text:
    Esther Wadler, Appellee, v. Herman H. Wadler, Appellant.
    Gen. No. 43,096.

      Heard in the second division of this court for the first district at the June term, 1944.
    Opinion filed February 13, 1945.
    Released for publication March 5, 1945.
    Joseph Lustfield, of Chicago, for appellant; Ode L. Rankin, of Chicago, of counsel.
    Wetten, Pegler & Dale, of Chicago, for appellee; Milton Gerwin, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Defendant appeals, from a judgment rendered against him of $9,779.40 for arrears of alimony, support and maintenance of two minor children under the terms of a divorce decree entered in favor of plaintiff in 1930.

There is substantially no dispute as to the salient facts. It appears that on March 27, 1930 plaintiff obtained a divorce from defendant on personal service of summons. The decree required him to pay $25 a week for alimony and the support and maintenance of two minor children, whose custody was awarded to plaintiff. He ignored the decree and made no payments for several years. July 15, 1936 the matter came before the court on a rule to show cause, and the parties then agreed that the weekly payments of $25 be reduced to $30 a month. The modifying order entered on that day in pursuance of the agreement also contained the following provision: “And, It is further ordered, adjudged and decreed that the accrued alimony and support money for the minor children in arrears in the sum of $7,244.00 is expressly reserved and that judgment may be entered by this Court in the amount of $7,244.00 at the request of the plaintiff, Esther Wadler, at any time hereafter.”

Subsequently, August 3, 1943, plaintiff presented her petition alleging the essential facts pertaining to the decree, its modification, the adjudication as to arrears contained in the foregoing order of July 15, 1936, the minority of her children, and defendant’s failure or refusal to pay her any part of the sum found due or interest accruing thereon, and she asked that an order be entered directing him to pay her the sum of $7,244 and accrued interest amounting to $2,535.40, or an aggregate of $9,779.40, and that execution issue therefor.

Also on August 3, 1943, pursuant to notice, defendant presented a counter petition wherein he alleged that since July 15, 1936 he had faithfully complied with the modified order requiring him to pay $30 a month for alimony and support of the children, that his son, Seymour, had been in the armed forces of the United States for more than six months, and prior to -that time had been gainfully employed for about one year, that his daughter, Leonora, had also been employed for about a year on a part-time basis and since June 1943 had been steadily employed and supporting herself, that his wife, who had remarried (subsequent to 1936), had nevertheless been accepting the payments of $30 a month for the past year, and he asked that an order be entered for satisfaction of the decree. The chancellor gave both parties leave to answer the respective petitions and set them for hearing September 15 without further notice.

Plaintiff answered defendant’s petition on August 19, denying that he had faithfully complied with the orders of court, averring that he was then indebted to her in the sum of $9,779.40 for alimony, support and maintenance and interest thereon as decreed to.be due in the order of July 15, 1936, that defendant had theretofore been committed to jail on numerous occasions for failure to comply with the original decree, and that a writ of ne exeat had been issued by the court to prevent him from leaving its jurisdiction; she admitted that Seymour was then in the armed forces of the United States, averred that he was only 19 years of age and had voluntarily enlisted for the duration of the war and was entitled to the money reserved for his support and maintenance until he should attain the age of 21 years in order to enable him to complete his education after discharge from the’ army. Her answer denied that Leonora had been employed for the past year or that she had been self-supporting, averred that she had not yet reached the age of 18 and under the provisions of the decree was entitled to support and maintenance until she attained her majority. The answer further averred that defendant owns and operates a chain of food stores from which he derives a large income, that he is well able to support and maintain the children and to pay plaintiff the sum due and owing to her for alimony, support and maintenance for which he was still indebted, and she asked that defendant’s petition and the relief therein requested be denied.

Although defendant claims to have filed an answer to plaintiff’s petition interposing the- statute of limitations as a defense, the record discloses that no answer was ever filed, and defendant’s counsel could not produce a copy thereof at the hearing before the commissioner. Subsequently defendant sought to supply the missing answer, but the court denied his motion. The propriety of the court’s ruling, which is one of the points raised by defendant, will be hereafter considered and discussed.

When the respective petitions and plaintiff’s answer to defendant’s petition came on for hearing before the chancellor, a reference was had to Robert McCormick Adams, as special commissioner,' who, pursuant to a hearing at which both parties were present and represented by counsel, stated the issues and made the following findings and recommendations: “That the principal ground for equitable relief urged on behalf of the plaintiff is that the sum of $7,244 set out in the order of this Court on July 15,, 1936 is! a present obligation of the defendant, and, therefore, is a present vested right in the plaintiff, pursuant to which a money judgment should be entered . . . ; That the principal ground for defense urged on behalf of the defendant is that the amount set out in the above-mentioned order is a debt, and, therefore, is barred by the statute of limitations; it is also urged on behalf of the defendant that suit can be brought for a child’s support only when the obligation has arisen five years prior to the time the said suit is instigated.

“It is the opinion of the Commissioner, and he finds, that the $7,244 found by this Court in its order of July 15, 1936 to be accrued alimony and support and maintenance money is a present obligation of the defendant to the plaintiff, and, therefore, the plaintiff has a present vested right in the said sum, entitling her to a money decree. The Commissioner further finds that the necessary equitable considerations exist as to warrant an award of interest to accompany the said money decree. . . .

“In the case at bar the original decree for alimony and support and maintenance was by its nature a continuing order. It was subject to modification by the Court at any time during the natural life of the parties. Inasmuch as the decree for alimony and support and maintenance herein was a continuing order when the original decree was entered, it was also a continuing order when the Court on July 15, 1936 made a finding that $7,244 in alimony and support and maintenance had accrued in the plaintiff’s favor. The order did not terminate at that time but continued with the full power in the Court to modify it. Therefore, the statute of limitations did not bar the vested right the plaintiff had in the alimony and support and maintenance which was established by the original decree and which is still in full force at the present time.” The commissioner found that there was no basis for the other contentions made by defendant, and recommended a denial of. his petition. The chancellor followed the commissioner’s findings and recommendations, decreed that plaintiff have and recover of defendant $7,244, plus $2,535.40 interest, and costs, and that execution issue thereon. Defendant appeals from that decree.

Neither of the parties treats the provisions of the order of July 15, 1936 as a judgment or decree for $7,244, and the commissioner and chancellor evidently did not consider it as such; the finding in. that order was merely a computation of defendant’s arrears for alimony and support of the children from the • date of the original decree to July 15, 1936, when the modifying order was entered. Defendant’s sole de- . fense to plaintiff’s petition for judgment on the accrued instalments was the five-year statute of limitations contained in par. 16, sec. 15 of ch. 83, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 107.275]. In order to interpose that defense it was incumbent on him to plead it. He evidently intended to do so, but his answer was never filed. When he sought to supply the missing answer long after the hearing before the commissioner, he contended that it had been filed in cause No. 508190 instead of 508189, the instant proceeding, but the records of the clerk of the superior court showed that no documents had been filed in cause No. 508190 for some 14 years, and therefore we think the chancellor, in the exercise of his discretion, properly denied defendant’s motion to supply the missing answer. However, since the cause was tried before the commissioner upon the theory that the statute of limitations had been interposed as a defense, and because that question was considered and decided by him, and his findings and recommendations later approved by the chancellor, we feel constrained to consider the matter as if the statute had actually been pleaded as a defense.

The question therefore presented is whether lapse of time and the statute of limitations bars plaintiff’s right to have judgment and execution upon the amount due on instalments for alimony and support for children, where all the instalments accrued more than seven years before the supplemental petition for judgment thereon was filed. Defendant argues that since there is no specific provision in the Limitations Act for instalments of alimony, it falls within par. 16, sec. 15 of ch. 83, Ill. Rev. Stat. 1943, which fixes a five-year limitation on “all civil actions not otherwise provided for. ’ ’ In support of this contention two Hlinois decisions (Plaster v. Plaster, 53 Ill. 445, and Wolfe v. Wolfe, 303 Ill. App. 188) and several from other states are cited and discussed. In the Plaster case a divorce had been granted to the wife in 1854 with a gross allowance of alimony. A child, then three years of age, was awarded to her, but no provision was made for the child. In 1866 the wife filed a petition asking support for the child from the date of the divorce decree and for future maintenance. The trial court dismissed the petition. On appeal the Supreme Court held that the father was legally charged with the burden of supporting his child, but as to the claim for past maintenance the court ruled that the claim should be held to the five years next preceding the filing of the petition, without assigning any reason for its ruling. In the Wolfe case a divorced wife agreed to and accepted a smaller amount than was awarded to her by the order of court for a period of five years and thereby indicated her consent to the reduced amount. In discharging a rule to show cause the court simply enforced an oral agreement to take less than had been decreed. The statute of limitations was not presented to nor considered by the court, nor was the doctrine of laches applied to the circumstances. None of the cases cited is applicable to the circumstances here presented.

