author: MR. JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Evan Minnie Mwathery and Frances Gaines, Defendants-Appellants.
    Gen. Nos. 51,951, 51,956. (Consolidated.)
    First District, Third Division.
    December 5, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John M. Goldberg, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SULLIVAN

delivered the opinion of the court.

Frances Gaines and Evan Mwathery were indicted for the crime of murder. The defendants pleaded not guilty and, after a jury trial, both defendants were found guilty of murder. Each defendant was sentenced to the penitentiary for a term of 50 to 75 years.

The defendants contend on appeal that improper comments by the State’s Attorney deprived the defendants of a fair trial; the State’s Attorney committed prejudicial error when he made reference to a statement he had agreed not to introduce; and reversible error occurred when the prosecutor turned over grand jury testimony and police reports in front of the jury.

The pertinent facts are these: On February 14, 1966, at 6:00 p. m., Robert Lee Perry was in his apartment located at 6107 South Laflin Street, Chicago, Illinois, when he heard Cleo Gaines calling for help. Perry went out of his apartment and saw Cleo Gaines lying across his apartment door. Gaines died shortly after Perry arrived. Perry then called the police. After the police arrived, Perry received a call from Frances Gaines, one of the defendants, and when she learned that her husband was dead, she asked if someone would come and get her. A doctor testified that Cleo Gaines died as a result of six stab wounds. Earl Dixon testified that in January of 1966, defendant Gaines was living with the defendant Mwathery, and Mwathery had told him that he and Frances Gaines intended to get married and go to Michigan to live. Walter Jefferson, a witness for the State, testified that he was indicted with the two defendants in this case. About three weeks before the death of Cleo Gaines, Jefferson had a conversation with Frances Gaines. She told him she was broke and that “her husband had some insurance money she would like to get hold of.” About three weeks later, Frances Gaines asked him if he would like to make $1,000 by accompanying her lover, defendant Mwathery, when he went to kill her husband. Jefferson agreed and accompanied Mwathery to Cleo Gaines’ apartment where Mwathery stabbed Gaines several times.

The defendants first contend that improper comments by the State’s Attorney deprived the defendants of a fair trial. The defendant Mwathery was represented by an Assistant Public Defender and the defendant Gaines was represented by private counsel in the trial court. During the testimony of the State’s accomplice witness Walter Jefferson, the State’s Attorney on redirect examination asked the following questions, which were answered in the following manner:

“Q. Now you had a conversation with Mr. Wexler (Assistant Public Defender) on June 8th, is that right ?
“A. Yes I think so.
“Q. And the conversation to which he referred in his cross-examination, do you recall that?
“A. Yes, sir.
“Q. Now as a matter of fact, at that time Mr. Wexler told you to keep your mouth shut.
“Mr. Wexler: Objection Your Honor. Objection.
“The Court: Objection sustained.”

Defense counsel then moved for a mistrial, which the court denied. The defendants argue that the question put to the witness by the State’s Attorney was highly prejudicial in that it gave the jury the impression that the Assistant Public Defender was attempting to obstruct justice by hiding evidence. The ruling by the trial court was error but not of such magnitude as to constitute reversible error.

During the closing argument to the jury the State’s Attorney made the following remarks:

“Now, Mr. Wexler told you ladies and gentlemen that he is an Assistant Public Defender and that as an Assistant Public Defender he gets paid a salary to do a job in this court room and personally what motive would he have for fabricating anything in this case and since Mr. Wexler went into it I say this to you ladies and gentlemen, Mr. Goldstein is not a Public Defender and Mr. Goldstein represents an individual before this court and, as a matter of fact, it is not unusual for a Public Defender to reasonably expect to share in the proceeds . . . .”

The defense counsel objected before the sentence was finished and the trial judge together with the State’s Attorney, the Assistant Public Defender and Mr. Gold-stein, who represented the defendant Gaines, retired to the judge’s chambers. The attorneys for the defendants then made a motion for a mistrial, which was denied. The court advised the jury that the objection to the State’s Attorney’s remark had been sustained and also stated that there was no evidence in the record to warrant such remarks and the jury was instructed to disregard them.

There was nothing in the testimony that would have warranted the State’s Attorney to make the charge that it is not unusual for a Public Defender to reasonably expect to share in the proceeds of anything other than his salary as compensation for his services in representing an indigent defendant. Evidence had been introduced in this case regarding insurance money. The jury could well have understood from the statements of the State’s Attorney that the Public Defender was expecting to share in the proceeds of the insurance if his client was found not guilty, and we believe that that statement to the jury, which had no evidentiary basis, was highly prejudicial to both defendants in this case. In People v. Glickman, 27 Ill App2d 379, 385, 169 NE2d 815, the Court said:

“The general principle which emerges from the cases is that counsel may not ‘do or say anything in argument the only effect of which will be to inflame the passion or arouse the prejudice of the jury against the defendant without throwing any light on the question for decision.’ People v. Dukes, 12 Ill2d 334, 342-3, 146 NE2d 14.”

The Supreme Court has held that statements of counsel in argument based upon facts and circumstances proved, and upon legitimate inferences therefrom, do not exceed the bounds of proper debate and are not to be discountenanced by the courts. (People v. Miller, 13 Ill2d 84, 148 NE2d 455.) In People v. Polenik, 407 Ill 337, 95 NE2d 414, the court said:

“In his argument to the jury the State’s Attorney made repeated references to criminal lawyers in a manner calculated to arouse general prejudices. He announced to the jury ‘Are you going to allow this defendant to go back to the county jail and tell the other inmates he had a lawyer that hoodwinked the jury into saving his life? ... We know the pattern of these defenses; we know how they follow. These defendants don’t think up these defenses. Defense lawyers, who practice criminal law day in and day out, they are the ones that concoct these defenses, and we know what they are going to be the first day we arrest a man. ... We have to go to great lengths to protect the State, to protect the people against the wiles and cunning of the defense lawyers in the Criminal Court. ... If he can beat the chair in this case, all the boys in the county jail will all say he is a great lawyer, and will all hire him, so he will be very busy, that is all.’ Such argument cannot possibly aid the jury in weighing or evaluating the evidence, but tends only to arouse its antagonism against defendant and his attorney.”

The statement made by the State’s Attorney could not possibly aid the jury in weighing or evaluating the evidence and could have tended only to arouse antagonism against the defendants. Notwithstanding the fact that the judge sustained the objection to the remarks by the State’s Attorney and instructed the jury to disregard them, the defendants suffered irreparable harm.

A defendant guilty or innocent is entitled to a fair, orderly and impartial trial in accordance with the law of the land. (People v. Galloway, 7 Ill2d 527, 131 NE2d 474.) The law requires that persons accused of crime be given a fair trial regardless of their guilt or innocence. People v. Savage, 358 Ill 518, 193 NE 470.

The State attempts to justify these remarks and contends that remarks made by the Assistant Public Defender during his argument to the jury provoked the statement made by the State’s Attorney. The Assistant Public Defender told the jury that he was employed as an Assistant Public Defender by Cook County and no matter what the verdict in the instant case was, that he would be there defending other persons charged with crime after this case was completed. He further asked the jury whether “they would think that for his salary he was going to enter into any kind of a deal to get people off.” There had been constant bickering between the State’s Attorney and defense counsel during this entire trial and the State’s Attorney had accused the Assistant Public Defender of trickery, which was countered by charges of the Assistant Public Defender against the State’s Attorney to the same effect. The argument to the jury by the Assistant Public Defender, which the State contends provoked the remarks complained of by the defendants, does not give justification to the State’s Attorney to make charges not based upon any evidence in the record against the Assistant Public Defender, and which could be calculated only to prejudice the rights of the defendants. Had the statements by the State’s Attorney constituted i/iferences based upon competent evidence in the record, they would not have transcended the limits of proper argument. People v. Smith, 24 Ill2d 198, 181 NE2d 77.

The defendant, prior to trial, made a motion to suppress a statement of Frances Gaines and a motion for a severance. At the hearing the State’s Attorney advised the court and both defense counsel that the statement of Frances Gaines would not be used for any purpose whatsoever. Frances Gaines thereupon withdrew her motion to suppress and the motion for severance was denied. During the redirect examination of the State’s accomplice witness, the State’s Attorney asked:

“Q. Will you tell this court and jury the reason that you gave a confession to the police?
“A. After I had been in the police station about half an hour or forty-five minutes they showed me a statement that was already signed by Frances Gaines.”

Objection was made by both defense counsel and the motions for mistrial were denied.

In closing argument, the State’s Attorney referred to the statement of Frances Gaines when he said:

“Why did Walter Jefferson testify ? He stated from the stand because the statement had been given by Frances Gaines.”

It is argued that the jury was made aware that the defendant Frances Gaines had given a signed statement to the police. A motion to suppress had been withdrawn on the promise of the State’s Attorney that the statement would not be introduced for any purpose whatsoever. In People v. Dukes, 12 Ill2d 334, 146 NE2d 14, in commenting on an inference made by the State’s Attorney to the defendant’s crime record, the Supreme Court said, at page 342:

“In a sense it was more damaging than proof of other specific criminal offenses because it left the jury to speculate upon the insinuation that the defendant had a prior record without stating what it was.”

