text:
    Frank Dinger and Florence Dinger, Plaintiffs-Appellees, v. Frank O. Rudow, Defendant-Appellant.
    Gen. No. 10,106.
    Third District.
    April 29, 1957.
    Rehearing denied May 27, 1957.
    Released for publication May 27, 1957.

      Hershey & Bliss, of Taylorville (Rolland F. Tip-sword and Richard G. Hershey both of Taylorville, of counsel) for defendant-appellant.
    Stuart J. Traynor & Harold Broverman, of Taylor-ville (Stuart J. Traynor and Harold Broverman, both of Taylorville, of counsel) for plaintiff-appellee.
   JUDGE ROETH

delivered the opinion of the court.

This is an action brought by Frank Dinger and Florence Dinger his wife, against the defendant Frank 0. Rudow, growing out of a collision between the automobile being driven by Frank Dinger in which his wife was riding as a passenger, and an automobile being driven by the defendant. The original complaint consisted of two counts, count 1 on behalf of Frank Dinger to recover for the damage to his car, and count 2 on behalf of Florence Dinger to recover for personal injuries sustained by her. The issues were tried before a jrtry and the jury returned a verdict of $4500 in favor of the plaintiff Florence Dinger but returned no verdict as to the claim of Frank Dinger. Upon announcement of the verdict, Frank Dinger dismissed his suit at his costs and judgment was entered on the verdict in favor of Florence Dinger and against the defendant. The usual post trial motions were thereafter filed and overruled.

The collision in question occurred in Pana, Illinois at the intersection of Fifth Street and State Highway-Si. State Highway 51 is also known as Poplar Street. Fifth Street extends east and west and Poplar Street extends north and south. There are stop signs on Fifth Street for traffic crossing or entering Poplar Street, located approximately 15 feet from the corner. From the intersection south, Poplar Street extends up an incline a distance of 200 feet to a crest and then drops down on the other side of the crest to the south. A car travelling north on Poplar Street is visible from the intersection of Fifth Street and Poplar Street, as it reaches the crest of the hill and then proceeds north over the 200 foot distance to the intersection.

Frank Dinger was driving his automobile in an easterly direction on Fifth Street. Riding with him in the front seat, were his 10 year old niece to his immediate right, and his wife, the plaintiff, next to the niece on the niece’s right. The defendant was driving his automobile in a northerly direction on Poplar Street. The cars collided in the northbound lane of Poplar Street, east of the center line of said street.

The principal facts in dispute are, whether Dinger stopped at the stop sign before proceeding across the intersection and the speed of the Rudow car as it approached the intersection. Dinger, his wife and his niece, all testified that Dinger stopped and that each of them looked both ways and didn’t see the Rudow car before starting across Poplar Street. The defendant and a witness who was in a parking lot on the northwest corner, both testified that Dinger did not stop. As to speed of the defendant’s car, Dinger estimated it at 60 to 65 miles per hour and his wife at 70 to 80 miles per hour. The defendant and the witness on the corner estimated the speed at 20 to 25 miles per hour. Undisputed facts bearing upon the issues are that the defendant’s car laid down skid marks on the pavement for a distance of 32 feet; the Dinger car was travelling about 5 to 10 miles per hour across the intersection; the collision occurred on the east half of Poplar Street. The plaintiff Frank Dinger testified that he first observed the defendant’s car when he was half way across Poplar Street and at that time it was 73 feet from him. Defendant testified that he saw the Dinger car when he was 100 feet from the intersection and at that time the Dinger car was 45 feet west of the intersection.

Defendant contends that the verdict is against the manifest weight of the evidence and that Florence Dinger was guilty of contributory negligence as a matter of law. From the foregoing resumé of the salient testimony in this record, it is apparent to this court that the questions of negligence, proximate cause and contributory negligence were all questions of fact for the jury. A court of review cannot hold the jury’s verdict to be against the manifest weight of the evidence unless an opposite conclusion is clearly evident. De Long v. Whitehead, 11 Ill.App.2d 330, 137 N.E.2d 276; Green v. Keenan, 10 Ill.App.2d 53, 134 N.E.2d 115; Griggas v. Clauson, 6 Ill.App.2d 412, 128 N.E.2d 363.