It was held as early as 1899 in Harding v. Harding, 180 Ill. 592, that “The decree of the court awarding preliminary alimony is a money decree, and bears interest under the statute. (Hurd’s Stat. 1897, chap. 74, sec. 3, p. 973.) ” That rule was followed in Wallace v. Wallace, 201 Ill. App. 323, wherein it was also held that a decree for the payment of permanent alimony was a decree for the payment of money. Plaintiff had there sought to subject certain lands of defendant to a lien for accrued and unpaid alimony due her. No execution ever issued against the property, and although the court denied plaintiff the right to a lien without first complying with the statute, it said that “It will not be questioned that a decree or-, dering the payment of a certain sum semiannually as alimony is a decree for the payment of money.”

Under the current weight of authority in this and other states, a decree such as we have before us can be enforced either by a rule to show cause why the defendant should not be attached for contempt or by execution. So far as we are able to ascertain, the five-year statute of limitations has not been applied in either instance. In Deen v. Bloomer, 191 Ill. 416, a contempt order for failure to pay alimony due for a period in excess of seven years was upheld. The court there said: “He during the seven years made no complaint as to the amount of allowance, but only when attached for contempt does he attempt to resort to that excuse [inability to pay] for his failure to comply with the order of the court.” In Kaiser v. Kaiser, 213 Mich. 660, 181 N. W. 993, a delay of ten years in attempting to enforce alimony payments was held not to constitute laches and the court held that the decree for instalments could be enforced. In Gordon v. Baker, 182 Ill. App. 587, the plaintiff in 1879 obtained a decree for alimony in instalments and three years thereafter she remarried. The court held that a divorced wife abandons the provision made for her support out of the estate of her former husband by the decree of the court when she remarries. In determining whether she could enforce the decree 30 years after its entry the court refused to hold that the alimony decree was barred by the mere passage of time, but denied relief solely on the ground of estoppel. In Price v. Price, 80 Colo. 158, 249, Pac. 648, the wife sought by contempt proceedings to enforce payments of alimony due under a decree that had been entered 15 years before her petition was filed. In the interim she had remarried a second and a third time. The court held that these circumstances, together with the long delay, precluded her from obtaining relief by contempt proceedings. Ashby v. Ashby, 174 Wis. 549, 183 N. W. 965, was there cited with approval. In that case the divorce decree awarded the wife $10 a month as alimony, but the husband, after complying with the order for several years, made" no further payments for 44 years, in reliance on the advice of his attorney. During that period plaintiff made every effort to support herself and her child, and had been compelled, in addition to performing hard manual labor, to depend in a degree upon the aid and assistance offered to her by her daughter and son-in-law. During all those years apparently no demand was made for the payment in arrears of alimony, and no application was made to the court to enforce payment. Upon the hearing of a rule to show cause, it appeared that plaintiff was then 75 years of age and physically unable to perform labor or to -earn enough to provide the necessities of life. Defendant, on the other hand, was receiving a pension from the United States government of $30 to $50 a month, owned three small parcels of real estate worth approximately $2,500, and had shortly before the petition was presented, sold and conveyed another piece of land valued at some $7,600. These various items constituted the entire assets of his estate. In that proceeding defendant’s counsel contended that under the statute of limitations, plaintiff’s petition should be dismissed, and that she was guilty of laches, but the court held, upon the authority of Campbell v. Campbell, 37 Wis. 206, that inasmuch as the judgment for alimony was a continuing judgment, always subject to modification by the court during the life of the parties, the statute of limitations cannot and does not apply, and that the wife’s rights were not lost by reason of her passivity and inaction, but during all that time the obligation rested upon defendant to comply with the provisions of the judgment. However, under the circumstances, the court thought it inequitable to enforce the judgment as it then stood, and advised a revision and modification thereof in view of the changed and' altered circumstances of the parties, so as to award the wife a reasonable amount in lieu of past-due alimony.

If it be assumed that a decree for alimony is a money decree, as indicated by the foregoing decisions, it is difficult to perceive why the 20-year statute of limitations applicable to judgments, as provided in par. 24b, sec. 25, ch. 83, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 107.284(2)], does not apply, and since plaintiff filed her petition for a money judgment long before any of the payments could have been barred by the 20-year limitation, the amount awarded her was manifestly proper.

Defendant does not question the correctness of the computation made in the order of July 15, 1936, namely, $7,244, but he argues, without citing any supporting authority, that there is no basis for the allowance of interest on that sum, since “The law makes no provision for interest.” Holding as we do that the original decree of divorce directing the defendant to pay weekly instalments of alimony, support and maintenance for the children, was a decree for the payment of money, it would follow that under ch. 74, par. 3, sec. 3, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 67.03], such a judgment would draw interest at the rate of 5 per cent until satisfied. In Harding v. Harding, 180 Ill. 592, heretofore cited, the court expressly held that the decree awarding preliminary alimony was a money decree and bore interest under the foregoing statute. Dinet v. Eigenmann, 80 Ill. 274, and Becker v. Becker, 79 Ill. 532, are to the same effect. Furthermore, it appears from the record that no objection was ever raised by the defendant before the commissioner as to the amount of plaintiff’s claim or as to the allowance of interest. He admitted substantially all the facts alleged in plaintiff’s petition and relied only on the statute of limitations as a defense, and his counsel indicated that if the commissioner and court should hold that that defense was unavailing he ought to be given credit for the amounts that were overpaid while the son and daughter were working. Neither of the latter considerations impressed the commissioner or the chancellor, and we think they were properly disregarded because they bore no relation to the subject matter of the litigation, wherein plaintiff sought judgment for arrears in alimony and support of the children prior to July 1936, when the children were about 10 and 12 years of age, respectively, and defendant sought only a satisfaction of the decree because plaintiff had remarried and both children were emancipated, as he claimed, and also because he had complied with the decree, as modified in 1936.

It is undisputed that defendant deliberately and wilfully defied the decree of divorce and for the first six years thereafter placed the entire burden of rearing his children on plaintiff. It was not until a rule to show cause had been presented that he took any steps to secure a modification of the decree. Before that he had paid substantially nothing. His arrears in alimony were then correctly computed, and the court reserved jurisdiction over the cause to enter judgment in favor of plaintiff at any time thereafter. Since her claim is not barred by the statute Oof limitations, laches or estoppel, we are of opinion that the chancellor properly entered the judgment order for the amount due and interest thereon, and the judgment is therefore affirmed.

Judgment affirmed.'

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


source: Caselaw Access Project

author: Mr. Justice Friend

license: Public Domain

text:
    People of State of Illinois ex rel. Leopold Schutz, Appellee, v. Frank G. Thompson, Director of Department of Registration and Education of State of Illinois et al., Appellants.
    Gen. No. 43,102.
    Heard in the second division of this court for the first district at the Tune term, 1944.
    Opinion filed February 13, 1945.
    Released for publication March 5, 1945.
    George F. Barrett, Attorney General, for appellants ; William C. Wines, Assistant Attorney General, of counsel.
    Maurice L. Davis, of Chicago, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

Relator brought an action in mandamus to compel Frank G. Thompson as director, and Philip M.-Harman, as superintendent, of the Department of Registration and Education of Illinois, to grant him access to the examination of candidates for licenses to practice medicine in all its branches. The cause was heard upon the complaint, respondents’ answer, relator’s reply, and evidence adduced upon the hearing. The judgment awarding the writ of mandamus from which respondents appeal, found that the cause was duly and regularly heard by the court upon the pleadings and evidence offered by the respective parties; that the court was fully advised in the premises; that the allegations contained in the pleadings of the relator are true; that.he possesses the requisite professional education and training to permit him to take an examination, as provided in the Medical Practice Act of the State of Illinois, for the purpose of procuring a license to practice medicine in all its branches in this State, and that the relief sought ought to be allowed.

From the essential allegations of the complaint it appears that relator, who was born in Germany in 1886, attended public school in that country from 1892 to 1897 and high school from 1897 to 1906, successfully completing all the prescribed courses which embraced the studies usually given in grammar schools, high schools and liberal arts colleges in the State of lilinois; that he pursued his medical studies at various universities in Germany at the respective times following : University of Breslau, April 1, 1906 to July 15, 1906; University of Marburg, Octobér 1, 1906 to March 31, 1907; University of Munich, April 15, 1907 to July 15, 1907; University of Breslau, October 1, 1907 to March 31, 1908; University of Munich, April 15, 1908 to July 15, 1908; University of Berlin, April 1, 1909 to August 1,1909; and University of Munich, October 1, 1909 to January 15, 1912; that in and' through these studies he completed all the courses required for graduation and on January 12,1912 satisfactorily passed the governmental examination for physician given in Munich, Germany and was accordingly on March 19, 1913 licensed as a physician in Germany, a true copy of the license issued to him being attached to the complaint as an exhibit; that on May 1,1917 the University of Breslau awarded to him the degree of doctor of medicine, a copy of his diploma being also attached as an exhibit; that at and before the time he qualified for the degree of doctor of medicine the. University of Breslau was a reputable medical college in good standing, within the meaning of the Medical Practice Act (Ill. Rev. Stat. 1943, ch. 91 [Jones Ill. Stats. Ann. 79.01 et seq.]) of the State of Illinois; that the university which awarded him the degree at that time required substantially the same prerequisites for graduation as those required by the Medical Practice Act of Illinois, and that all the universities attended by Mm were reputable medical colleges in good standing, within the meaning of the Act; that he practiced medicine as a physician in Germany for more than 20 years, but on October 1, 1938 he was deprived of his license because he was a non-Aryan; that he had committed no offense against the laws of Germany, and the revocation of his license was not a punishment for any crime but was wholly because of discrimination by the German Reich against so-called “non-Aryans”; that when he left Germany in February 1939 the transcripts of his credits were confiscated by the Gestapo, and it is impossible for him to secure copies thereof because Germany is an enemy country, and in any event would not permit the furnishing of any such copy of records for a non-Aryan; and that he is able and ready to make proof upon hearing, of his having successfully completed medical and premedical studies sufficient to warrant his admission to said examination of his qualifications for the practice of medicine in all its branches in the State of Illinois, but that “the Department of Registration and Education has improperly, arbitrarily and unreasonably refused to consider any proofs other than transcripts of [his] medical and premedical studies.”