The State argues that the reference made to the statement by the witness was not a breach of the prosecutor’s agreement because the prosecutor made no effort to put the contents of the statement before the jury. The State also argues that the reference to the statement was not prejudicial. The State further argues that since the existence of the statement was in the record, the passing reference to the statement by the prosecutor is well within the proper scope of closing argument. The defendants were prejudiced by the question of the prosecutor and the answer of the witness, as well as by the reference made to the statement in the State’s argument to the jury. The jury no doubt believed that the statement contained a confession by one of the defendants and might have even concluded that both defendants were implicated in the statement given by the defendant Gaines. The State cites the case of People v. Allen, 73 Ill App2d 256, 219 NE2d 653, in support of its argument that since the existence of the statement was in the record, the passing reference to it by the prosecutor was well within the proper scope of closing argument. However, this constituted a violation of the agreement made by the prosecutor at the time the motion to suppress the statement was about to be heard by the court, and the statement to the jury was not justified under those cases which hold that the State may comment on facts in evidence and may draw reasonable inferences from those facts. This error alone might not have constituted reversible error, but together with the charges made against the Assistant Public Defender in argument to the jury is sufficient to require reversal and remandment.

Since we conclude that this case must be reversed and remanded because of error committed by the prosecutor as a result of which both defendants were prejudiced in the eyes of the jury, we think it unnecessary to discuss the final point raised by the defendants as it will not likely occur on retrial.

Reversed and remanded.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE DEMPSEY

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles Jackson, Defendant-Appellant.
    Gen. No. 52,252.
    First District, Third Division.
    December 5, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

In a non jury trial the defendant, Charles Jackson, was found guilty of the unlawful sale of narcotic drugs and was sentenced to the penitentiary for a term of ten to twelve years. He contends that the State failed to prove him guilty beyond a reasonable doubt.

A police informer named Eugene Wheeler testified that about 1:00 a. m., November 8, 1965, he went to a police station with narcotics information. Policemen stripped and searched him, gave him $10 in prerecorded bills and took him to the northeast corner of Prairie Avenue and Garfield Boulevard, Chicago. He walked south on Prairie, crossed Garfield, entered a tavern at 227 E. Garfield Boulevard and arranged to buy some heroin from the defendant. The two came outside, walked east on the south side of Garfield Boulevard, crossed Prairie Avenue and, as they neared the elevated station about 819 E. Garfield, the defendant handed him a small tinfoil package and received the $10. The two then separated and Wheeler signaled the police that the purchase had been made.

The police officer who testified at the trial said that this took place while he was sitting in the police car which was parked north of Garfield Boulevard on Prairie Avenue. He described Garfield as a boulevard having two wide thoroughfares separated by a still wider parkway. He said that both the west and eastbound thoroughfares were the width of five or more automobiles and that the parkway in between was as wide as both of them. He further testified that he used binoculars to keep Wheeler under surveillance and that he saw him walk toward the elevated station with another man. It was two o’clock in the morning and, although the light from the street lamps was fairly good, he could not see well enough to identify the man accompanying Wheeler. When Wheeler signaled the completion of the transaction, the officer left the car, ran across the westbound thoroughfare and was partway across the parkway when a bus, on the eastbound thoroughfare, blocked his view. When the bus passed the man had disappeared. After a few minutes’ search the officer gave up and returned to the car. There, Wheeler gave him a tinfoil packet and said that he bought it from a man called “Big Jack.” The package contained heroin. A warrant for the arrest of John Doe alias “Big Man” was issued and three months later, on February 11, 1966, the defendant was arrested and charged with the crime.

Wheeler, who had received a two to four-year sentence in 1958 for the unlawful possession of narcotics, admitted a previous addiction to narcotics but denied having used them since 1961. During cross-examination he was asked to roll up his sleeves and was questioned about scars and little dark marks on the inside of his elbows. He explained that the scars were from the use of narcotics between 1947 and 1958 but that the marks came from detergents which splashed on him in a laundry where he had worked for a month and a half.

In the three years prior to the trial he had been employed for brief periods in three or four jobs. He claimed that he also worked for himself as a salesman, buying items such as lingerie, scarves and jewelry on Maxwell Street and reselling them to patrons on the street, but he never filed an income tax return on any income from this endeavor. In addition, he said he received compensation from individual police officers for acting as an informant, but it amounted to only a few dollars.

Wheeler testified that he knew the defendant before the alleged crime because they served time together in the House of Correction. He further said he knew the defendant’s full name; however, the officer testified that Wheeler told him he only knew the defendant’s nickname. The officer also revealed an interesting fact which may have thrown some light on Wheeler’s use of narcotics. He was asked on cross-examination if Wheeler ever told him that he had purchased narcotics from the defendant before. He replied that Wheeler had, but that the purchase was made indirectly—Wheeler was present when someone else bought narcotics for him.

The fact that a witness is a narcotics addict and a police informer has a definite bearing upon his credibility as a witness and his testimony must be closely scrutinized. People v. Perkins, 26 Ill2d 230, 186 NE2d 330 (1962); People v. Boyd, 17 Ill2d 321, 161 NE2d 311 (1959); People v. Hamby, 6 Ill2d 559, 129 NE2d 746 (1955). But these factors do not necessarily render the testimony unworthy of belief. People v. Bazemore, 25 Ill 2d 74, 182 NE2d 649 (1962); People v. Drumwright, 48 Ill App2d 392, 199 NE2d 282 (1964). The quality and quantity of the evidence supporting his testimony also affects his credibility. People v. Martin, 63 Ill App2d 492, 211 NE2d 753 (1965). The test of the sufficiency of the addict-informer’s testimony is whether, under all the surrounding circumstances, his testimony is believable. People v. Norman, 28 Ill2d 77, 190 NE2d 819 (1963); People v. Martin, supra; People v. Drumwright, supra.

Although Wheeler denied an addiction to drugs for three years prior to the sale, his denial is open to question. The marks and scars on his arms and the fact that someone bought narcotics for him arouse suspicion. Other matters in the record also cast doubt on his credibility. He received favors from the police; he held no regular job and if his story about being a salesman is true his honesty is questioned by his failure to report the income for tax purposes; he did not give the full name of the man from whom he bought the heroin to the police and told them he did not know it, although he said at the trial that he knew it all the time.

Further, Wheeler’s accusation lacked corroboration. A policeman was at the scene but could not identify the defendant as the person with Wheeler. The defendant was not arrested at the time of the sale or shortly thereafter. He was not found with the prerecorded money in his possession. Three months elapsed before he was arrested. There was no evidence that he was in the tavern or the area on the morning when the sale took place.

Wheeler could have named anybody as the person from whom he purchased the narcotics—at least anybody of a similar size and form as the man seen by the officer. His testimony without corroborative evidence is insufficient to prove the defendant’s guilt beyond a reasonable doubt.

The judgment is reversed.

Reversed.

SCHWARTZ and SULLIVAN, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Arden Wells, Defendant-Appellant.
    Gen. Nos. 52,677, 52,678.
    First District, Third Division.
    December 5, 1968.

      Ronald A. Parizek and Michael F. Sheehan, Jr., of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John M. Goldberg, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

In a trial without a jury the defendant was found guilty on two charges—(1) driving a vehicle while under the influence of intoxicating liquor, and (2) failing to remain at the scene of an automobile accident involving property damage. Because it was his second conviction within a five-year period on the charge of driving while under the influence of intoxicating liquor, defendant was sentenced to serve 90 days in the House of Correction and fined $500. Ill Rev Stats, c 95%, § 144(c) (1965). For failing to remain at the scene of an accident he was fined $15 plus $5 costs. Defendant has filed separate appeals from each conviction. With respect to (1), he contends that he was not proven guilty beyond a reasonable doubt. With respect to (2), he has submitted no argument. The facts follow.

On February 26, 1967, Officer William McGlynn was notified of an automobile accident which had occurred at 5:20 p. m. at North and Cicero Avenues in Chicago. When he arrived at that location, he was informed by witnesses that defendant had left the scene. The officer traced defendant to his home and at 6:45 p. m. he entered the defendant’s home, where he found him sitting at a table with an open bottle and a glass of whiskey in front of him. He arrested the defendant and took him to the police station, arriving there at about 7:30 p. m. The police officer testified that in his opinion the defendant was unfit to drive at the time he arrived at the station. Defendant was given a breathalizer test which resulted in a reading of .20. At the time of the accident the Uniform Act Regulating Traffic provided that a reading of .15 or above yielded a presumption that the defendant was under the influence of intoxicating liquor. Ill Rev Stats, c 951/a, §144 (b)(3) (1965).

Defendant admits that he was in an accident and that he was driving the vehicle involved. He testified that he left the scene of the accident and walked six blocks to his home, that he had nothing to drink prior to the accident, that he was frightened and when he reached home, drank about five or six water glasses of liquor. Ralph Benoit, a friend, testified in behalf of the defendant that he had been with him from 7:00 a. m. until 3:00 p. m. on the day of the accident and that during that time defendant had nothing to drink.

As to charge (1), defendant contends that the evidence does not prove beyond a reasonable doubt that he was intoxicated at the time of the accident, and the State in its brief admits there is no direct evidence to support that charge. It is contended however that there was sufficient circumstantial evidence to sustain the conviction.

The burden was on the S+ate to prove beyond a reasonable doubt that defendant drove the automobile at the time and place in question while he was under the influence of intoxicating liquor. People v. Miller, 23 Ill App2d 352, 163 NE2d 206. Police Officer McGlynn’s testimony and the results of the breathalizer test administered at the police station indicate that defendant was intoxicated when he arrived at the station, but that was more than two hours after the accident took place. There is no evidence which in any way contradicts defendant’s testimony that he did not have anything to drink until after the accident. His home is only six blocks from the scene of the accident and he had ample time between 5:20 and 6:45 p. m. to have walked home and consumed enough whiskey to be intoxicated by 7:30 p. m. Although defendant’s testimony is unlikely, it is not contradicted by the evidence and it raises a reasonable doubt that defendant was intoxicated at the time he had the accident. People v. Miller, supra. Defendant’s conviction on charge (1) (Case No. 52,677) must be reversed.