Defendant cites the oft cited case of Dee v. City of Peru, 343 Ill. 36, 174 N. E. 901, in support of the contention that Florence Dinger was guilty of contributory negligence as a matter of law. It is the contention that she cannot be heard to say that she looked and did not see the defendant’s car. This contention assumes that the defendant’s car was visible when she looked, i.e., before proceeding into the intersection. On the other hand it is a fair inference that at that time, the defendant’s car had not yet reached the crest of the hill and was not then visible. The case of Dee v. City of Peru, supra, has no application to the case at bar.

Defendant contends that the trial court committed error in refusing a continuance when reference to insurance was made on the voir dire examination of jurors. The record does not contain the complete voir dire examination. However, the court supplied the record of what transpired with the following statement:

“THE COURT: The record as I understand it is that on examination of the Juror she was asked whether she had ever had any litigation while in an accident and she said, ‘A small one, taken care of by the insurance company.’ And on further examination the attorney for the Plaintiff said, ‘This accident of yours was a small accident and was taken care of by the insurance company and you reported it to your insurance company and they took care of it?’.”

Objection and motion for continuance by Mr. Hershey.

“THE COURT: I am going to overrule the motion.

I am going to say that the question of insurance has no connection with the present law suit but refers to a matter that had occurred with reference to an accident that a juror had and the motion will be overruled.”

Later in the voir dire examination, another juror was asked:

“Q Were you ever involved in an accident?

A No, but my son was and the insurance took care of that also.”

It is common practice in the trial of personal injury cases to ask a prospective juror if he or she has ever had an accident. The answer to such a question is not within the control of counsel. So, it is likewise quite common for the juror to volunteer the information that, if he or she has been involved in an accident, the matter has been adjusted by an insurance company. Presumably this is done to convey to counsel the information that no litigation ensued. Counsel for plaintiffs did not pursue the repeated question after the objection was made. We cannot see how the repetition of the answer by counsel added anything to the original answer as made. The general rule is that where the record shows a design or purpose on the part of counsel to improperly inform the jury that the defendant is insured or that an insurance company is defending the case and the circumstances tend to show a prejudicial effect upon the jury, the conduct constitutes error. The record in this case as above set out, falls far short of coming within this rule.

Counsel for defendant also contends that the trial court erred in permitting the attending physician to express his opinion on the permanency of plaintiff’s injuries. This contention is based upon the claim that the doctor had not described a specific condition to which the question of permanency could only relate. We note that counsel for defendant have not undertaken to abstract the testimony appearing on pages 131 and 132 of the record. An examination of pages 130 through 134 of the record reveals that the very opposite of what counsel contends is true. There is no merit in this contention.

Finally counsel for defendant contends that the verdict of the jury is invalid because it did not pass upon all the issues of the case. Four forms of verdict were given to the jury (1) finding the issues for Frank Dinger and assessing his damages (2) finding the issues for Florence Dinger and assessing her damages (3) finding defendant not guilty as to the claim of Frank Dinger and (4) finding defendant not guilty as to the claim of Florence Dinger. The jury filled in and signed only form 2 above. Regardless of the correctness or incorrectness of defendant’s claim that the failure of the jury to sign any form with respect to the claim of Frank Dinger amounts to no verdict as to this claim, the defendant is not harmed because immediately upon the coming in of the verdict, counsel for Frank Dinger dismissed his suit at his costs.

We find no error in this record and accordingly the judgment of the Circuit Court of Christian county will be affirmed.

Affirmed.

REYNOLDS, P. J. and CARROLL, J., concur in this opinion.


source: Caselaw Access Project

author: PRESIDING JUSTICE REYNOLDS

license: Public Domain

text:
    Manley E. Staley and Vivian H. Staley, Plaintiffs-Appellants, v. Kendall E. Mears and Arleta F. Mears, Defendants-Appellees.
    Gen. No. 10,100.
    Third District.
    May 20, 1957.
    Released for publication June 5, 1957.