Respondents concede that as part of his credentials relator submitted satisfactory evidence within the provisions of section á of the Medical Practice Act, that he was a person over the age of 21 years, of good moral character, and that he had made a declaration of intention to become a citizen of the United States but they aver in their answer that “it has been a rule of the Department of long standing requiring applicants for medical licenses to submit complete transcripts of medical and premedical records with applications,” and when he applied for admission to the medical examination, submitting a true copy of the license issued to him as a physician in Munich, Germany, and also a copy of his diploma awarding him the degree of doctor of medicine from the University of Breslau, he was advised by the superintendent of registration that it would be necessary for him to also forward for verification by the department his ‘1 original study books, a record of your premedical studies, and your Absolutorium Certificate. These records must be accompanied by legalized translations.” Since he was unable to furnish these records for the reasons alleged in the complaint, his application was denied. In the absence of a report of proceedings, and giving effect to the finding in the order awarding the writ of mandamus, we must assume that the evidence adduced upon trial was sufficient to establish his qualifications for admission to the examination (Addante v. Pompilio, 303 Ill. App. 172), and the only question presented is whether, in the light of the circumstances alleged in the complaint, the rule or regulation of the department, requiring applicants to submit transcripts of medical and premedical records, is reasonable in its general terms and intent, and if not, whether mandamus will lie to compel respondents to consider. other competent evidence of relator’s qualifications to be admitted to the examination.

Section 16d of the Medical Practice Act provides that the department shall have power and it shall be its duty “1, To make rules for establishing reasonable minimum standards of educational requirements to be observed by medical colleges, or by any professional school, college, or institution teaching any system or method of treating human ailments, . . . and to determine the reputability and1 good standing of all schools, colleges, and institutions now, heretofore, or hereafter existing; 2, to require satisfactory proof whether any medical college, or professional school, college or institution teaching any system or method of treating human ailments, . . . enforced at any particular time in the past the standard of preliminary education requisite to admission thereto; and 3, to determine the standard of literary or scientific colleges, high schools, . . . graded schools, and the like, in the discharge of its duties.”

The rule is well established in this state that courts may review the regulations of the department to determine whether they are fair, reasonable and impartial. In Kettles v. People, 221 Ill. 221, the court held that the statute conferred on the board of examiners the right to make such reasonable rules and regulations as in their judgment and discretion were deemed necessary, and a like discretion to determine what was a reputable college or school by reference to the standard of educational requirements adopted by the board; but that no arbitrary powers were granted and the enactment required rules to be reasonable, and whether the rules and regulations of the board were uniform and reasonable and in accordance with the law was a question the courts would decide when presented to them. In People v. Kane, 288 Ill. 235, the court again referred to the provisions of the Act that • all examinations should be conducted under rules and regulations prescribed by the board and held that such rules and regulations, if made, would be subject to review by the courts to determine whether they were reasonable or not (citing Kettles v. People). In People v. Love, 298 Ill. 304, a regulation of the department to the effect that relator and his class of physicians were required to accompany their application by letters of recommendation as to their moral and professional character from at least two reputable medical men or osteopathic physicians, was held to be arbitrary and unreasonable because “the prejudice existing against chiropractors by medical men and osteopaths is known to be intense and in many cases very unreasonable. For a chiropractor to have to conform to such a regulation would in all probability result in his being excluded from any examination whatever by reason of his inability to obtain such a certificate, although he might be able to establish a good moral character and a good professional standing by good, competent men in his own or other professions or callings outside of the medical profession,” and.it was held that rules and regulations of the board were subject to review by the courts to determine whether or not they were reasonable or unreasonable and discriminatory (citing People v. Kane). In People v. Witte, 315 Ill. 282, it was held that the Act itself fixes the minimum standards of educational requirements and “the department is not permitted, under the Act, arbitrarily to prescribe minimum standards of educational requirements nor conduct examinations of applicants for licenses according to its arbitrary whim or caprice. The rules and regulations promulgated by the department are subject to review by the courts to determine whether or not they are reasonable [citing Kettles v. People].”

In this proceeding relator was a graduate of a medical college before the passage of the Medical Practice Act in 1923. As to such applicants, section 5 of the statute provides that at the time of graduation the medical college must have required as a prerequisite to graduation a four-year course of instruction and that the college must have been reputable and in good standing in the judgment of the department. It also specifies the number of months’ school attendance required and the minimum time of the school course, and prescribes minimum standards of professional education to be enforced by the department. It does not appear from the record before us that the department has fixed any other standard than that prescribed by the Act. Nothing in the statute sets forth the subjects which are required to have been studied or the time required to have been spent on such subjects or the school grades. required to have been .received in such studies. Hence the standards which are prescribed in the Act are the only ones by which the qualifications of applicants are to be measured. A rule of the department adopted prior to 1942 provides that proof of the completion of a course of studies in a medical school and graduation therefrom shall he evidenced by a diploma which shall be submitted to the department by each applicant. Relator completed studies at medical colleges and high school for periods in excess of those required by the Act and received a diploma evidencing his degree as doctor of medicine from the University of Breslau in 1917. He produced and delivered his diploma to the department. The Act further requires that the applicant shall be a graduate of a medical college which is reputable and in good standing in the judgment of the department. From the record before us it must be assumed that the colleges attended by the relator were reputable and in good standing in the judgment of the department. The rule of the department provides that a diploma from such college shall evidence the fact of graduation. Thus relator complied with the statutory provisions and with the rule of the department prescribing what might serve to evidence the fact of graduation.

It is conceded by respondents that “the court may take judicial notice of the facts of current history;” that “due to the tragic convulsions of Europe, many exiles from that unhappy continent have found asylum within the shores of the United States ’ ’; that “undoubtedly many of these refugees possess professional or other technological skill which could be exploited to the advantage of the people of the State of Illinois”; but it is urged that since there are others whose lack of qualifications is such that to permit them to hold licenses to practice professions such as medicine, with its virtual control over the life and death of patients, would be highly dangerous, the department has long insisted that all candidates for the license to practice medicine present certain specified credentials, which include a showing of the courses pursued in the institutions of higher learning, to be certified and authenticated by the institutions themselves, and not otherwise.

The primary purpose of the Medical Practice Act is to safeguard the public health by prescribing standards of medical and premedical studies for those who shall be permitted to treat human ailments in all their branches, and the department of registration and education was created to determine in the first instance whether the applicant has submitted satisfactory evidence that “he has the preliminary and professional education required by this Act” (sec. 4), and if so, to admit him to the examination and issue a license if he passes successfully within the contemplation of the statute. The Act provides that each applicant for examination shall submit evidence satisfactory to the department. The proof required by the rule goes to the form, rather than to the substance of the evidence, and if an applicant can satisfy the department as to his qualifications by other satisfactory evidence, the department should be required to consider it and not arbitrarily insist on documents which admittedly cannot be produced. Under the “best evidence rule” which from early times has been repeatedly enunciated by the courts, the highest degree of proof of which the case from its nature is susceptible, must, if accessible, be produced; but where the evidence offered, while not of the highest degree or of the most satisfactory kind, is otherwise competent and is the best evidence which under the circumstances can be produced, and the absence of evidence of a higher degree or of. a more conclusive character is not attributable to the fault of the party seeking to prove the fact in controversy, then the requirements of the best evidence rule are complied with and the evidence is admissible (32 C. J. S. Evidence, secs. 777, 779, pp. 701 et seq.). For the department to insist upon a regulation, without regard to the circumstances, which is more exacting than the commonly accepted rules of evidence under which courts operate daily, is an arbitrary and unreasonable requirement; and, under present conditions, to insist on original study books and records of Grerman universities accompanied by “legalized translations,” is a requirement impossible of fulfillment, tending to establish nothing prescribed by any standard fixed by the Act, and therefore unreasonable.

Accordingly, we are of opinion that the order of the superior court should be affirmed, and it is so ordered.

Order affirmed.

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


author: Mr. Justice Scanlan

text:
    Alfred Vischer, Jr., Appellant, v. Dow Jones and Company, Inc., et al., Appellees.
    Gen. No. 42,830.