As to charge (2), nothing has been presented to us which reveals error in defendant’s conviction for failing to remain at the scene of the accident. That conviction (Case No. 52,678) is accordingly affirmed.

Judgment reversed in Case No. 52,677. Judgment affirmed in Case No. 52,678.

DEMPSEY, P. J. and SULLIVAN, J., concur.


author: CRAVEN, J.,

text:
    The People ex rel. Roy Randall Richter, Petitioner, v. William C. Telford, Coroner of the County of Sangamon, The Board of Election Commissioners of the City of Springfield, Illinois, County Clerk of Sangamon County, Illinois, Respondents.
    Gen. No. 11,092.
    Fourth District.
    December 9, 1968.

      James R. Potter, of Springfield, for appellant.
    Richard A. Hollis, State’s Attorney of Sangamon County, of Springfield, and J. Waldo Ackerman, for appellees.
   CRAVEN, J.,

delivered the opinion of the court.

Roy Randall Richter, Democratic candidate for coroner of Sangamon County at the November 5, 1968, election, filed a petition for mandamus in the Circuit Court of Sangamon County against William C. Telford, Republican candidate for that office, and against the Board of Election Commissioners of the City of Springfield and County Clerk of Sangamon County to require such respective officers to list the name of W. C. Telford on the ballot without the word “Dr.” as a prefix and the letters “O.D.” as a suffix.

The circuit court denied mandamus. Petitioner appealed to this court and moved for an immediate transfer of the appeal to the Supreme Court under Supreme Court Rule 302(d) (Ill Rev Stats 1967, c 110A, § 302(d)). The Supreme Court refused to order an immediate transfer. Thereupon, petitioner filed a motion in this court for immediate determination of this appeal and asked waiver of notice requirements. This court granted the motion for immediate determination, and heard oral arguments. On the day of oral arguments, this court ruled that the circuit court order dismissing the petition for mandamus be affirmed, rendered a short statement supporting the ruling and stated that a formal opinion would follow.

The granting of a writ of mandamus in this type of case is discretionary. Mandamus will lie to command performance of an official act which is ministerial. The County Clerk and Board of Election Commissioners, in printing official ballots for an election, act in a ministerial capacity. Hence, we must look to the subject matter and to the provisions of the Illinois Election Code, which statutorily sets forth the Clerk’s duties.

The Election Code of Illinois (Ill Rev Stats 1967, c 46, §§ 7-60 and 7-62) makes it the duty of the county clerk of a county and the board of election commissioners of a city having such a board to prepare the official ballot for election and “to place upon the official ballot to be voted at the election the names of all candidates nominated for office, as herein provided, as shown by the certificate of the canvassing board . . . .” Section 16-3 of the Election Code provides that: “The names of all candidates to be voted for in each election district . . . shall be printed on one ballot, . . . .”

“Name,” as provided by the statute, should be given its usual sense and ordinary meaning unless it has become a word of art or has been given other accepted meaning. It ordinarily means the distinctive designation of a person or thing. (Webster’s Third New Intemational Dictionary, unabridged (1966), p 1501.) This does not include other descriptive terminology.

While this is a case of first impression in Illinois, a similar problem has been considered by the courts of our sister states of Missouri, New York and Ohio. Without exception, these courts have held that it is not permissible to place on an official ballot a characterization or designation before or after a candidate’s name, as

“The ultimate test of fairness is that the ballot furnish to each elector a reasonable opportunity to express his choice, as where all the names are printed in the same style ... It would be neither fair nor practical to permit the insertion of such title or degrees with candidates’ names, much less the myriad appellations and items of descriptive matter that might logically follow and which election fever and ingenuity would undoubtedly generate.” Toigo v. County Board of Elections, 51 Misc2d 754, 273 NYS2d 781, 782-785 (Sup Ct 1966).

See also: State v. Crowe (Mo), 382 SW2d 38; State ex rel. Whetsel v. Murphy, 122 Ohio St 620, 174 NE 252; 26 Am Jur2d, Elections, § 218.

While the statutory provision (chapter 46, section 7-60) requires that the names of the candidates be placed on the ballot “as shown by the certificate of the canvassing board,” this can mean only the name as so shown. The statute does not authorize any and all language shown on the certificate, including prefixes, suffixes, and other appellations or slogans to be printed on the ballot. The Clerk, acting in his ministerial capacity, is authorized to print on the ballot only the language provided by statute.

We deem the provisions of the Election Code controlling and conclusive of this matter. The contention of petitioner that the proposed listing of the name “Dr. W. C. Telford, O.D.” directly violates Ill Rev Stats 1967, c 91, § 105.5, the Optometry Act, is here rejected. That act has no application to the manner of listing a name on an election ballot. Our opinion is further confirmed by the fact that the Election Code at one time provided, in section 7-60, that not only the name, but “the name and description” of the candidate should be printed on the ballot. The words “and description” were deleted by an amendment in 1955. Hence, the word “Dr.” and the letters “O.D.” would constitute “description,” not “name,” and should not be printed on the official ballot.

The Election Code, however, provides adequate mechanics for a person aggrieved or a candidate to present objections to the manner and style in which a candidate’s name is to be placed on the ballot. It further prescribes the time for pursuing such remedies.

Objections, prior to a primary, as to candidates of “political parties” are to be made as provided in sections 10-8 through 10-10.1 (Ill Rev Stats 1967, c 46, § 7-12.1; §§ 10-8 through 10-10.1). Objections under section 10-8 must be filed within five days after the last date for filing the certificate of nomination. Certificates of nomination for candidates of “minor political parties” and “groups” and nomination papers of independents for county offices must be filed at least 92 days prior to election day. (Ill Rev Stats 1967, c 46, § 10-6.) The clerk must deliver the objections to the Electoral Board chairman within 24 hours after they are filed in the clerk’s office. The County Electoral Board then hears such objections within not less than three nor more than five days after the objections and papers are delivered to its chairman, and thereafter it renders its decision. Judicial review in the circuit court then may be filed within ten days after the decision of the Electoral Board, and the hearing must be held within thirty days of the filing of the petition for review and the cause decided promptly. (Ill Rev Stats 1967, c 46, § 10-10.1, added by L 1967.)

While certain statutory election-time provisions have been held to be not mandatory, but directory only, in several recent cases (People ex rel. Bell v. Powell, 35 Ill 2d 381, 221 NE2d 272 (1966); People ex rel. Harris v. Powell, 35 Ill2d 384, 221 NE2d 274 (1966); People ex rel. Meyer v. Kerner, 35 Ill2d 33, 219 NE2d 617 (1966)), the rationale of these cases is that such provisions were enacted to provide an orderly procedure and ample time for the clerk to prepare the ballots and that where ample time yet remains for the clerk to perform his duty, these time provisions do not need to be strictly followed. While the application of these cases fails to give adequate guidelines to a clerk in carrying out his duties, they do provide a means for effecting justice since the filing dates can be properly relaxed when viewed by a court in their proper context.

The record in this case shows that ballots for the general election, bearing the objected to prefix and suffix, had been printed both by the respondent County Clerk and the Board of Election Commissioners. These ballots were printed prior to the filing of the instant proceeding which was commenced on October 21, 1968. Of necessity the ballots had been printed earlier, for they had to be available for mailing to military service absentee voters at least thirty days prior to the filing of this action. (Ill Rev Stats 1967, c 46, § 16-5.01.)

The petitioner was a candidate of the Democratic Party at its primary, and at the time of that primary the respondent was nominated by his party on a ballot using the same designations both as to prefix and suffix as were sought to be eliminated by the petitioner. The petitioner has had notice, therefore, at least since June 11, 1968, of the descriptive matter sought to be removed. Proper and timely use by him of the mechanics provided by the Election Code could have avoided the necessity for application for the writ of mandamus. Under the facts and circumstances of this case, the denial of the writ by the circuit court was correct and its judgment is affirmed.

Judgment affirmed.

TRAPP, P. J., and SMITH, J., concur.


author: TRAPP, P. J.

text:
    Winona Peithman, Plaintiff-Appellant, v. Max E. Beals and O’Neil Bros. Construction Co., a Co-partnershipi, and Harold O’Neil and E. J. LaBoube, Co-partners Doing Business as O’Neil Bros. Construction Co., Defendants, Thomas H. Brehm, Defendant-Appellee.
    Gen. No. 10,945.
    Fourth District.
    December 9, 1968.

      Zimmerly & Johnson, of Champaign (Philip C. Zimmerly, of counsel), and Monroe & McGaughey, of Decatur, for appellant.
    Mitchem, Hendrix & Aldeen, of Urbana (Charles W. Hendrix, of counsel), for appellee.
   TRAPP, P. J.

Plaintiff appeals from a summary judgment entered in favor of the defendant, Thomas Brehm.

The issue was determined below upon the complaint and the facts disclosed in the discovery deposition of Brehm. Plaintiff, Winona Peithman, was a passenger in an automobile which had been stopped at a construction barricade on Route 10, west of Champaign, Illinois. Brehm, travelling in the same direction, had stopped one or two car lengths behind plaintiff’s automobile. His car had its lights, including taillights, burning. While the two cars were standing for something less than a minute, one Beals approached the scene driving a truck in the same direction. He struck the defendant’s automobile and pushed it into the plaintiff’s automobile. The pavement was wet and muddy.

Defendant stated that he saw the truck approaching in his rearview mirror and realized the truck would not be able to stop. He took his foot off his brake a split second before the impact to “cushion” the shock and reapplied the brake immediately. When defendant released his brake his car may have moved half a car length closer to plaintiff’s car. However described, defendant’s action provided Beal’s truck five or ten feet more in which to stop. Brehm’s car was possibly one and one-half car lengths behind plaintiff’s car when struck by the truck and was pushed into plaintiff’s car. Plaintiff’s car may have moved the distance of a foot upon impact. There was very little damage to the rear of plaintiff’s car. Defendant’s car took most of the shock.