      Scott and Sebo, of Canton, for appellants.
    Arthur D. Young, of Lewistown, for appellees.
   PRESIDING JUSTICE REYNOLDS

delivered the opinion of the court.

The plaintiffs brought suit to restrain the defendants from building a carport which was alleged to be in violation of a restrictive covenant. The defendants filed their answer, and the cause was referred to a Master in Chancery to take the evidence and report his conclusions of law and fact thereon. At the conclusion of the plaintiffs’ evidence before the Master, the defendants moved for a directed verdict. The Master certified the evidence taken, (plaintiffs’ evidence only) to the Circuit Court for a ruling on the motion for a directed verdict. The Circuit Court after hearing arguments on the motion, granted the motion for a directed verdict for the defendants. The plaintiffs then filed their motion to re-commit the cause to the Master in Chancery for further evidence by the plaintiffs. There is nothing in the record to show that the trial court ruled on this motion. A temporary injunction, granted upon the filing of the plaintiffs’ bill was dissolved and the suit was dismissed for want of equity. Prom these rulings, the plaintiffs appeal to this court.

This is a dispute between neighbors over the building of a carport in connection with the defendants’ erection of a new home, adjacent to the home of the plaintiffs. The plaintiffs were the owners of Lot No. 21, in Ell-Van Park Addition to the City of Canton, Illinois. The defendants were the owners of Lot No. 22 in the same addition. The Ell-Van Park Addition is not laid out in conventional pattern, but the lots are bounded by curves and circles, with only a very few of the lots in the addition having straight street-front lines. There is one main street or drive running in a generally easterly and westerly direction through the addition designated on the plat as Sycamore Terrace. The defendants’ lot has a frontage on this street or terrace, which is the southerly side of their Lot No. 22. Running in a northerly direction off of Sycamore Terrace there is a dead end street designated as Pool Court. Pool Court’s westerly line is the easterly line of defendants’ Lot 22 and the easterly line of the plaintiffs’ Lot No. 21. There is a utility easement strip five feet wide, that divides the lots of the plaintiffs and the defendants, the plaintiffs’ lot being north of the defendants’ lot and only separated by the easement utility strip. It is conceded that the overhang of the plaintiffs’ roof line is 16 inches over the utility easement strip.

The defendant in building his home, complied with the restrictive covenant to the south, but built his carport within a few feet of the street line on the Pool Court side. Whether or not the building of the carport within some three feet of the street line of Pool Court is a violation of the restrictive covenant, is the question in this suit. The restrictive covenant in question is in the following language: “No building shall be located on any lot nearer than 25 feet concentric to and normally distant to the front lot line, unless otherwise shown on plat, nor nearer than 3 feet to the side lot line.” If Pool Court is the front of the defendants’ lot line, then the defendants are violating the restrictive covenant. If it is not, then the issue is simple and the defendants are not violating the covenant.

Some interpretation is necessary as to the word “concentric”. Funk and Wagnalls “New Standard Dictionary” defines concentric as meaning having a common center, such as spheres or circles. In order to fit the word into this plat, and to interpret the intention of the planners of the addition, it is necessary to refer to the plat of the Ell-Van Park Addition. There are very few straight lines, the addition having been laid ont with curves, circles and arcs. It is this court’s interpretation of the word “concentric” as used in the restrictive covenant, that since the lot lines adjoining the streets are curved in most instances, the planners meant that no part of any building should be closer than 25 feet from the front lot line of a lot adjoining a curving street.