      Heard in the second division of this court for the first district at the October term, 1943.
    Opinion filed February 13, 1945.
    Released for publication March 5, 1945.
    Walter Hamilton, of Chicago, for appellant.
    Miller, Gorham, Wescott & Adams, of Chicago, for appellees; Herbert C. De Young and James A. C. Kelly, both of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Plaintiff filed his complaint in equity against Dow Jones & Company, Inc., a New York corporation; Financial Press Companies of America, a voluntary, trust of Massachusetts, and Illinois Telegraph News Company, an Illinois corporation. Defendant Dow Jones & Company, Inc., filed a limited and special appearance for the sole purpose of moving to quash the purported service upon it, on the ground that it is not present in the State of Illinois and subject to the jurisdiction of the Superior court. Defendant Financial Press Companies of America filed a like appearance and a like motion, and in its motion it also contended that it is not a legal entity which can be sued. After affidavits had been filed in support of the said motions and against them the trial court sustained both motions. Defendant Illinois Telegraph News Company-filed a motion to dismiss the complaint for want of equity. This motion was also allowed. Plaintiff appeals.

For the purposes of this appeal it is sufficient to state that plaintiff, in his complaint, seeks a rescission of an oral contract of employment alleged to have been made between him and Dow Jones & Company, on March 7, 1930; a reconveyance of certain patents granted on certain mechanisms pertaining • to news tickers which plaintiff invented while in the employ of Dow Jones & Company and Dow Jones & Company, Inc., and an accounting. The complaint alleges that it was agreed that plaintiff was to head a new department to produce news tickers and that his compensation was to be $10,000 per year, payable monthly; that he was to assign all patent applications for improvements of the news ticker invented by him during the term of his employment to Dow Jones & Company or its designee, and that his employment should continue during the life of the patents obtained. The complaint further alleges that Dow Jones & Company, Inc., was incorporated on November 21, 1930, and assumed the benefits and obligations of the employment contract, and that it continued to pay plaintiff his salary of $10,000 per year until November 15, 1932, when said defendant notified plaintiff that his services were no longer desired, and that they would terminate as of January 1, 1933. The complaint further alleges that a fiduciary relationship existed between plaintiff and Dow Jones & Company and that that Company and its successor, Dow Jones & Company, Inc., were guilty of fraud which induced the making of the contract because it was the intention of Dow Jones & Company, at the time. of the making of the contract, to have plaintiff establish the new department for the manufacture of news tickers and then discharge him. The complaint further alleges that “The Financial Press Companies of America, owns and controls all or substantially all of the capital stock of all the other defendants;” and “it is the parent corporation of all said defendants.”

Plaintiff contends that the trial court erred in sustaining the motion of defendant Dow Jones & Company, Inc., to quash the summons and purported return of service. This contention involves the question as to whether or not Dow Jones & Company, Inc., was doing business within this State in such a degree, as to subject it, a New York corporation, to the jurisdiction of our courts. Where the business shown in a given case is, in substance, nothing more than mere solicitation of business it is not sufficient to subject a foreign corporation to the local jurisdiction. Bull & Co. v. Boston & M. R. R., 344 Ill. 11, cited by the instant defendant, is a case in point. One of the cases cited in support of the trial court’s ruling is Green v. Chicago, Burlington Quincy Ry., 205 U. S. 530 (1907). There the plaintiff appealed from a ruling of the United States Circuit Court holding that the defendant was not doing business within the Eastern District of Pennsylvania in such a manner and to such an extent as to warrant the inference that through its agent it was present there. The opinion states the facts as follows (pp. 532, 533):

“The eastern point of the defendant’s line of railroad was at Chicago, whence its tracks extended westward. The business for which it was incorporated was the carriage of freight and passengers, and the construction, maintenance and operation of a railroad for that purpose. As incidental and collateral to that business it was propel, and, according to the business methods generally pursued, probably essential, that freight and passenger traffic should be solicited in other parts of the country than those through which the defendant’s tracks ran. For the purpose of conducting this incidental business the defendant employed Mr. Heller, hired an office for him in Philadelphia, designated him as district freight and passenger agent, and in many ways advertised to the public these facts. The business of the agent was to solicit and procure passengers and freight to be transported over the defendant’s line. For conducting this business several clerks and various travelling passenger, and freight agents were employed, who reported to the agent and acted under his direction. He sold no tickets and received no payments for transportation of freight. When a prospective passenger desired a ticket, and applied to .the agent for one, the agent took the applicant’s money and procured from one of the railroad's running west from Philadelphia a ticket for Chicago and a prepaid order, which gave to the applicant, upon his arrival at Chicago, the right to receive from the Chicago, Burlington and Quincy Bail-road a ticket over that road. Occasionally he sold to railroad employes, who already had tickets over intermediate lines, orders for reduced rates over the defendant’s lines. In some cases, for the convenience of shippers who had received bills of lading from the initial line for goods routed over the defendant’s lines, he gave in exchange therefor bills of lading over the defendant’s line. In these bills of lading it was recited that they should not be in force until the freight had been actually received by the defendant.”

The Supreme Court held (jp. 533) that “The business shown in this case was in substance nothing more than that of solicitation,” and the judgment of the Circuit court was affirmed. But the Green case was followed by International Harvester Co. v. Kentucky, 234 U. S. 579 (1914), which is probably the leading case upon the question now before us. To quote from the opinion of the court in that case (pp. 582-589) :

“It appeared that prior to October 28, 1911, before this indictment was returned, the Harvester Company had been doing business in Kentucky and had designated Louisville, Kentucky, as its principal place of business, in compliance with the statutes of Kentucky in that respect. It further appeared that the Company had revoked the agency of one who had been appointed under the Kentucky statute and had not appointed anyone else upon whom process might be served.
“. . . We come then to the first question in this case, which is, Whether under the circumstances shown in this case the Harvester Company was carrying on business in the State of Kentucky in such manner as to justify the courts of that State in taking jurisdiction of complaints against it.
“For some purposes a corporation is deemed to be a resident of the State of its creation, but when a corporation of one State goes into another in order to be regarded as within the latter it must be there by its agents authorized to transact its business in that State. The mere presence of an agent upon personal affairs does not carry the corporation into the Foreign state. Tt has been frequently held by this court, and it can no longer be doubted that it is essential to the rendition of a personal judgment that the corporation be ‘doing business’ within the State. St. Louis S. W. Ry. v. Alexander, 227 U. S. 218, 226, and cases there cited. As was said in that case, each case must depend upon its own facts, and their consideration must show that this essential requirement of jurisdiction has been complied with and that the corporation is actually doing business within the State.
“In the case now under consideration the Court of Appeals of Kentucky found, with warrant for the conclusion, that the Harvester Company’s method of conducting business might be shown to the best advantage from the general instruction of the company to its agents of date November 7, 1911, as follows:
“ ‘The Company’s transactions hereafter with the people of Kentucky must be on a strictly interstate commerce basis. Travelers negotiating sales must not hereafter have any headquarters or place of business in that State, but may reside there.
“ ‘ Their authority must be limited to taking orders, and all orders must be taken subject to the approval of the general agent outside of the State, and all goods must be shipped from outside of the State after the orders have been approved. Travelers do not have authority to make a contract of any kind in the State of Kentucky. They merely take orders to be submitted to the general agent. If any one in Kentucky owes the Company a debt, they may receive the money, or a check, or a draft for the same but they do not have any authority to make any allowance or compromise any disputed claims. ■ When a matter cannot be settled by payment of the amount due, the matter must be submitted to the general or collection agent, as the case may be, for adjustment, and he can give the order as to what allowance or what compromise may be accepted. All contracts of sale must be made f. o. b. from some point outside of Kentucky and the goods become the property of the purchaser when they are delivered to the carrier outside of the State. Notes for the purchase price may be taken and they may be made payable at any bank in Kentucky. All contracts of any and every kind made with the people of Kentucky must, be made outside of that State, and they will be contracts governed by the laws of the various States in which we have general agencies handling interstate business with the people of Kentucky. For example, contracts made by the general agent at Parkersburg, W. Va., will be West Virginia contracts.
“ ‘If any one of the Company’s general agents deviates from what is stated in this letter, the result will be just the same as if all of them had done so. Anything that is done that places the Company in the position where it can be held as having done business in Kentucky, will not only make the man transacting the business liable to a fine of from one hundred to one thousand dollars for each offense, but it will make the Company liable for doing business in the State without complying with the requirements of the laws of the State. We will, therefore, depend upon you to see that these instructions are strictly carried out.’
“Taking this as the method of carrying on the affairs of the Harvester Company in Kentucky, does it show a doing of business within that State to the extent which will authorize the service of process upon its agents thus engaged?
“Upon this question the case is a close one, but upon the whole we agree with the conclusion reached by the Court of Appeals, that the Harvester Company was engaged in carrying on business in Kentucky. We place no stress upon the fact that the Harvester Company had previously been engaged in doing business in Kentucky and had withdrawn from that State for reasons of its own. Its motives cannot affect the legal questions here involved. In order to hold it responsible under the process of the state court it must appear that it was carrying on business within the State at the time of the attempted service. As we have said, we think it was. Here was a continuous course of business in the solicitation of orders which were sent to another State and in response to which the machines of the Harvester Company were delivered within the State of Kentucky. This was a course of business, not a single transaction. The agents not only solicited such orders in Kentucky, but might there receive payment in money, checks or drafts. They might take notes of customers, which notes were made payable, and doubtless were collected, at any bank in Kentucky. This course of conduct of authorized agents within the State in our judgment constituted a doing of business there in such wise that the Harvester Company might be fairly said to have been there, doing business, and amenable to the process of the courts of the State.
“It is argued that this conclusion is in direct conflict with the case of Green v. Chicago, Burlington & Quincy Ry., 205 U. S. 530. We have no desire to depart from that decision, which, however, was an extreme case. There the Railway Company, carrying-on no business in Pennsylvania, other than that hereinafter mentioned, and having- its organization and tracks in another State, was sought to be held liable in the Circuit Court of the United States for the Eastern District of Pennsylvania by service upon one Heller, who was described as an agent of the corporation. As incidental and collateral to its business proper.the Company solicited freight and passenger traffic in other parts of the country than those through which its tracks ran. For that purpose it employed Heller, who had an office in Philadelphia, where he was known as district freight and passenger agent, to procure passengers and freight to be transported over the Company’s line. He had clerks and travellingpassenger and freight agents who reported to him. He sold no tickets and received no payment for the transportation of freight, but took the money of those desiring- to purchase tickets and procured from one of the railroads running west from Philadelphia a ticket for Chicago and a prepaid order which gave the holder the right to receive from the Company in Chicago a ticket over its road. Occasionally he sold to railroad employes, who already had tickets over intermediate lines, orders for reduced rates over the Company’s line. In some cases for the convenience of shippers who had received bills of lading from the initial line for goods routed over the Company’s line, he exchanged bills of lading over its line, which were not in force until the freight had been actually received by the Company. Summarizing these facts, Mr. Justice Moody, speaking for the court, said (p. 533): ‘The business shown in this case was in substance nothing more than that of solicitation. Without undertaking to formulate any general rule defining what transactions will constitute “doing business” in the sense that liability to service is incurred, we think that this is not enough to bring the defendant within the district so that process can be served upon it.’
“In the case now under consideration there was something more than mere solicitation. In response to the orders received, there was a continuous course of shipment of machines into Kentucky. There was authority to receive payment in money, check or draft, and to take notes payable at banks in Kentucky.
“It is further contended that as enforced by the decision of the Kentucky court the law, in its relation to interstate commerce, operates to burden that commerce. It is argued that a corporation engaged in purely interstate commerce within a State cannot be required to submit to regulations such as designating an agent upon whom process may be served as a condition of doing such business, and that as such requirement cannot be made the ordinary agents of the corporation, although doing interstate business within the State, cannot by its laws be made amenable to judicial process within the State. The contention comes to this, so long as a foreign corporation engages in interstate commerce only it is immune from the service of process under the laws of the State in which it is carrying on such business. This is indeed, as was said by the Court of Appeals of Kentucky, a novel proposition, and we are unable to find a decision to support it, nor has one been called to our attention. < Í
“We are satisfied that the presence of a corporation within a State necessary to the service of process is shown when it appears that the corporation is there carrying on business in such sense as to manifest its presence within the State, although the business transacted may be entirely interstate in its character. In other words, this fact alone does not render the corporation immune from the ordinary process of the courts of the State.
“It follows that the judgment of the Court of Appeals of Kentucky must be Affirmed.” (Italics ours.)