Plaintiff contends that defendant’s act in momentarily releasing his brake to cushion the shock was an intentional act which contributed to cause the collision between defendant’s car and plaintiff’s car, and the intentional act was therefore one of the proximate causes of the injury to the plaintiff.

As to Brehm, the complaint charges negligence in that he (a) negligently stopped his vehicle so close behind the car in which plaintiff was riding that it created a condition hazardous to plaintiff’s safety and, (b) negligently failed to keep the brakes of his vehicle “. . . firmly applied in such a manner that said vehicle could not be driven into and against the vehicle in which the plaintiff was riding.”

As to the first allegation, there are neither facts alleged nor authority cited which suggest that there is a violation of any duty in stopping, in a traffic holding situation, one or two car lengths behind, or distant from, a standing automobile.

The second allegation undertakes to make Brehm an insurer of the safety of plaintiff despite the absence of allegations of any facts showing a duty to have his brakes applied at all, as might be the case if there were facts alleged which disclosed that he was stopped upon a hill or grade. An issue created is whether or not Brehm was under any duty to completely intercept a danger to plaintiff, or insulate her from the negligent acts of another.

Plaintiff asserts that the defendant was guilty of negligence in releasing his brakes and cites in support thereof, Barlow v. Verrill, 88 NH 25, 183 A 857; Peavey v. Mutual Realty Corp., 82 Cal App 542, 255 P 858; Kirsch v. J. G. Riga & Sons, Inc., 264 Mass 233, 162 NE 355; Fuller v. Magatti, 231 Mich 213, 203 NW 868; and McGregor v. Reid, Murdock & Co., 178 Ill 464, 53 NE 323. The first four cases concern the results of leaving a car parked on a hill to the injury of a person. In the present case it cannot be said that in the absence of set brakes the vehicle operated by the defendant would move on its own to the likely injury or damage of anyone. The fifth case concerned a falling elevator where the building owner failed to have certain automatic safety devices, designed to stop an elevator in case of cable break, properly inspected. In all of these cases there was a positive duty to have brakes applied or the safety devices operative, for the reason that the instrumentality causing the injury would otherwise move on its own to the likely injury or damage of someone. In the cases cited the force of gravity was one of the forces the brakes or safety devices were designed to offset, and in each case the likelihood of harm in the event of failure to use the devices was clearly foreseeable. Therefore, the failure to set the brakes or keep the devices in order could be categorized as negligence.

We are cited no authority which would make it a standard of ordinary care for all cars in a line to have brakes set so that the rear cars in a line would perhaps absorb a shock and prevent a force from being transmitted farther down a line of cars than was absolutely necessary under optimum management of those in the rear for the benefit of those in the front.

Plaintiff next asserts that defendant made a choice in the placement of harm to his own advantage, and to the disadvantage of plaintiff. He cites the following statement of Restatement of The Law, Torts, 2nd, §73:

“The intentional infliction upon another of substantial bodily harm, or of a confinement involving substantial pecuniary loss, for the purpose of protecting the actor from a threat of harm or confinement not caused by the conduct of the other, is not privileged when the harm threatened to the actor is not disproportionately greater than the harm to the other.”

This section is not relevant to a cause of action founded upon a theory of negligence. The quoted section is a part of chapter 4, Topic I of the Restatement relating to self-defense. The “Scope Note” states that this topic deals with that form of privilege to inflict what amounts to a “battery,” were it not for the fact that the act is under the protection of the privilege stated. Such proposition is demonstrated in illustrations of the party A throwing an infant from the sled to gain time as against the pursuing wolves; or again, the party B grabbing party C to serve as a shield from the pistol shooting A.

The Restatement of The Law, Torts, 2nd Ed, chapter 2, distinguishes battery as a tort from negligence in that battery involves “acts which were intended to invade some interest of personality.” Again section 14 of such chapter 2 states that injury must be caused by an act done by the person whose liability is in question. As an illustration of this proposition, if party A pushes party B against party C so that C is injured, party A is subject to liability but not party B. To like effect see Harper & James, The Law of Torts, 1956, chapter 3, § 3.3, p 215. This test also distinguished the tort of battery, an intentional invasion of the interests of another, from acts of negligence. As to “battery,” it is said:

“If the mischief was brought about by the acts of a third person or by some other force without the conscious concurrence of any act of the defendant, no liability arises because there is no conduct by the defendant which can be made the basis for liability.”

Plaintiff also cites United States v. Holmes, 1 Wall Jr 1, Fed Cases 15383; Laidlaw v. Sage, 158 NY 73, 52 NE 679; Arp v. State, 97 Ala 5, 12 So 301; Leonard v. State, 217 Ala 60, 114 So 798; Brewer v. State, 72 Ark 145, 78 SW 773; State v. Capaci, 179 La 462, 154 So 419, and People v. Repke, 103 Mich 459, 61 NW 861.

The cases cited refer to intentional acts overtly and directly applying force to another. In each case the acts of the defendant were intended to harm someone. In the Holmes case, where a small boat incapable of carrying all persons aboard was about to capsize, defendant pushed passengers into the water, and the passengers drowned. In the Laidlaw case, an obviously deranged person threatened to drop a bag of dynamite, and defendant was charged with moving plaintiff a few inches to the left. The court found defendant’s action was not the proximate cause of plaintiff’s injury. In Laidlaw v. Sage, 158 NY 73, 52 NE 679, on 689, the court said:

“All the injuries which plaintiff sustained were caused directly and immediately by the act of Nor-cross in exploding the dynamite. That was clearly the proximate, and we think the only, cause of the plaintiff’s injury. It was the only efficient cause, as, confessedly, without the explosion the plaintiff would not have been injured; and under no circumstances can it be properly said that the act of the defendant in changing the plaintiff’s position a few inches to the left of where he previously stood caused the explosion or occasioned the catastrophe.”

The Arp, Capaci, Repke and Leonard cases are cases of participation in murder where defendants sought to claim that they participated under threat to their own lives.

Plaintiff argues that it is a question for the jury whether defendant should have realized that his act created a risk of harm to plaintiff. The principle asserted is that if a chosen course unintentionally harms another, liability is imposed if the actor realized that he created an unreasonable risk to another. Plaintiff cites Restatement of The Law, Torts, 2nd Ed § 75. Such section is also to be considered, as was § 73, in the light of privilege to commit a “battery” as distinguished from duties which, if violated, constitute negligence. By reason of such limitation § 75 is not a standard of duty in cases of negligence. Plaintiff also cites Shaw v. Lord, 41 Okla 347, 137 P 885; and Paxton v. Boyer, 67 Ill 132. In Shaw v. Lord, supra, defendant police officer, seeking to arrest a dangerous fugitive, shot at him in a hotel corridor and injured a hotel employee. This is a simple negligence case where a dangerous weapon must be used with ordinary care. In Paxton v. Boyer, the defendant, who had been knocked down, mistook the plaintiff for his assailant and stabbed the plaintiff, believing that the act was necessary self-defense. These cases involve direct and affirmative action calculated or expected to harm someone. In each the question was whether the act involved unreasonable risk to the party who turned out to be a plaintiff.

The authorities cited do not sustain plaintiff’s contention that it is a jury question, under the circumstances alleged, whether an unreasonable risk to plaintiff arose from defendant’s conduct.

The defendant, Brehm, did not drive his car on, into or against the plaintiff’s vehicle. Hence this case is not essentially different from that where an automobile is brought to a stop and as it stands behind another is pushed into the car ahead by a car behind, as in Welsh v. Centa, 75 Ill App2d 305, 221 NE2d 106.

The judgment of the trial court is affirmed.

Affirmed.

SMITE and CRAVEN, JJ., concur.


author: EBERSPACHER, J.

text:
    E. O. Pennington, d/b/a Penny’s Diesel Service, Plaintiff-Appellant, v. Clyde Alexander, d/b/a Alexander Lumber Co., Mercantile “All-In-One” Loans, and M. L. C. Corporation, Inc., Defendants-Appellees.
    Gen. No. 68-14.
    Fifth District.
    December 9, 1968.

      Dowell & Dowell, of Mt. Vernon, for appellant.
    William C. Stephens, Murray & Stephens, of Centralia, for appellees.
   EBERSPACHER, J.

This is an action brought in the Circuit Court of Jefferson County to foreclose a lien for services, materials and storage. The cause was submitted to the trial court on the pleadings. From a finding and decree that the lien of the defendant, M. L. C. Corporation, Inc., was entitled to priority over the lien of the plaintiff, the plaintiff has appealed.

The facts as they appear from the pleadings are as follows:

On May 10,1965, the defendant, Clyde Alexander, doing business as Alexander Hardwood Lumber, being then the owner of a GMC Diesel Tractor, borrowed $22,500 from the defendant, M. L. C. Corporation, Inc., and executed a security agreement covering the tractor and other equipment. The lien of the security agreement was perfected by filing a financing statement with the Secretary of State on May 27, 1965, and by applying for a new certificate of title from the Secretary of State which was issued on June 3, 1965, and which shows on its face the lien of M. L. C. Corporation, Inc., dated May 10, 1965 in the amount of $22,500.

