hoisting Engineers at $13.60 per day” for use in the Water Pipe Extension Division of the Department of Public Works, included an appropriation for “Chauffeurs (when acting as Hoisting Engineers on air compressors) at $13.60 per day,” also for use in said division. Some of the air compressors in use in the Water Pipe Extension Division were attached "to small trucks and, while plaintiffs were employed as civil service hoisting engineers in said division, they were assigned at times to operate the air compressors on the “combination trucks and air compressors.” It was the practice and custom for the hoisting engineers assigned to operate the air compressors on the combination trucks and air compressors to drive same to and from the place of use of the air compressor. When the complaint was filed herein, five other similar positions were occupied by hoisting engineers of the same civil service grade and class as plaintiffs. The appropriation for “Chauffeurs (when acting as Hoisting Engineers on air compressors) ” was intended to cover persons employed to operate the air compressors on the combination trucks and air compressors.

Instead of plaintiffs being continued in the employment of the city in their status of permanent civil service hoisting engineers and assigned to operate the air compressors on the combination trucks and air compressors, they were laid off and five positions designated in the appropriation ordinances of 1940 and 1941 as “Chauffeurs (when acting as Hoisting Engineers on air compressors) ” were filled by three persons certified from the chauffeurs ’ civil service list and two temporary appointees. Plaintiffs performed their work satisfactorily, while employed by the city as civil service hoisting engineers. Upon their removal from their positions, they were placed on the civil service reinstatement list for hoisting engineers and were entitled to reinstatement and appointment to any existing vacancies in the position of hoisting engineer by virtue of and in accordance with their seniority. On November 19, 1940 plaintiffs made the following demand upon the commissioner of public works and the civil service commissioners:

“In accordance with the provisions of ‘An Act to Regulate the Civil Service of Cities’ and the rules pertaining thereto, we, and each of us, respectfully request and demand that you reinstate and appoint each of us to the positions of Hoisting Engineers now filled by temporary appointees in the Bureau of Water Pipe Extension.”

The complaint set forth the pertinent sections of the Civil Service Act applicable to the City of Chicago, which is entitled “An Act to Regulate the Civil Service of Cities” (pars. 39-77, ch. 241/2, Ill. Rev. Stat. 1939 [Jones Ill. Stats. Ann. 23.040-23.079]) and concluded with the prayer that a writ of mandamus issue directing defendants to call for employment, employ and reinstate plaintiffs in the order of their seniority in the positions of hoisting engineer now occupied by the aforesaid three civil service chauffeurs and the two temporary appointees under the designation of “Chauffeurs (when acting as Hoisting Engineers on air compressors).” As already shown, plaintiffs’ claimed right to the issuance of the writ of mandamus is confined on this appeal to the three positions of hoisting engineer, the occupants of which were certified from the civil service eligible list of chauffeurs and as to which positions the complaint was stricken and the suit dismissed on defendants’ motion.

Plaintiffs’ theory as stated in their brief is that “their amended and supplemental petition shows a clear and undeniable right to the writ of mandamus and that the action of defendants in employing chauffeurs to do the work of hoisting engineers under the designation of ‘Chauffeurs (when acting as Hoisting Engineers on air compressors),’ thereby depriving plaintiffs of their positions as Civil Service hoisting engineers, is in violation of the Civil Service Statutes of Illinois and the rules of the Civil Service Commission of Chicago.”

Defendants’ theory is that “the amended and supplemental' petition for mandamus fails to allege facts sufficient to show the existence of a vacancy in the classified Civil Service to which the plaintiffs have a right to be appointed”; that “the petition affirmatively shows that the position which plaintiffs seek to fill is not classified in the civil service”;-that “the petition fails to allege facts to show that plaintiffs possess the qualifications for the positions to which they seek to be appointed”; and that “the petition fails to allege facts sufficient to show a clear legal right in the plaintiffs to the position sought by them.”