Tauza v. Susquehanna Coal co., 220 N. Y. 259, followed the ruling in the International Harvester Co. case. The opinion in the Tausa case was written by Judge Cardozo. To quote from the opinion (pp. 265-268):

“. . . The defendant’s principal office is in Philadelphia; but it has a branch office in New York, which is in charge of one Peterson. Peterson’s duties are described by the defendant as those of a sales agent. He has eight salesmen under him, who are subject to his orders. A suite of offices is maintained, in the Equitable Building in the city of New York, and there the sales agent and his subordinates make their headquarters. The sign on the door is Susquehanna Coal Company, Walter Peterson, sales agent. ’ The offices contain eleven desks and other suitable equipment. In addition to the salesmen there are other employees, presumably stenographers and clerks. The salesmen meet daily and receive instructions from their superior. All sales in New York are subject, however, to confirmation by the home office in Philadelphia. The duty of Peterson and his subordinates is to procure orders which are not binding until approved. All payments are made by customers to the treasurer in Philadelphia; the salesmen are without authority to receive or indorse checks. A bank account in the name of the company is kept in New York, and is subject to Peterson’s control, but the payments made from it are for the salaries of employees, and for petty cash disbursements incidental to the maintenance of the office. The defendant’s coal yards are in Pennsylvania, and from there its shipments are made. They are made in response to orders transmitted from customers in New York. They are made, not on isolated occasions, but as part of an established course of business. In brief, the defendant maintains an office in this state under the. direction of a sales agent, with eight salesmen, and with clerical assistants, and through these agencies systematically and regularly solicits and obtains orders which result in continuous shipments from Pennsylvania to New York.
“To do these things is to do business within this state in such a sense and in such a degree as to subject the corporation doing them to the jurisdiction of our courts. The decision of the Supreme Court in International Harvester Co. v. Kentucky (234 U. S. 579) is precisely applicable. There sales agents in Kentucky solicited orders subject to approval of a general agent in the home state. They did this, not casually and occasionally, but systematically and regularly. Unlike the defendant’s salesmen, they did not have an office to give to their activities a fixed and local habitation. The finding was that travelers negotiating sales were not to have any headquarters or place of business in that state, though they were permitted to reside there (234 U. S. at p. 584). Yet because their activities were systematic and regular, the corporation was held to have been brought within Kentucky, and, therefore, to be subject to the process of the Kentucky courts. ‘Here,’ said the court (p. 585), ‘was a continuous course of business in the solicitation of o-rders which were sent to another State and in response to which the machines of the Harvester Company were delivered within the State of Kentucky. This was a course of business, not a single transaction.’ That case goes farther than we need to go to sustain the service here. It distinguishes Green v. Chicago, B. & Q. Ry. Co. (205 U. S. 530) where an agent in Pennsylvania solicited orders for railroad tickets which were sold, delivered and used in Illinois. The ordérs did not result in a continuous course of shipments from Illinois to Pennsylvania. The activities of the ticket agent in Pennsylvania brought nothing into that state. In the case at bar, as in the International Harvester case, there has been a steady course of shipments from one state into the other. The business done in New York may be interstate business, but business it surely is.
“The defendant refers to cases in which corporations, whose situation was not unlike the defendant’s, have been held not to be doing business in this state within the meaning of section 15 of the General Corporation Law and kindred statutes (People ex rel. Tower Co. v. Wells, 98 App. Div. 82; 182 N. Y. 553; Hovey v. De Long H. & E. Co., 211 N. Y. 420; Cummer Lumber Co. v. Assoc. Mfrs. M. F. Ins. Corp., 67 App. Div. 151; 173 N. Y. 633; Penn Collieries Co. v. McKeever, 183 N. Y; 98). But activities insufficient to make out the transaction of business, within the meaning of those statutes, may yet be sufficient to bring the corporation within the state so as to render it amenable to process (Int. Text Booh Co. v. Tone, decided herewith [220 N. Y. 313]). In construing statutes which license foreign corporations to do business within our borders we are to avoid unlawful interference by the state with interstate commerce. The question in such cases is not merely whether the corporation is here, but whether its áctivities are so related to interstate commerce that it may, by a denial of a license, be prevented from being here (International Text Book Co. v. Pigg, 217 U. S. 91). ‘A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score’ (U. S. v. Jin Fuey Moy, 241 U. S. 394, 401; Hovey v. De Long H. & E. Co., supra, at p. 429). But the problem which now faces us is a different one. It is not a problem of statutory construction. It is one of jurisdiction, of private international law (Dicey Conflict of Laws, pp. 38,155). We are to say, not whether the business is such that the corporation may be prevented from being here, but whether its business is such that it is here. If in fact it is here, if it is here, not occasionally or casually, but with a fair measure of permanence and continuity, then, whether its business is interstate or local, it is within the jurisdiction of our courts (International Harvester Co. v. Kentuchy, supra, at p. 587). To hold that a state cannot burden interstate commerce, or pass laws which regulate it, ‘is a long way from holding that the ordinary process of the courts may not reach corporations carrying on business within the state which is wholly of an interstate commerce character ’ (234 U. S. at p. 588). The nature and extent of business contemplated by licensing statutes is one thing. The nature and extent of business requisite to satisfy the rules of private international law may be quite another thing. In saying this we concede the binding force of the decision of the Supreme Court in Riverside & Dan River Cotton Mills v. Menefee (237 U. S. 189) and kindred cases (Bagdon v. Philadelphia & Reading C. & I. Co., 217 N. Y. 432, 438; Pomeroy v. Hocking Valley Ry. Co., 218 N. Y. 530). Unless a foreign corporation is engaged in business within the state, it is not brought within the state by the presence of its agents. But there is no precise test of the nature or extent of the business that must be done. All that is requisite is that enough be done to enable us to say that the corporation is here (St. Louis S. W. Ry. Co. of Texas v. Alexander, 227 U. S. 218; Washington-Virginia Ry. Co. v. Real Estate Trust Co. of Phila., 238 U. S. 185; Int. Harvester Co. v. Ky., supra; Pomeroy v. Hocking Valley Ry. Co., supra). If it is here it may be served (Halsbury, L. C., in, La Compagnie Generate Transatlantique v. Law, L. R. [1899 A. C.] 431).
“We hold, then, that the defendant corporation is engaged in business within the state. We hold further that the jurisdiction does not fail because the cause of action sued upon has no relation in its origin to the business here transacted. That in principle was our ruling in Bagdon v. Phila. & Reading C. & I. Co. (217 N. Y. 432, 438).” (Italics ours.)