On October 24, 1965, Alexander took the tractor to plaintiff, who operates a repair shop near Mt. Vernon, Illinois, for an engine overhaul. On January 26, 1966, plaintiff filed a Notice of Claim for Lien for repairs, completed on November 18, 1965, in the amount of $2,066.23, and for storage from November 19, 1965, to January 10, 1966, pursuant to the provisions of chapter 82, § 40 et seq., Ill Rev Stats 1965. On January 28, 1966, the plaintiff filed this suit to foreclose the lien. The defendant, M. L. C. Corporation, Inc., filed its Answer, setting up its lien and asserting the priority thereof over the lien sought to be foreclosed by plaintiff. The case was heard on a stipulation that the facts as set forth in the pleadings were true. Subsequently, in March 1967 and before the trial court had made a decision concerning the conflicting lien claims, the tractor was sold for $3,000, and the parties stipulated that the money should be paid to the Clerk pending the final decision of the court. On October 23,

1967, the court entered a decree finding the lien of the defendant to be entitled to priority over the lien of the plaintiff, and directing the Clerk to apply the money held by him first to the payment of the defendant’s lien and the balance, if any, to plaintiff’s lien.

The applicable statutes necessary for the decision of this cause and cited by both parties are section 9-310 of the Uniform Commercial Code, chapter 26, § 9-310, Ill Rev Stats 1965 and chapter 82, § 43, Ill Rev Stats 1965.

Section 9-310 of the UCC provides as follows:

“When a person in the ordinary course of his business furnishes services or materials with respect to goods subject to a security interest, a lien upon goods in the possession of such person given by statute or rule of law for such materials or services takes priority over a perfected security interest unless the lien is statutory and the statute expressly provides otherwise.”

The Illinois Code Comment following the section (Smith-Hurd Illinois Annotated Statutes) stresses that the two prime requisites of this section are (1) that the lienor furnish the services or materials in the ordinary course of business and (2) that the goods be in the lienor’s possession.

The Comment further states:

“This section does not apply to statutory nonpossessory liens, at least after the lienor has relinquished possession of the collateral. Examples of this kind of lien are . . . and the lien for labor and storage (Ill Rev Stats, Chap 82, §§ 40-47, 1961).”

Rather than relying upon possession, the complaint filed by the plaintiff alleged the filing of notice in conformity with chapter 82, section 41, Ill Rev Stats and prayed for a lien by virtue of chapter 82, section 40 et seq. Plaintiff for the first time, in this Court asserts that he had a common-law lien, and that the court should have determined the priority between defendant’s lien and plaintiff’s common-law lien. An examination of plaintiff’s complaint discloses that he asserted no common-law lien, and the relief he sought was statutory relief in the nature of foreclosure. The plaintiff did not allege continuous possession of the goods. This Court will not consider issues not contained in the record or presented to the trial court. Zehender & Factor, Inc. v. Murphy, 386 Ill 258, 53 NE2d 944 (1944).

Turning next to the Lien Act pertaining to labor and storage, we find that section 43 of that Act (c 82, §§ 40-47, Ill Rev Stats 1965) clearly sets forth the priority of liens. That section provides:

“The lien created by this Act shall be subject to the lien of any bona fide security interest as defined in the Uniform Commercial Code upon the same chattel recorded prior to the commencement of any lien herein created, but the lien herein created shall be in addition to, and shall not exclude any lien now existing at common law, and any lien existing by virtue of ‘An Act concerning liens for labor, services, skill, or materials expended upon chattels,’ filed July 24, 1941. As amended by act approved May 24, 1965. L 1965, p 742.”

The last exclusionary phrase refers to the common-law lien and statutory liens created by chapter 82, § 47a. It is clear that section 43 grants a priority to the lien of any security interest previously recorded. The section describes the lien held by the defendant, M. L. C. Corporation, Inc. As is said in the Uniform Commercial Code Comment (p 419, Smith-Hurd Anno Stat): “Some of the statutes creating such liens expressly make the lien subordinate to a prior security interest,” and referring to UCC, section 9-310 continues, “This Section does not repeal such statutory provisions.” Here the Lien Act was amended to give the security interest a priority over the alleged lien after the UCC was adopted.

Accordingly, the decree of the trial court shall be affirmed.

Affirmed.

GOLDENHERSH and MORAN, JJ., concur.

       See Author’s Commentary, Anderson’s Uniform Commercial Code, section 9-310:2 which follows:
      “Code § 9-310 declares the priority of the lien of persons furnishing services or materials with respect to goods in their possession. Such a lien is, basically, the artisan’s lien of the common law. Whether such a lien is based upon decision or statute law, Code § 9-310 gives it priority, with one exception, over a pre-existing security interest in the goods.
      “The single exception relates to a lien created by statute; such a lien does not have such priority if the statute expressly provides otherwise. Accordingly, the lien has priority when it is based upon the common law or decision, or when it is based upon a statute which is silent as to priorities, or which gives the lien priority. The lien is subordinated to the security interest only when the lien statute expressly so declares.”


author: CULBERTSON, J.

text:
    Barbara Jean Unger, Plaintiff-Appellant, v. Metropolitan Life Insurance Company, a Corporation, Defendant-Appellee.
    Gen. No. 68-20.
    Third District.
    December 10, 1968.

      Thomas Kavadas, Jr., of Sterling, for appellant.
    Ward & Ward, of Sterling, for appellee.
   CULBERTSON, J.

Plaintiff, Barbara Jean Unger, brought suit in the Circuit Court of Whiteside County to recover benefits of $1,096.55 (representing doctor and hospital bills for a hysterectomy), under a group health and hospitalization policy issued by the defendant, Metropolitan Life Insurance Company. After a bench trial, the court found that plaintiff could not recover because of material misrepresentation in the application for insurance and entered judgment for defendant. The plaintiff has appealed, contending that the finding of a material representation is against the manifest weight of the evidence; that defendant failed to establish the materiality of the alleged misrepresentation by competent evidence; and that the trial court erred in allowing an unqualified person to give opinion testimony on subjects in the field of medical science.

Stating only those facts brought into focus by the scope of plaintiff’s argument, it may be said that we are principally concerned here with two questions in the application for insurance coverage, which was dated September 28, 1966. They are, respectively and serially, questions 6 and 7 of Part C which inquired:

“6. Have you (or any other . . . family member) received treatment, attention or advice from any physician or other practitioner for, or been told by any other physician or practitioner that you (or said family member) had:
it
“(e) Epilepsy, paralysis, dizziness or any mental or nervous disorder?
“7. During the past 5 years, have you (or any other family member) had any diseases, ailments, or injuries not revealed elsewhere on this application for which there was treatment, examination or advice by or under the direction of a physician or other practitioner, or at a clinic, hospital, dispensary or sanitorium.” (If the answer to this question was “Yes,” a subsequent space was provided for explanation.)

Undisputed evidence shows that the plaintiff, a registered nurse, visited a psychiatrist in 1961, 1962 and 1964, who diagnosed that she was suffering from a “psychoneurosis anxiety state.” No mention of these visits was made in plaintiff’s answer to question 7, and a negative answer was given to the inquiry of question 6 about treatment for “mental or nervous” disorders. Further, the record shows that plaintiff, as the result of an accident occurring December 4, 1965, had been treated by her doctor for a “severe” cervical sprain, or whiplash injury on February 18 and May 25, 1966, and that she had also been treated for cervicitis on September 21, 1966, which was but seven days before the application was signed. No mention of the treatment for either ailment was given in response to question 7. Plaintiff, with some corroboration from her husband, testified that she had mentioned these ailments to the insurance agent when the latter had read question 7, but that he had failed to make note of them in the answers he was recording. The agent, on the other hand, testified he had not been told about either ailment.

During the course of the trial plaintiff introduced the testimony of her employer, Dr. L. T. Ballard, whose medical specialty, if any, is not revealed in the excerpts of record before us, and that of Dr. M. D. Burnstine, a general practitioner with a subspecialty in neurology, who had been plaintiff’s family physician for many years and who had performed the hysterectomy which provoked the present litigation. Both men testified, in substance, that they did not consider a psychoneurosis anxiety state to be a mental or nervous disorder, and that they had never known plaintiff to suffer from a mental or nervous disorder. For the defendant, which had the burden of proving that misrepresentations in the application were material to the acceptance of the risk, it was established by the testimony of Henry Bradley, its senior life underwriter, and by excerpts from a company manual, that the company would decline to insure where it appears that an applicant has suffered an episode of anxiety state neurosis within three years prior to an application. In explaining the company’s attitude, the witness stated that claim experience had shown that such physical conditions as gastro-iniestinal disorder, duodenal ulcers, heart palpitations and high blood pressure were often secondary to a psychoneurosis anxiety state. Additionally, proof was made from the manual that where an applicant has sustained a severe whiplash injury, a rider must be attached to the policy excluding coverage for diseases in, or injuries to, the cervical spine.

It is well established in this jurisdiction that an insurance policy may be avoided where, in the application for insurance, a misrepresentation is accomplished by withholding information material to the risk. (Campbell v. Prudential Ins. Co. of America, 15 Ill2d 308, 155 NE2d 9.) Whether the matters withheld, or misrepresented, are material is determined by the question of whether reasonably intelligent and careful men would have regarded the facts withheld “as substantially increasing the chances of the event insured against, so as to cause a rejection of the application or different conditions.” (Weinstein v. Metropolitan Life Ins. Co., 389 Ill 571, 577, 60 NE2d 207.) And as Campbell and Weinstein, supra, both indicate, the misrepresentation, whether it. be accomplished by stating facts or withholding facts, need not be made with intent to deceive if it materially affects the risk (see also: Ill Rev Stats 1965, c 23, pars 766 and 971a), nor need the misrepresentation be one with regard to a matter upon which a claim is later predicated.