Does the complaint allege facts sufficient to show that plaintiffs have a clear legal right to the issuance of the writ of mandamus ? The appropriation item in question requires no interpretation. The language used therein, “when acting as Hoisting Engineers on air compressors,” is plain and clearly defines the positions appropriated for under this item as hoisting engineers on air compressors. Under the civil service law and the rules of the commission no persons within the classified civil service other than hoisting engineers were qualified or eligible to operate air compressors. Whatever seeming doubt there may be in respect to this appropriation is solely the result of the wrongful attempt to make “chauffeurs” eligible for the positions of hoisting engineer. This the city could not do under the law and neither could the commission legally certify chauffeurs to fill the positions of hoisting engh neer nor could the Commissioner of Public Works legally employ as hoisting engineers the chauffeurs so certified.

Section 3 (par. 41) of the Civil Service Act, heretofore referred to, provides in respect to the classified service that “no appointments to any of such offices or places shall be made except under and according to the rules hereinafter mentioned. ’ ’ The commission has classified the position of hoisting engineer as Grade 3 (senior), Class F, Branch II and has fixed the compensation therefor at the prevailing scale of $13.60 per day. The commission has classified the position of chauffeur as Grade 2 (Junior), Class G, Branch II and has fixed the compensation for such position at the prevailing scale of $8 a day. There is no such civil service classification as “Chauffeurs (when acting as Hoisting Engineers on air compressors).” It should be noted that the rate of pay in the appropriation item involved herein was $13.60 a day, which is the rate of pay provided under the rules of the commission for the position of hoisting engineer, and that the rate of pay provided for chauffeurs under said rules was at that time $8 a day. It should be further noted that under the rules of the commission the position of hoisting engineer is in Class F, which embraces “positions the duties of which require training and ability in the operation or maintenance of equipment for the production of heat, light or power,” and that said position is in Grade 3, which is. denominated “Senior” grade and indicates positions of “intermediate responsibility.” It should also be noted that the position of chauffeur is in Class G, which embraces “positions the duties of which relate to . . . the conveyance of merchandise and passengers” and that said position is in Grade 2, which is denominated “Junior” grade and indicates “positions of routine duties.” It is readily apparent that the positions of hoisting engineer and chauffeur differ in class, grade or rank and character of work, and are not of the same approximate pay. The certification of civil service chauffeurs to perform the work of hoisting engineers, which work is of a different class and of a higher grade and rate of pay, is specifically prohibited by the Civil Service Act and the rules of the commission. The commission is bound by its own rules. (Ptacek v. People ex rel. Deneen, 194 Ill. 125; Collins v. County of Cook, 208 Ill. App. 262.)

There is no question but that a civil service employee, who is on a civil service reinstatement list and possesses the requisite seniority rights, is entitled to appointment to any vacancy in the particular position for which he was examined and that no discretion may be exercised as to such appointment. Neither can there be any question but that the operation of an air compressor requires special skill and ability nor that the operation thereof is clearly within the scope of the duties of a hoisting engineer, as such duties are defined by the rules of the commission.

While civil service employees may be laid off for lack of work or lack of funds and while the city has a right to actually and in good faith discontinue any positions when the same become no longer necessary or useful or for the purpose of economy, yet neither it nor the commission has any right to continue such positions in force for some other persons in an entirely different class and grade and thereby deprive employees who are fully eligible under the Civil Service Act and the rules of the commission of their lawful right to reinstatement and appointment to those positions.

The situation here is not unlike that presented in McArdle v. City of Chicago, 216 Ill. App. 343. There McArdle was certified after examination to the position of “Cement Tester” in the department of public works and he worked in such position from 1898 to 1908, when he was supplanted by one Parkes who was designated in the appropriation ordinance of the city as “Chief Tester in Charge of the Testing Division.” In 1909 McArdle was discharged for lack of work and, in holding that he was entitled to the position for which he had been examined, and to which he had been certified, this court said at p. 354:

“Obviously, Parlies had, in some measure, supplanted .him and was doing some of his work, and the demotion and laying off of the petitioner were brought about, not by the abolition of the office, nor by reason of lack of work, but in order that his place might be used for others. . . . One of the chief purposes of the Civil Service Law is to protect honorable and efficient employees from arbitrary ouster. The method of dismissal is as important as that of selection and appointment. If it may be determined by the mere necessities of political power, then the virtues of Civil Service are easily and ignominiously destroyed.”