The following are the pertinent facts that bear upon the question before us: Dow Jones & Company, Inc., is a New York corporation and a leader in its field of business. Its secretary and treasurer filed an affidavit in support of its motion which states that no officer or shareholder of the corporation resides in Illinois; that the corporation has never qualified to do business in this State and has never consented to be sued in this State; that it is not doing business in Illinois ; that its employees in Illinois are engaged solely in soliciting advertisers and subscribers for a paper published by the corporation in New York, in gathering and transmitting news to the said corporation in said place and in delivering papers published in New York by the corporation to subscribers in Illinois; that W. P. Black is not authorized to enter into contracts on behalf of the corporation except subject to the approval of the president of the corporation in New York City. It appears, however, that the corporation maintains offices in fifteen of the largest cities in the world, including London and Paris; that its electrically operated tickers are in 160 cities of, the United States, including Chicago; that it owns The Wall Street Journal, a financial paper with a wide circulation among financial houses in Chicago and elsewhere ; that the said Journal is published in New York City; that Dow Jones & Company, Inc., has two offices in the Board of Trade building, Chicago, and on the door of each office appear the words, “The Wall Street Journal” and “Dow Jones News Service that in the Chicago telephone directory there appears the following: “Wall St. Journal News Dept. 141 W. Jackson HAB-isn 4100;” that it maintains in Chicago what is known as the “City Desk,” operated by W. P. Black, “an employee of judgment and discretion;” that when important financial news “breaks” in Chicago, Illinois, an employee of said defendant in Chicago “gathers” it and immediately telephones it to Black; that the latter thereupon “exercises judgment and discretion and determines whether the said news is properly authenticated;” that he had a stenographer, employed by said defendant, type the news and it was then sent by teletype owned by said defendant over a private wire to the New York office, where it is put through a transmitter to electrically operated news tickers to defendant’s customers in New York City and also to the Wall Street Journal for publication; that Black also furnishes the news, “gathered” by the instant defendant’s employees in Chicago, to defendant Illinois Telegraph News Company, which transmits it to brokerage houses. The instant defendant concedes that in some instances certain of its employees in Illinois, known as news gatherers, may convey the news to defendant Illinois Telegraph News Company by word of mouth or memoranda. It leases to defendant Financial Telegraph News Company two transmitting plants located in the Board of Trade building, Chicago, one for high speed tickers and one for low speed tickers for grain and produce firms; that the local employees' of the instant defendant solicit news items, subscriptions and advertisements in Chicago for the Wall Street Journal and they personally deliver that paper to its customers in Chicago, including news stands. It leases to the defendant Illinois Telegraph News Company in Chicago 200 of the Vischer high speed tickers and the latter Company leases them to brokerage houses in Chicago. It keeps in reserve in Chicago twenty-five high speed tickers, to be used when the leased tickers need repair, and in such event it furnishes, through its Chicago employees, repair parts and repair service for these machines. It also leases to Illinois Telegraph News Company in Chicago 150 slow tickers for grain and produce houses, and it keeps tickers in reserve for emergencies, when it, through its Chicago employees, furnishes repair services for the said tickers. None of the tickers are manufactured in Chicago, or Illinois.

We hold that defendant Dow Jones & Company, Inc., was doing business within this State in such a sense and in such a degree as to subject that corporation to the jurisdiction of our courts, and that the trial court erred in sustaining the motion of the instant defendant to quash the summons and the return of service of the summons upon the instant defendant. The instant defendant argues that if we hold that the trial court erred in sustaining its motion, nevertheless, we should affirm the trial court’s order in question if we should conclude that the complaint fails to state a cause of action against Dow Jones & Company, Inc., and it contends that the complaint fails to state a cause of action against that Company. It is sufficient to state, in answer to this argument, that the merits of the complaint, so far as Dow Jones & Company, Inc., is concerned, is not before us upon this appeal.

Plaintiff contends that the trial court erred in sustaining the motion of defendant Financial Press Companies of America. That defendant contended in the trial court and contends here that “The Financial Press Companies of America is not a legal entity.” There is no merit in this contention. The instant defendant was created under Chapter 182, Annotated Laws of Mass., Vol. 6, p. 72, and while it is not a corporation nor an association, it is a separate legal entity for the purpose of being sued. (See Peterson v. Hopson, 306 Mass. 597, 612; Griswold v. United States, 36 F. Supp. 714, 719.) Section 6 of the Massachusetts Act provides that such an association or trust may be sued in an action at law and its property shall be subject to attachment and execution in like manner as if it were a corporation and that service of process upon one of the trustees shall be sufficient. The instant defendant further contends that Section 6 authorizes only suits at law and that the instant suit is brought in equity.- This is a far-fetched contention, as the words “action at law” are comprehensive enough to include an action in equity. Peterson v. Hopson, supra, involved a bill in equity. Defendant further contends that “the question, however, is not whether The Financial Press Companies of America could be sued under the laws of Massachusetts, but whether it can be sued under the laws of Illinois,” and it cites Schumann-Heink v. Folson, 328 Ill. 321, in support of its contention that the instant defendant could not be sued in Illinois because, defendant argues, under the ruling in the above case “a trust is no entity at all.” While it is true that the court, in its opinion, used the language just quoted, nevertheless, the question now before us was not raised nor decided in that case. There Schumann-IIeink was induced to invest in a trust that was created under the Massachusetts Act. She did not sue the trust in its trust name, but sued the defendants individually as partners and also as trustees of the trust. The trial court gave her a judgment against the defendant Mackie, individually, for $10,000, and against Mackie and Folsom, as trustees of the trust, for $10,000. She sued out a writ of error because the trial court dismissed her bill as to Folsom individually and as a partner. The Supreme Court affirmed the action of the trial court. The attention of that court was not called to Chapter 186, Section 6, of the Massachusetts Annotated Statutes. In Illinois we have no statute similar to the Massachusetts statute, and the language in question used by the Supreme Court would apply to a trust created in Illinois. Several other cases cited by defendants -in support of this last contention niay be distinguished from the instant proceeding.

The next contention of the instant defendant is a meritorious one. The return of the sheriff shows that the instant defendant was served as a corporation by leaving a copy of the summons with “W. P. Black, an agent of said corporation.” It appears that none of the trustees of the Financial Press Companies of America is a resident of this State; that the said trustees do not have any agents in this State and they do no business here; that Black is not paid by said trustees nor by anyone for or on their behalf, and that he is not authorized to act for them in any respect. The instant defendant contends that as it is not an incorporated company the purported summons served upon “W. P. Black, an agent of said corporation,” is without any force and effect; that the only provision in the Massachusetts statutes as to service provides that “service of process upon one of the trustees shall.be sufficient. ’ ’ Plaintiff argues that the service was good because the instant defendant owned all of the stock of defendant Illinois Telegraph News Company and received all of its net income; that the Telegraph Company “is the alter ego” of the Financial Press Companies of America and that “for the purposes of service of summons they are the same corporation,” and therefore service upon the Illinois Telegraph News Company was good service on the Financial Press Companies of America. We cannot agree with this argument of plaintiff. Cannon Mfg. Co. v. Cudahy Paching Co., 267 U. S. 333, is an authority against it. We think that the Massachusetts Act in providing that the association or trust created under the Act might be sued in an action at law also provided the method in which service of process might be had. We have reached the conclusion that the instant contention of The Financial Press Companies of America is sound', and that the action of the trial court in quashing the summons and the return of service as to that defendant must be affirmed. While it is questionable if plaintiff can obtain good service upon the instant defendant in Illinois, it is not necessary for us to pass upon that question.

Plaintiff contends that the trial court erred in sustaining the motion of Illinois Telegraph News Company to strike the complaint and dismiss the suit as to that defendant for want of equity. After a patient consideration of the strained argument of plaintiff in support of this contention we are satisfied’ that the action of the trial court in sustaining the motion of the Illinois Telegraph News Company was fully justified.

The order of the Superior court of Cook county of April 15, 1943, quashing the summons against Dow Jones & Company, Inc., is reversed and the cause is remanded as to that defendant with directions to the trial court to overrule the motion of said defendant to quash the summons and to dismiss the suit against it, and for further proceedings not inconsistent with this opinion. The further order of the-said court, of the same date, quashing the summons and purported return of service upon defendant The Financial Press Companies of America is sustained. The further order of the said court, of the same date, dismissing the complaint as to the defendant Illinois Telegraph News Company, an Illinois corporation, for want of equity is sustained.