Because the defendant introduced no proof to contradict the testimony of plaintiff’s medical witnesses that a psychoneurosis anxiety state is not a “mental or nervous” disorder, she asserts that she was not guilty of giving a false answer when question 6 was answered in the negative, and that the court’s finding of a misrepresentation is therefore against the manifest weight of the evidence. This contention, however, is an over-simplification of the application, the record and the issue. As we view it, the question to be answered is whether the interrogatories in the application form were sufficiently specific to require plaintiff to disclose information concerning her psychiatric treatment. And while it cannot be said this record clearly establishes that a psychoneurosis anxiety state is a mental or nervous disorder, so as to require disclosure under question 6, it is more than clear in our opinion that the visits to the psychiatrist should have been disclosed in response to question 7. The latter question, in plain, simple and unambiguous terms, asked, among other things, if the applicant had within 5 years, any disease, ailments, or injuries not revealed elsewhere in the application for which treatment, examination or advice was received from a physician or other practitioner. By withholding the information of psychiatric treatment, plaintiff prevented the insurer from appraising the risk on the basis of the facts as they existed.

Furthermore, plaintiff’s argument appears to overlook that even without considering the matters concerning her psychiatric problem and treatment, the record presents a basis for holding that a material misrepresentation occurred when she withheld information concerning her cervical sprain. Once again, question 7 was sufficiently clear and specific to have required disclosure of her treatment for this ailment, and the failure to disclose prevented defendant from a true appraisal of the risk. It is true that the question of whether the ailment was disclosed to the agent as the application was being filled out was in conflict. The trial court, however, had the function of determining the credibility of the witnesses and the weight to be accorded their testimony, and we cannot say that the finding of the court that a misrepresentation had occurred in such respect is against the manifest weight of the evidence. (See: Harvey v. Lippens, 87 Ill App2d 363, 231 NE2d 613; Landolt v. Stratmann, 87 Ill App2d 81, 230 NE2d 498.) Particularly is this true, even if we accept plaintiff’s version of what occurred when the application was being completed. Her further testimony is a concession that the full extent of the cervical sprain was not revealed, but was represented as a little “overriding of her vertebrae” for which plaintiff, as a nurse, treated herself at home. Refuting this representation was an exhibit admitted on behalf of defendant which diagnosed the cervical strain as “severe,” and revealed that there had been treatment with a cervical collar, muscle relaxants and diathermy.

Plaintiff next contends that defendant failed to establish by sufficient or competent evidence that her misrepresentations were material, the principal thrust of her argument being that Bradley, as an employee of defendant, was not competent to testify to such matter. Some jurisdictions, it is true, have held that an employee of an insurer is not competent to testify to materiality, the underlying notion being that materiality should not be settled by a pronouncement of the company, or its agents, after a policy claim has occurred. (See: 29A Am Jur, Insurance, § 1871.) Other courts, however, have held to the contrary, and this appears to be the view in Illinois. (Moyer v. John Hancock Mutual Life Ins. Co., 6 Ill App2d 1, 5, 126 NE2d 157; Government Employees Ins. Co. v. Dennis, 65 Ill App2d 365, 372, 212 NE2d 759.) The trial court determined this issue and its determination was supported by the record in this cause.

The final contention of defendant, namely that the trial court improperly permitted Bradley to express opinions in the field of medical science which he was not qualified to give, is likewise without merit. The record reveals that he expressed no medical opinion. Rather, based upon his experience as an underwriter, he merely stated that he had seen claims where there were physical conditions which were secondary to a psychoneurosis anxiety state, such as gastro-intestinal disorder, duodenal ulcers, heart palpitations and high blood pressure. Certainly the witness was competent to testify to matters within his own experience. Cf. Oakland Meat Co. v. Railway Express Agency, Inc., 46 Ill App2d 176, 196 NE2d 361.

The judgment of the circuit court of Whiteside County is affirmed.

Judgment affirmed.

ALLOY, P. J. and STOUDER, J., concur.


author: MR. JUSTICE MORAN

text:
    Harold E. Lund, Plaintiff-Appellant, v. E. D. Etnyre & Co., an Illinois Corporation, Defendant-Appellee.
    Gen. No. 68-28.
    Second District.
    December 10, 1968.
    Rehearing denied January 9, 1969.

      Reno, Zahm, Folgate and Skolrood, of Rockford, for appellant.
    Wolfe, Hubbard, Yoit and Osann, of Chicago, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

Plaintiff brought suit for an accounting for commissions that were allegedly due him on the sale of certain machines. The defendant filed a motion to dismiss the complaint under section 48 of the Civil Practice Act (HI Rev Stats 1967, c 110, § 48 (g)). The sole ground of the motion was that the agreement sued upon by the plaintiff violated the Statute of Frauds, in that it was an agreement which could not have been performed within one year. Section 48 provides that, where the grounds for dismissal do not appear on the face of the pleading attacked, as here they did not, the motion may be supported by affidavits, and that procedure was followed here. Defendant filed affidavits in support of its motion, and the plaintiff filed counteraffidavits. The trial court then entered an order granting defendant’s motion and dismissing the complaint with prejudice. Plaintiff appeals from that order.

The basic facts of the case, as they appear from the complaint and the affidavits, are simple. The plaintiff, Harold Lund, was at one time employed by the Koehring Company, a manufacturer of road building equipment. One type of machine manufactured by Koehring was a “chipspreading” machine, the function of which is to spread rock chips on a road surface which has been freshly sprayed with liquid bitumen or asphalt. It appears that plaintiff played a major role in the design and manufacture of the chipspreader marketed by Koehring and, while he was employed by this company, he executed a restrictive covenant not to compete, which, so far as it is relevant to this case, purported to restrict him from engaging in the design or manufacture of any competing chipspreader at any time before September 1,1962.

In January of 1960, plaintiff voluntarily left the employ of Koehring, and began corresponding with one of defendant’s officers concerning the possibility of going to work for defendant. Finally, on June 20, 1960, as a result of a meeting at defendant’s offices in Oregon, Illinois, plaintiff was hired by the defendant. The defendant was represented at this meeting by Joseph McCoy and Horace H. Etnyre, two of its officers. Both sides agree that an oral agreement was entered into at that time, whereby plaintiff was employed at a salary to work for the defendant in areas which were apparently outside the scope of his restrictive covenant with Koehring. Plaintiff alleges, and the supporting affidavit of McCoy (who is no longer employed by defendant) confirms, that it was further agreed at this meeting of June 20, 1960 that, as soon as plaintiff was free of his restrictive covenant with Koehring, he would design a chipspreading machine to be marketed by the defendant, and that he would receive a royalty of $200 on each machine sold by defendant. The affidavit of Horace H. Etnyre admits that the matter of a chipspreading machine was discussed, but states that it was deferred until a later time, and denies that the royalty agreement claimed by plaintiff was made.

Plaintiff began work pursuant to the oral agreement, and was paid his regular salary. Then, in May of 1962, about four months before the restrictive covenant expired, plaintiff began work on the design of a chip-spreader. Plaintiff alleges that he began this work at the request of defendant, and this is not denied by defendant. Plaintiff alleges, and defendant does not deny, that he did design the chipspreader, that the machine was manufactured according to his design, and was ready for marketing by the fall of 1963. It is further alleged and undenied, that since that time a substantial number of the machines designed by plaintiff have been sold by the defendant, and that defendant has refused to pay any royalties to plaintiff. He left defendant’s employ largely because of this refusal.

Although it is not dispositive of any question before us, it is of interest to note that plaintiff and defendant were sued by Koehring in the federal court, based upon alleged patent infringement, misappropriation of trade secrets, and other unfair competition. Koehring Co. v. E. D. Etnyre & Co., 254 F Supp 334 (1966). One of the grounds of the complaint in that case was the breach of the restrictive covenant, and, although the court found that Koehring had failed to prove a case of patent infringement, misappropriation of trade secrets or the like, it did find Lund and Etnyre liable for breach of the restrictive covenant, and entered judgment against them, jointly, for $2,475 as the amount found due as liquidated damages under the provisions of the restrictive covenant. The court, at pp 362-363, further found that Koehring had failed to show any actual damages proximately resulting from Lund’s breach of the restrictive covenant.

On the facts set forth in the complaint and the opposing affidavits, we think the law in regard to the applicability of the Statute of Frauds is clear. The pro-

vision involved is the part of section 1 (Ill Rev Stats 1959, c 59, § 1), which provides:

“That no action shall be brought . . . upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.”

Plaintiff does not dispute that the clear terms of the oral agreement in regard to the royalties provided that he was not to start work on the chipspreader until after September 1, 1962, the date his covenant expired. Thus, the date that he would begin performance on the chip-spreader design was more than two years after June 20, 1960, the date the oral agreement was made. Plaintiff argues that, since he could have started designing the chipspreader immediately, as a physical matter, notwithstanding the terms of his agreement, this means that the agreement “could” have been performed within the year. In support of his position, he cites authorities for the proposition that, if the agreement is capable of performance within a year, the Statute does not apply. Plaintiff misunderstands this line of cases, however, because they are not referring to a physical possibility of doing the work contemplated in a shorter time than that specified in the agreement. Rather, it is a question of whether, ;pursuant to the terms of the agreement, performance is possible within a year. “The Statute does not apply if it appears from a reasonable interpretation of the terms of the agreement that it is capable of being performed within a year.” (Emphasis added.) Hall v. Gruesen, 22 Ill App 2d 465, 470, 161 NE2d 345 (1959). Here, on plaintiff’s own allegations, he could not have performed the agreement within a year of its making because, by its terms, he was not to start until more than two years after its making. It is, of course, the date the agreement is made, rather than the date performance is started, that marks the beginning of the year. Thus, even though plaintiff might have completed design of the chipspreader in less than a year, once he got started, (as it appears he actually did), this is irrelevant. The relevant inquiry is whether he could have performed the agreement according to its terms within a year from the date of the agreement. The rule is illustrated by Sinclair v. Sullivan Chevrolet Co., 31 Ill2d 507, 202 NE2d 516 (1964), where the complaint alleged that plaintiff entered into an oral agreement on May 30, 1960, whereby he was to be employed as defendant’s sales manager for a one year period starting June 6,1960. The court held that this contract was within the Statute of Frauds since it could not have been performed within one year from the date it was entered into. For similar holdings, see Chadwick v. Morris & Co., 170 Ill App 569, 570 (1912) and Haynes v. Mason, 30 Ill App 85, 87 (1889). We conclude, therefore, that the agreement in this case did call for performance which could not be completed within a year.