In the instant case the positions which plaintiffs held as civil service hoisting engineers had not been abolished, notwithstanding the abortive attempt to accomplish that purpose by giving such positions a new and different designation in the appropriation ordinances. Nevertheless, plaintiffs were laid off for lack of work, although three civil service chauffeurs, who had never qualified by civil service examination for the position of hoisting engineer, were certified to the positions in question and employed in said positions 'when the complaint herein was filed and for some time prior thereto.

It will be recalled that the trial court held that the complaint was sufficient in so far as it pertained to the positions occupied by the two temporary employees. It is difficult to understand why it was not just as sufficient as- to the three positions, the occupants of which were certified from the civil service eligible list for chauffeurs, who also could only be considered as mere temporary appointees, when employed as hoisting engineers on air compressors.

In our opinion the complaint for mandamus is sufficient in that everything necessary to create the duties which plaintiffs seek to have performed by defendants is either expressly averred therein or may be fairly inferred from the express allegations thereof.

Defendants assert that the record shows that no proper demand was made “prior to the filing of the petition for mandamus” in that plaintiffs’ purported demand was that the commission “reinstate and appoint each of us to the positions of Hoisting Engineers now filled by temporary appointees in the Bureau of Water Pipe Extension.” Defendants state in their brief that “the demand was not for the appointment to positions occupied by civil service chauffeurs but is confined to ‘the positions of hoisting engineers now filled by temporary appointees.’” There is no merit in this contention. Even though the three occupants of the positions of hoisting engineer involved herein were certified from the civil service list of chauffeurs, under the law they can only be considered temporary appointees, because they occupied such positions without any legal right thereto and in direct violation of the civil service act and the rules of the commission.

Defendants insist that, since it is admitted that the positions designated “Chauffeurs (when acting as Hoisting Engineers on air compressors) ” are not in the classified civil service, “mandamus does not lie to compel the civil service commission to appoint plaintiffs to such positions.” Plaintiffs do not allege in their complaint any right to be appointed to positions in any other classification than their own — hoisting engineer — and they urge that, regardless of the devious attempt to disguise the appropriation in question for hoisting engineers under the designation “Chauffeurs (when acting as Hoisting Engineers on air compressors),” such appropriation must be held to have been made for hoisting engineers. We think plaintiffs ’ position in this regard is sound.

It is idle for defendants to urge that the complaint “fails to allege facts to show that plaintiffs possess the qualifications for the positions to which they seek to be appointed.” By this they undoubtedly mean that, since the appropriation was for “chauffeurs,” plaintiffs have made no showing that they possess the qualifications of a chauffeur. If such showing was necessary, they have made it, since they alleged that, while employed as civil service hoisting engineers on combination trucks and air compressors, they drove the trucks to and from the places of use of the air compressors. In any "event the appropriation was in legal contemplation for hoisting engineers and not for chauffeurs.

We are impelled to hold that plaintiffs’ complaint established a clear legal right to the issuance of a writ of mandamus, that they were entitled to appointment from the reinstatement list in the order of their seniority to the positions designated under the 1940 and 1941 appropriation ordinances as “Chauffeurs (when acting as Hoisting Engineers on air compressors)” and that the certifications from the civil service chauffeurs ’ eligible list to fill said positions and the employment of the persons so certified by the commissioner of public works were in violation of the provisions of the Civil Service Act and the rules of the civil service commission.

For the reasons stated herein the order of the circuit court of Cook county, in so far as it pertained to the positions of hoisting engineers occupied by the three civil service chauffeurs, is reversed and the cause is remanded with directions that a rule be entered on defendants to answer the amended and supplemental complaint and that such further proceedings be had as are not inconsistent with the views herein expressed.

Order reversed and cause remanded with directions.

Friend, P. J., and Scanlan, J., concur.