Order dated April 15, 1943, as to defendant Dow Jones & Company, Inc., reversed and cause remanded with directions. Order dated April 15, 1943, as to defendant The Financial Press Companies of America, sustained. Order dated April 15, 1943, as to defendant Illinois Telegraph News Company, an Illinois corporation, sustained.

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


text:
    Robert H. Molitor, Appellant, v. Chicago Title and Trust Company and Justin M. Dall, Appellees.
    Gen. No. 42,960.

      Heard in the second division of this court for the first district at the December term, 1943.
    Opinion filed February 13, 1945.
    Released for publication March 5, 1945.
    Robert H. Molitor, pro se and Royal W. Irwin, of Chicago, for appellant.
    Gardner, Carton & Douglas, of Chicago, for appellees; Erwin W. Roemer, James A. Velde, Harold L. Reeve and Carl F. Faust, all of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Robert H. Molitor, plaintiff, sued Chicago Title and Trust Company, a corporation, for breach of an employment contract, and also sued Justin M.- Dali for damages resulting from the breach of the said contract because of his want of authority, if the evidence should show a want of authority. A jury returned a verdict finding the issues in favor of plaintiff and against Chicago Title and Trust Company and assessing plaintiff’s damages at $15,480, and also a verdict finding the issues in favor of defendant Dali. The trial court reserved rulings on motions of defendants for directed verdicts and after verdicts sustained a motion of Chicago Title and Trust Company for judgment in its favor notwithstanding the verdict against it. Plaintiff appeals from that judgment. Judgment was entered upon the verdict in favor of defendant Dali after plaintiff’s motion for a new trial had been denied. Plaintiff has not appealed from that judgment. Some days after the entry of the judgment against Chicago Title and Trust Company it entered a motion for a new trial and the trial court entered an order granting the motion, but providing that “this ruling shall not become effective unless and until the order granting the motion for judgment notwithstanding the verdict shall hereafter be reversed, vacated or set aside in the manner provided by law.” Plaintiff also appeals from that judgment.

Plaintiff contends that the trial court should not have entertained the motion of defendant Chicago Title and Trust Company for judgment notwithstanding the verdict because no points in writing were filed at any time specifying the grounds upon which such motion was based, as provided by Section 68 of the Civil Practice Act, but we do not deem it necessary to consider this somewhat technical contention in view of the conclusion we have reached as to plaintiff’s next contention.

Plaintiff strenuously contends that the trial court erred in sustaining the Chicago Title and Trust Company’s motion for judgment" notwithstanding the verdict. Neither in the written motion filed by Chicago Title and Trust Company for a directed verdict at the close of plaintiff’s case nor at the close of all the evidence was any attempt made at “specifying the grounds of such motion,” as provided by Section 68 of the Civil Practice Act (ch. 110, par. 192, Ill. Rev. Stat. 1943 [Jones Ill. Stats. Ann. 104.068]). That section also provides that “if either party may wish to move for ... a judgment notwithstanding the verdict, he shall, before final judgment be entered, . . . file the points in writing, particularly specifying the grounds of such motion . . . .” The motion for judgment notwithstanding the verdict merely recites that the said defendant “moves the court that judgment be entered for said defendant, Chicago Title & Trust Company, notwithstanding the verdict of the jury.”

The complaint alleges that Chicago Title and Trust Company, on or about March 20, 1936, “desiring to continue the service of plaintiff permanently, promised and agreed that in consideration of the plaintiff giving up his residence in the State of New York, and giving up and foregoing all his other engagements and professional connections as aforesaid by moving his family to Cook County, State of Illinois, and thereafter devoting all his time exclusively to the service of the Company, that it would give plaintiff steady, continuous and permanent employment as an examiner of titles; that is to say, for and during the period of his natural life, or so long as said Company required the services of an examiner of titles and plaintiff was willing and able to do such work. ’ ’ Said defendant, in its answer, denies the aforesaid allegations. We may assume from the briefs filed by both parties that the trial court based his ruling upon the assumption that there was no evidence offered by plaintiff that tended to prove an enforceable agreement that plaintiff was to have permanent femployment. The following are the settled principles of law that govern a trial court in passing upon a motion for judgment non obstante veredicto:

Rule 22 of the Supreme court provides: “The power of the Court to enter judgment notwithstanding the verdict may be exercised in all cases where, under the evidence in the case, it would have been the duty of the Court to direct a verdict without submitting the case to the jury. ’ ’

“ ‘A motion to instruct the jury to find for the defendant is in the nature of a demurrer to the evidence, and the rule is that the evidence so demurred to, in its aspect most favorable to the plaintiff, together with all reasonable inferences arising therefrom, must be taken most strongly in favor of the plaintiff. The evidence is not weighed, and all contradictory evidence or explanatory circumstances must be rejected. The question presented on such motion is whether there is any evidence fairly tending to prove the plaintiff’s declaration. In reviewing the action of the court of which complaint is made we do not weigh the evidence, — we can look only at that which is favorable to appellant. Yess v. Yess, 255 Ill. 414; McCune v. Reynolds, 288 id. 188; Lloyd v. Rush, 273 id. 489.’ (Hunter v. Troup, 315 Ill. 293, 296, 297.)” (Mahan v. Richardson, 284 Ill. App. 493, 495. See, also, Wolever v. Curtiss Candy Co., 293 Ill. App. 586, 597; Cooper v. Safeway Lines, Inc., 304 Ill. App. 302, 312, 313; McCarthy v. Rorrison, 283 Ill. App. 129; Rose v. City of Chicago, 317 Ill. App. 1, 12.)

Observing these rules we find the following evidence: The Chicago Title and Trust Company is engaged, inter alia, in the business of insuring titles to and interests in real estate in Cook county and elsewhere. ■It employs a large number of men known as title examiners, who are especially trained and experienced in the law of real property and the validity of real estate titles. It depends upon the ability and integrity of these title examiners to discover defects, if there be any, in real estate titles. In the selection of title examiners it exercises great caution, and applicants for such position go through a long probationary period before they are given “continuous employment.” In 1920 plaintiff applied for a position as title examiner and was employed on probation. He had theretofore been engaged in the practice of law in South Dakota. After a number of years of service as a probationer, he was made a regular examiner at a. salary of $85 per week. In August, 1927, he quit the services of the defendant company and moved, with his family, to New York to take employment in the office of a former client, the new position paying him twice the salary he was ■getting 'as a title examiner. Because of the economic depression, he lost the New York position on February 1, 1933, and he then started to practice his profession in New York — having been admitted to the bar in New York — and by June, 1934, he was .commencing to build up a paying practice. About that time one of the departments of defendant company, that was managed by Mr. Dali, was swamped with thousands of HOLC orders for title insurance, and speedy service was demanded. Mr. Dali, in letters and telegrams to plaintiff, asked him to re-enter the employ of defendant company. Dali stated that the company was very busy with rush orders from the HOLC but that there was no profit in the business and that the work would probably last about six months. Plaintiff told Mr. Dali that since 3933 conditions had changed for the better for him and his family and that they now had an income ; that from time to time he was getting law business which - paid substantial fees; that his wife had a music class in New York from which she derived a substantial income every month and that he might have trouble inducing her to give up her work unless plaintiff would have better prospects in Chicago than in New York. Further correspondence followed, and plaintiff finally accepted the offer of employment with the understanding that when the HOLC work gave out that Mr. Dali might be free to dispense with his services. In view of the temporary character of the agreement plaintiff decided not to move his family to Chicago. He came to Chicago on July 23, 1934, and told Mr. Dali, in a conference, that he desired to preserve his business connections in New York and to have his wife retain her music classes there, and that it would be necessary for him to be absent from his work with the defendant company when matters came up in New York that required his presence there. Mr. Dali agreed to this arrangement. Immediately following this conference plaintiff went to work for defendant company and for three or four months thereafter the -title examiners were obliged to work four hours overtime every day, all day Saturdays, and some Sundays. Plaintiff spent five days in New York in the following September to attend to a legal matter in which he had been appointed referee. He was also absent from his work during the month of June, 1935, when he was conducting legal business for clients in New York and Philadelphia, and was absent again, upon like work, between December 14, 1935, and February 17, 1936. All of the absences were with the knowledge and consent of Mr. Dali. The HOLC work was tapering off in 1935, and it ended on June 12,1936. About this time Mr. Dali was preparing for an anticipated improvement in the regular business of defendant company and he became dissatisfied with the arrangement that allowed plaintiff to be absent from his work on trips to New York, and in a conference with plaintiff it was agreed that the trips to New York caused undesirable breaks in plaintiff’s work and a new agreement as to plaintiff’s employment was made. The following is plaintiff’s evidence as to the agreement: Dali stated to him that the HOLC work would soon be played out but that they were looking for a big boom in regular real estate business, and he asked plaintiff to abandon his New York connections and move his family to Chicago so that he could give the company his continuous service from then on. Plaintiff replied that he would not give up his New York connections so long as there was any uncertainty about his employment in Chicago being continuous. Mr. Dali stated that two of the examiners had died, that there was now a place for plaintiff and that he could depend on the position being permanent. Plaintiff asked him what he meant by that, to which Dali replied, “You can consider yourself employed from now on — the custom here is to retain examiners as long as we can. We have men that have been here all their lives, and there is no reason why you couldn’t have a job here the rest of your life.” Plaintiff replied that if he could rely on that promise he would buy a house in Chicago and move his family here, that his wife had a big music class in New York and that she would refuse to move unless he had a permanent position in Chicago, to which Mr. Dali replied, “You can rely on it being permanent.” Plaintiff then accepted the position and told Mr. Dali that he would abandon his New York connections, buy a house here, and move his family to Chicago. His salary was fixed at $70 per week. Plaintiff thereupon continued in his work with defendant company and began preparations for carrying out his part of the agreement. He abandoned all his business in New York and his wife abandoned her music classes. He bought a home at 7219 Vernon avenue and the family moved to Chicago. The defendant company loaned plaintiff $200 to enable him to move. Plaintiff thereafter continued in the employ of defendant company under the arrangements made with Mr. Dali until March 15,1938, when he was discharged by defendant company upon the ground that business had fallen off to such an extent that the company could not afford to hold plaintiff any longer. There was evidence tending to show that defendant company about two years prior to plaintiff’s discharge employed thirteen new title examiners whose salaries averaged less than forty dollars per week, and that only one of the thirteen was discharged at the time of plaintiff’s discharge.