If the uncontradicted allegations in the complaint and supporting affidavits did not establish that the plaintiff has fully performed his part of the agreement, we would affirm the dismissal by the trial court. However, the complaint and the supporting affidavits do allege that plaintiff designed the chipspreader and that many machines have been sold by the defendant. This is not denied by the defendant. Accordingly, this case falls within the rule that, even though the oral agreement violates the Statute of Frauds, nonetheless, where one party has fully performed the agreement, the other party will be estopped to rely upon the Statute. Collins v. Addicks, 351 Ill App 266, 270-271, 114 NE2d 801 (1953). Defendant argues that plaintiff did not fully perform his part of the agreement, inasmuch as he eventually resigned from defendant’s employ. However, the employment agreement itself was terminable at will, and plaintiff was under no obligation, insofar as his regular work was concerned, to remain in defendant’s employ for any particular period of time. The performance of his regular duties is not in issue in this case. The only question of performance is in regard to the designing of the chipspreader, and, on the present state of the record at least, it is undenied that plaintiff did fully perform that part of the alleged agreement. The fact that he resigned from defendant’s employ after completing the design for the chipspreader is entirely unrelated to the question of whether he did everything he was required to do to become entitled to the royalties.

We are not called upon at this time to decide the question of what effect, if any, plaintiff’s breach of his covenant with Koehring has upon his standing to recover against Etnyre. There are cases in which it would offend public policy to allow a plaintiff to predicate an action against one person upon conduct which constitutes a breach of duty toward another person. We do not believe that it can be said categorically that a plaintiff who breaches a restrictive covenant with his former employer is thereby barred from recovering compensation earned (in violation of the covenant) from a new employer. Much will depend upon the facts of the individual case. See, e. g., the differing points of view expressed in the separate concurring opinions in Reiner v. North American Newspaper Alliance, 259 NY 250, 181 NE 561 (1982) and the annotation on that case at 83 ALR 32.

For the foregoing reasons, the judgment of the lower court is reversed, and the case is remanded for further proceedings in accordance with the views expressed in this opinion.

Reversed and remanded.

DAVIS and SEIDENFELD, JJ., concur.


author: JUSTICE SCHEINEMAN.

text:
    Charles S. Fredericks and Bernadine A. Fredericks, Plaintiffs-Appellees, v. Frederick R. Schaab, Defendant-Appellant.
    Gen. No. 68-30.
    Third District.
    December 10, 1968.
    Rehearing denied January 17, 1969.
    McConnell, McConnell, Kennedy & Morris, of Peoria, for appellant;
    Heyl, Royster, Voelker & Allen, of Peoria, for appellees.
   Opinion by

JUSTICE SCHEINEMAN.

Not to be published in full.


author: PRESIDING JUSTICE ABRAHAMSON.

text:
    Howard B. Quinn, Plaintiff-Appellant, v. Charles E. Larson and Federal Savings and Loan Insurance Corporation, a Corporation, Defendants-Appellees.
    Gen. No. 68-30.
    Second District.
    December 10, 1968.
    Samuel E. Hirseh, of Chicago, for appellant;
    McCarthy, Scheurich, Duffy and McCarthy, of Chicago, for appellees.
   Opinion by

PRESIDING JUSTICE ABRAHAMSON.

Not to be published in full.


author: MR. PRESIDING JUSTICE ABRAHAMSON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Dorpha Snodgrass, Defendant-Appellant.
    Gen. No. 68-38.
    Second District.
    December 10, 1968.

      John T. Beynon, PutjJic Defender, of Rockford, and John F. McNamara and Vern L. Davitt, for appellant.
    William R. Nash, State’s Attorney of Winnebago County, of Rockford, and Daniel D. Doyle, Assistant State’s Attorney, for appellee.
   MR. PRESIDING JUSTICE ABRAHAMSON

delivered the opinion of the court.

The defendant, Dorpha Snodgrass, was charged by information, after waiver of indictment, with leaving the scene of a fatal traffic accident which occurred on November 3, 1966. The information was in two counts, the first charged that Snodgrass left the scene of the accident in violation of section 133 (a) of chapter 95% of the Illinois Revised Statutes, and the second charged a failure to report the accident within 48 hours in violation of section 133 (b) of the same chapter. In a trial before a jury, the defendant was found guilty on both counts. The defendant’s motion for a new trial was denied and he was sentenced to two years probation, conditioned upon serving 60 days in the Winnebago County jail.

Section 133 (a) and (b) provides as follows:

“133. ACCIDENTS INVOLVING DEATH OR PERSONAL INJURIES.
“(a) The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident, or as close thereto as possible and shall then forthwith return to, and in every event shall remain at, the scene of the accident until he has fulfilled the requirements of Section 38. Every such stop shall be made without obstructing traffic more than is necessary.
“(b) Any person who has failed to stop or to comply with said requirements shall, within 48 hours after such accident or, if hospitalized and incapacitated from reporting at any time during such period, within 48 hours after being discharged from the hospital, report the place of the accident, the date, the approximate time, his name, address, the registration number of the vehicle driven, and the names of the occupants, if any, of such vehicle, at a police station or sheriff’s office near the place where such accident occurred. No report made as required under this Subsection shall be used, directly or indirectly, as a basis for the prosecution of any violation of Subsection (a) of this Section.”

The defendant does not appeal from his conviction under the first count of the information for a violation of paragraph (a) of section 133 but does maintain that the conviction under the second count was improper.

At approximately 8:30 p. m. on November 3,1966, within a few hours of the fatal accident, two police officers called at the Snodgrass home. The officers informed the defendant that they were investigating a “hit and run accident” and asked if they could examine his car. The defendant obligingly removed his car from his garage for their examination and answered all their questions but denied any knowledge of the accident.

It is argued by the defendant that under these circumstances it was error to convict him for a violation of a failure to report since it is obvious that the police had information as to “. . . the place of accident, the date, the approximate time, his name, address, the registration number of the vehicle driven, and the names of the occupants, if any, of such vehicle . . . .” within the 48 hours as provided in the statute. It is further contended by the defendant that the record discloses his complete cooperation with the police and that he in fact furnished all the information known to him since he denied any knowledge of the accident itself.

We recently considered a similar situation in the case of People v. Johnson, 79 Ill App2d 226, 223 NE2d 860. In that case, the defendant reported to the police that although he was near the scene of the accident that he did not recall “hitting anyone.” The court found that there was sufficient evidence that the defendant did in fact hit the victim with his automobile and that his “report” to the police could not be construed as a report of the “accident” since he denied knowledge that an accident occurred.

The same point is involved here. The jury considered the evidence and concluded that Snodgrass had in fact struck the victim with his automobile. It was the responsibility of the defendant to report that fact to the police within 48 hours, and although he did, in response to their inquiries, furnish information as to the ownership and use of his automobile, he did not report the accident itself. That such information would apparently have been redundant is beside the point. The purpose of the statute is to prevent the concealment of an accident by the driver involved. It was competently established that the defendant was involved in the fatal accident and he clearly failed to make the report as required by section 133(b). The report would not violate the defendant’s constitutional safeguard against self-incrimination since the last sentence of the paragraph prohibits its use as a basis for prosecution.

The defendant also contends that the court improperly gave the jury People’s Instruction No. 14, over objection. The excerpts of record contain only the allegedly improper instruction. It is necessary to include all the instructions, both given and refused, in the abstract or excerpt of record, to properly raise an alleged error in instructions before a court of review. People v. Donald, 29 Ill2d 283, 287, 194 NE2d 227; People v. Habdas, 94 Ill App2d 330, 339, 340, 236 NE2d 731.

For the reasons given, the judgment of the trial court will be affirmed.

Judgment affirmed.

DAVIS and MORAN, JJ., concur.


author: SCHEINEMAN, J.

text:
    Leonard P. Mertes, Plaintiff-Appellant, v. Central Security Mutual Insurance Company, Defendant-Appellee.
    Gen. No. 68-43.
    Third District.
    December 10, 1968.
    Rehearing denied January 17, 1969.
    Edward Zukosky, of Wenona, for appellant.
    Heyl, Royster, Yoelker & Allen, of Peoria, for appellee.
   SCHEINEMAN, J.

On May 30, 1965, Harry R. Ballard, while driving his car, collided with a car driven by Leonard Mertes, in which his wife, Mary Mertes, was a passenger. Ballard carried automobile liability insurance issued by Central Security Mutual Insurance Company. The Mertes filed a suit for damages against Ballard and obtained verdicts of $1,500 for each plaintiff. Thereafter the two Mertes filed this suit in garnishment against Ballard’s insurance company. The latter denied liability and defended on the ground that Ballard materially breached the Assistance and Cooperation clause of his policy. The garnishment action was heard by the court and resulted in a judgment for the insurance company. The plaintiffs perfected this appeal.

The defense was under a clause common to this type of insurance that “the insured shall attend hearings and trials and assist in securing and giving evidence and obtaining attendance of witnesses.”

There was some dispute as to whether Ballard gave timely and proper notice of the accident. The attorneys retained by the defendant obtained from Ballard a Reservation of Rights and Non-Waiver Agreement.

The defendant wrote Ballard in May, 1966, reminding him that his cooperation was necessary and that it was conducting the defense under the Reservation of Rights and Non-Waiver Agreement. The jury trial of Mertes v. Ballard took place the following December. Prior to that trial the defense elected to contest only the amount of the damages.

We agree with the trial judge that the Company received reasonable notice of the accident. It came from Ballard’s personal attorney rather than from Ballard himself, but that is sufficient. Simmon v. Iowa Mut. Cas. Co., 3 Ill2d 318, 121 NE2d 509.

As to what happened at the jury trial, the evidence in the garnishment action indicates the following: On December 7, 1966, attorneys for the defense talked to Ballard by telephone, notifying him of the trial setting December 12 and that his presence was necessary. On December 9 there was another telephone call to Ballard, during which Ballard promised to be in Lacón on December 12 for the trial.

On December 12 Ballard did not appear at the trial in spite of his promise. One of the attorneys for defendant then drove to see Ballard personally, and told him that the trial was in progress, and that his appearance was required. Ballard promised to appear in court that afternoon but declined the attorney’s offer to provide transportation. Ballard did not appear at any time during the trial.

It is contended for plaintiffs the evidence did not show either a lack of good faith or a definite refusal of Ballard to cooperate. We cannot agree. His refusal to attend the trial was not in words but in acts. His failure to appear after repeated promises to do so, shows lack of good faith and a wilful refusal to conform to the requirements of his policy.

We believe it is of great importance in a tort action that the defendant charged with negligence be present at the trial. His absence is a handicap to defense counsel. We believe that no court should conjecture that his indifference did not prejudice his case. So it has been held that a showing of prejudice is not required. Gallaway v. Schied, 73 Ill App2d 116, 219 NE2d 718. The opinion cites Schneider v. Autoist Mut. Ins. Co., 346 Ill 137, 178 NE 466; also a number of decisions from other jurisdictions which announce conclusions similar to those stated herein: Shalita v. American Motorist Ins. Co., 266 App Div 131, 41 NYS2d 507, appeal denied, 266 App Div 885, 44 NYS2d 101; Indemnity Ins. Co. of North America v. Smith, 197 Md 160, 78 A2d 461; Royal Indemnity Co. v. Rexford, 197 F2d 83 (CA 5th, Fla); Glen Falls Indemnity Co. v. Keliher, 88 NH 253, 187 A 473.

Likewise we do not regard the plaintiffs as entitled to be regarded as third-party beneficiaries of Ballard’s contract. He paid for it and agreed to specific conditions. Plaintiffs have no contract with defendant whereby they paid for anything or agreed to anything. In the Gallaway case supra, on similar facts, the court held: “Plaintiffs had no greater rights than those of the insured.”

For the reasons given the judgment is affirmed.

Affirmed.

ALLOY, P. J. and STOUDER, J., concur.


text:
    John H. Mulder, Plaintiff-Appellant, v. Board of Trustees, Rockford Firemen’s Pension Fund, Defendant-Appellee.
    Gen. No. 68-44.
    Second District.
    December 10, 1968.

      Joseph A. Londrigan, of Springfield, and John Frank Pelgen, of Rockford, for appellant.
    Gilbert, Powers & Graves, of Rockford, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court.

This appeal arises from a decision of the Board of Trustees of the Rockford Firemen’s Pension Fund, defendant herein, which denied the plaintiff’s application for disability benefits.

A stipulation of facts entered into between the parties discloses that the plaintiff, John H. Mulder, entered the fire service on April 7, 1947, and resigned on August 9, 1967. In 1959 he received a nonservice connected injury to his back which necessitated surgical intervention on two occasions.

On June 8, 1967, the plaintiff filed an application with the defendant requesting a disability pension and, on the same day, took a sick leave of absence because of his back condition. Thereafter, on June 16, 1967, the fire chief ordered the plaintiff to take his annual vacation from June 20, 1967, until July 20, 1967, and further ordered that upon his return he would be assigned to the position of Fire Inspector at the same rank and the same rate of pay as Lieutenant, which rank he then held.

On July 17, 1967, a hearing was had by the defendant upon the plaintiff’s application and his request for a disability pension was denied. Ten days later, a rehearing on his application was held which terminated again in a denial of his request. The plaintiff then filed a complaint under the Administrative Review Act (Ill Rev Stats 1967, c 110, § 264 et seq.) in the trial court. A hearing was had and the court affirmed the finding of the defendant. It is from the trial court’s order of affirmance that this appeal is taken.

The plaintiff claims that the court misconstrued the pension statute (Ill Rev Stats 1967, c 108%, § 4-111) and that its holding was without any basis in law.

At the hearing on July 17, 1967, the reports of two orthopedic surgeons were read and entered as part of the minutes of the meeting. At the rehearing on July 27, 1967, they were offered in evidence and made a part of the record.

The treating physician’s report stated that the plaintiff injured his back while working on a stoker in his home on November 10, 1959. He was admitted to the hospital the following day where a myelogram disclosed a ruptured intervertebral disc necessitating a laminectomy at the L-S level. The plaintiff was permitted to return to work on January 18,1960.

Because of recurrent pain another myelogram was taken on January 22,1965, which revealed a ruptured disc at the L-4-5 level which was removed on January 26, 1965. Thereafter the plaintiff had persistent complaints about his left foot which complaints “were undoubtedly a result of the nerve injury in the back.” The doctor’s report disclosed that he frequently advised the patient to avoid heavy lifting and that, in his opinion, “this patient may, in some circumstances as a fireman, be placed in a position dangerous to himself or his colleagues.”

The report of the second orthopedic surgeon stated that he examined the plaintiff on June 30, 1967, and found slight paravertebral muscle spasms in the lumbar area and all motions in the back markedly restricted as well as evidence of the prior surgery. In his opinion the plaintiff was “disabled from heavy unlimited types of activity such as ladder climbing, heavy lifting or pulling and tugging.” It was his feeling that he was totally disabled as far as unlimited fireman-type duties were concerned, but not totally disabled for some sedentary light type of activity.

It is agreed between the parties that the plaintiff, at the present time, is not capable of doing regular fireman’s work but capable of doing some type of lighter work.

The issue in this case is whether or not a fireman, suffering from a disability not incurred in the performance of an act of duty, is entitled to a pension under the provisions of the aforementioned statute where such disability prevents him from discharging unlimited fireman’s duties but does not incapacitate him for other duties in the fire department.

The statute in question provides:

“Any fireman having at least 10 years of creditable service who becomes disabled as a result of any
cause other than the performance of an act of duty, and who is found, upon examination by a competent physician ordered by the Board, to be physically or mentally permanently disabled so as to render necessary his retirement from service in the fire department, shall be granted & disability pension of 50% of his monthly compensation at the date of such retirement.”

There is nothing contained in the evidence or record indicating that plaintiff is unable to perform the duties of Fire Inspector; to the contrary, the reports of the treating physician and examining physician seem to suggest such a type of duty.

Obviously, duty as a Fire Inspector is “. . . service in the fire department.” It is the duty of the defendant to determine whether or not the disability rendered necessary “his retirement from service in the fire department,” just as it is the Board’s obligation to determine whether or not an applicant for membership in the Firemen’s Pension Fund is physically and mentally qualified for acceptance. Gordan v. Board of Trustees of Firemen’s Pension Fund of City of Joliet, 77 Ill App2d 234, 238, 222 NE2d 28 (1966).

The statute is clear in that it provides a pension for a fireman injured other than in the performance of an act of duty when he is physically or mentally permanently disabled so as to render necessary Ms retirement from service in the fire department. In the instant case, the plaintiff’s injury did not necessitate retirement. Both physicians agreed that the plaintiff was capable of performing a limited service. Had the Legislature intended to provide a pension for a fireman able to perform limited duties as a fireman, it could have done so. We have no right to modify the legislative language and our only duty is to follow that direction. Stiles v. Police Pension Fund, Board of Trustees, 281 Ill 636, 642, 118 NE 202 (1917); Giuliano v. Board of Trustees of Firemen’s Pension Fund of City of Elgin, 89 Ill App2d 126, 128, 231 NE2d 257 (1967).

Plaintiff maintains that the defendant has no authority to deny a pension to any fireman who is not qualified “to perform the duties of a fireman” and relies upon sections 4-112 and 4-107(b) as authority. Neither of these sections are relevant to the question at hand.

Section 4—112 authorizes the reinstatement of a fireman already on the disability pension roll, after his recovery, in the same rank or grade which he held at the time of his retirement for disability. The plaintiff was never on a disability pension and this question was not before the defendant.

Section 4-107 (b) designates the qualifications for membership in the Firemen’s Pension Fund. Significantly, the applicant must submit to a medical examination by a Board-selected physician and found to be then physically and mentally fit to perform the duties of a fireman. Having been found physically and mentally able, at that time, the applicant is admitted to coverage under the Act. This section does not relate to any subsequent disability as is present in the case before us.

The defendant had adequate evidence upon which to find that the plaintiff was capable of rendering service in the fire department and, therefore, not entitled to a pension under section 4-111.

Having so decided, it is unnecessary to consider whether or not the command of the fire chief ordering Lieutenant Mulder to duty as a Fire Inspector was properly given by the fire chief, or whether the order should have been given by the Board of Police and Fire Commissioners.

The judgment of the circuit court of Winnebago County is affirmed.

Judgment affirmed.

SEIDENFELD and DAVIS, JJ., concur.