In passing upon plaintiff’s instant contention we must assume that defendant company promised plaintiff “permanent employment” and that plaintiff accepted employment because of that promise, and the question is, What did the parties intend by “permanent employment?” Upon the oral argument counsel for the defendant contended that even under plaintiff’s testimony as to the alleged agreement defendant had the right to discharge him at will. This contention is without merit and the cases cited in support of it, Orr v. Ward, 73 Ill. 318; Gunther v. C. B. & Q. Ry. Co., 165 Ill. App. 55, and Fuchs v. Weibert, 233 Ill. App. 536, have no application to the facts that must be taken as true in determining the instant contention of plaintiff.

The leading case that bears upon the facts before us is Carnig v. Carr, 167 Mass. 544. We find that that case has been often cited, and always with approval. To quote from the opinion (pp. 546, 547):

“There was evidence tending to show that the defendant agreed that, if the plaintiff would give up his business, which was that of an enameller, and enter his service in the same occupation, he would furnish him with permanent employment at stipulated wages ; that the plaintiff gave up his business, and entered the defendant’s employment and continued therein several months, receiving wages at the rate agreed, when the defendant suspended his employment, and finally ceased altogether to employ him, though he had work of the kind which the plaintiff was to do. í i
“To ascertain what the parties intended by ‘permanent employment,’ it is necessary to consider the circumstances surrounding the making of the contract, its subject, the situation and relation of the parties, and the sense in which, taking these things into account, the words would be commonly understood. For it fairly may be assumed that the parties used and understood them in that sense. Schuylkill Navigation Co. v. Moore, 2 Whart. 477, 491. Looking at the matter in that way, we think that the words would be commonly understood as meaning that, so long as the defendant was engaged in enamelling and had work which the plaintiff could do and desired to do, and so long as the plaintiff was able to do his work satisfactorily, the defendant would employ him, and that in that sense the employment would be permanent; that is, the plaintiff would be under no necessity of looking for work elsewhere, but could rely on the arrangement thus made. So construed, the contract would be capable of enforcement, and there would be no want of mutuality because the plaintiff might not have bound himself to continue in the defendant’s employment. The construction contended for by the defendant, namely, that it was for him to say whether he needed the plaintiff’s services or not, would put the plaintiff entirely at the defendant’s mercy, and, in view of the fact that the plaintiff was to give up his business to enter the defendant’s employment, would be such an agreement as he could not reasonably have been expected to make. See Russell v. Allerton, 108 N. Y. 288. On the other hand, it would be equally unreasonable to hold that the defendant could have intended to bind himself to employ the plaintiff so long as they both lived, regardless of his continuing in the enamelling business, or of the plaintiff rendering satisfactory service. The plaintiff does not indeed contend for such a construction. If it is difficult, as the defendant insists that it is, to lay down a rule for estimating the damages arising from the breach of such a contract as we have construed this to be, the difficulty is no greater than exists in many other cases, and does not present an insuperable objection to recovery.”

In Riefkin v. E. I. Du Pont De Nemours & Co., 290 Fed. 286, the plaintiff was induced to resign from a position with the United States government on a promise of permanent employment. After about two and one-half years of service he was discharged without cause although he had rendered satisfactory service to the defendant. In its opinion the Court of Appeals of the District of Columbia stated (p. 289):

1 ‘ The circumstances surrounding the making of this contract largely control the interpretation to be given the words ‘permanent employment’ as used therein, for it must be assumed that the parties, knowing those circumstances, contracted with reference to them. The plaintiff held a position with the United States government, and the defendant agreed that, if he would resign from that position and take charge of the purchase of coal for the defendant, he would be given ‘permanent employment in that capacity so long as he rendered satisfactory services and was loyal to its interests.’ Relying upon this agreement, plaintiff did resign and perform his part of the contract. May it be said that it was within the contemplation of either party that ‘permanent employment,’ as used in the contract, meant that the plaintiff, the day following-his resignation, from his position with the government and the assumption of his new duties, could have been summarily discharged without any liability on the part of the defendant ? Such a result could not have been contemplated by either party. The more reasonable view is that the.parties contemplated that, so long as the defendant continued in a business requiring the purchase of coal and the plaintiff performed loyal and satisfactory service, he would continue to be employed in the capacity specified in the contract.” The first case cited in support of the conclusion of the court was Carnig v. Carr. The trial court had held as a matter of law that the plaintiff could not recover and awarded judgment upon the special verdict for the defendant. The Court of Appeals reversed that judgment and remanded the cause with directions to enter judgment for the plaintiff in the amount found by the jury. See, also, Roxana Petroleum Co. v. Rice, 235 P. 502, 507; Millsap v. National Funding Corporation, 135 P. 2d 407, 409. In Littell v. Evening Star Newspaper Co., 120 F. 2d 36, the court approved the rule announced in Carnig v, Carr and other cases, but held that the evidence in the case showed that the minds of the parties never met upon a permanent employment agreement. We do not deem it necessary to refer to cases like Eggers v. Armour & Co. of Delaware, 129 F. 2d 729, wherein it appears that the plaintiff suffered injuries in the course of his employment with the defendant and he claimed that the defendant had him sign a written contract that insured him a lifetime job, although we note that the court in the Eggers case stated (p. 731): “The rule is that a contract for lifetime employment will be given effect, according to its terms, if the intention of the parties to make such an agreement is clear, even though the only consideration for it, so far as the employer is concerned, is the promise of the employee to render the service called for by the contract.”

But the defendant contends (a): “There was no evidence that Dali had authority to enter into the alleged contract to employ plaintiff for life or that defendant company ratified the alleged contract;” and (b) “There was no evidence that defendant company acted in bad faith in discharging plaintiff.” All of these contentions involve disputed questions of fact and therefore they cannot be considered in determining the instant contention of plaintiff. After a careful consideration of the question before us we have reached the conclusion that the trial court erred in entering judgment for the defendant company notwithstanding the verdict for plaintiff.

Plaintiff also contends that the trial court erred in entering the order granting the defendant a new trial. The following ground, inter alia, was urged in the motion for a new trial: ‘ ‘ The'verdict of the jury as to defendant Chicago Title & Trust Company is contrary to the manifest weight of the evidence. ’ ’ As this case may be tried again we refrain from analyzing and commenting upon the evidence that bears upon the instant contention. Suffice it to say that the defendants introduced evidence in support of their claim that Mr. Dali did not promise plaintiff permanent employment. The Appellate courts of this State, upon an appeal from an order of the trial court granting a new trial, have consistently held that they would not interfere with an order of the trial court granting a new trial unless the record showed a clear abuse of discretion .by the trial court in granting the motion. After a careful consideration of all of the evidence, we are satisfied that we would not be justified in holding that the trial court was guilty of a clear abuse of discretion. We have considered the further contention of plaintiff that the trial court should not have entertained the motion for a new trial and find the contention without substantial merit.

The judgment order of the Superior court of Cook county entered May 13, 1943, entering judgment in favor of the defendant Chicago Title and Trust.Company non obstante veredicto is reversed. The judgment order of the Superior court of Cook county entered June 3,1943, setting aside the verdict of the jury and granting the defendant Chicago Title and Trust Company a new trial is affirmed. The cause is remanded for a new trial.

Judgment order entered May 13,1943, entering judgment in favor of the defendant Chicago Title and Trust Company non obstante veredicto is reversed. Judg ment order entered J-une 3,1943, setting aside the verdict of the jury and granting the defendant Chicago Title and Trust Company a new triad is affirmed. The cause is remanded for a neto trial.

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