There were only three witnesses heard. The plaintiff Manley E. Staley, a photographer and E. C. Van Sickle, the civil engineer who laid out and platted the Ell-Van Park Addition. If the planners had made the restriction to be no building within 25 feet of the street line of any lot, this cause would not be before us, since that is language that cannot be in dispute. But the restriction with regard to the 25 foot limit only applies to the front lot line. Defendants’ Lot No. 22 abuts both Sycamore Terrace and Pool Court, but there is nothing in the record and nothing in the cases cited to help this court determine which is the front of the lot. The plat introduced in evidence does not define which is the front of the lot, and there is no evidence as to the interior arrangements of the defendants’ home which would indicate which is regarded as the front of the house. And even if the interior arrangement of the defendants’ home was in evidence it would not be conclusive, since the determining factor is what is the front lot line of Lot No. 22. While it is true, that a corner lot, such as Lot 22 does, in a certain sense, front on both streets, still, in the strict sense of that term, that portion of the lot, only, which is opposite the rear and faces upon the street, is properly designated as the front of such lot. Turney v. Shriver, 269 Ill. 164. In that case, the lot in question was a corner lot, with Wilson Avenue on one side and Magnolia Avenue on the other. There was an alley paralleling Magnolia Avenue, and the court in that case held that the alley line was the back of the lot. Here we have no alley, but the lot being’ in a somewhat pie-wedge shape with a curving corner at the southeast corner of 28.2 feet, a lot line adjoining Pool Court of 85 feet and a lot line adjoining Sycamore Terrace of 105.5 feet. If the streets in the addition are to be used as a guide, the main street seems to be Sycamore Terrace, and it might be logically urged that the lot faces or fronts on the principal street.

In the light of the evidence, this court must hold that the plaintiffs have failed to prove a violation of the restrictive covenant, and that the suit was properly dismissed. In reaching this decision, this court is mindful that our courts have held that restrictive covenants should be construed strictly against the sub-divider and liberally in favor of the builder or owner. Where there is any doubt, the matter must be resolved in favor of natural rights and against restrictions. Hutchinson v. Ulrich, 145 Ill. 336; Ewertsen v. Gerstenberg, 186 Ill. 344; O’Gallagher v. Lockhart, 263 Ill. 489; Postal Telegraph Co. v. Western Union Telegraph Co., 155 Ill. 335; Handzel v. Bassi, 343 Ill. App. 281; Leverich v. Roy, 338 Ill. App. 248. As said in the Leverich v. Roy case, at page 252: “All doubts must be resolved in favor of natural rights, and against restrictions thereon. In this country real estate is an article of commerce, the uses to which it should be devoted are constantly changing as the business of the country increases, and as its new wants are developed; hence it is contrary to the well recognized business policy of the country to tie up real estate where the fee is conveyed, with restrictions and prohibitions as fco its use, and hence, in the construction of deeds containing restrictions and prohibitions as to the use of property by a grantee, all doubts should as a general rule, be resolved in favor of a free use of property, and against restrictions.”

We do not believe that the plaintiffs met the requirements for injunctive relief, by presenting clear and affirmative proof as to violation of the restrictive covenant, and our courts have uniformly held that injunctions should issue only where the right of the plaintiff to such relief appears clearly and affirmatively. Hope v. Hope, 350 Ill. App. 190; Economy Dairy Co. v. Kerner, 303 Ill. App. 259; Vulcan Detinning Co. v. St. Clair, 315 Ill. 40.

As to the motion of the plaintiff to re-commit to the Master in Chancery for further evidence on the part of the plaintiff, the record does not show any ruling on this motion. As a court of review this court cannot review any matter that has not been decided by the lower court. It might well be, from a reading of the motion and the supporting affidavit that the trial court, in its discretion decided that the motion presented nothing new to be heard. At any rate there is nothing before us on that question and this court will not pass on it.

It is the judgment of this court that the Circuit Court should be affirmed.

Judgment affirmed.

JUDGE NOETH took no part in the consideration of this case.


text:
    Fred Van Bebber and Stella Van Bebber, Plaintiffs-Appellants, v. Village of Scottville, Defendant-Appellee.
    Gen. No. 10,117.
    Third District.
    May 20, 1957.
    Released for publication June 5, 1957.

      Oblinger and Oblinger, of Springfield, Fred N. Herr, of Waverly (Fred N. Herr, of Waverly, and Walter L. Oblinger, of Springfield, of counsel) for appellants.
    Hemphill and Kelsey, of Carlinville, for appellee.
   PRESIDING JUSTICE REYNOLDS

delivered the opinion of the court.

Plaintiffs Fred Van Bebber and Stella Van Bebber, husband and wife, filed their complaint in the County court of Macoupin county, Illinois, under the provisions of Chapter 24, Article 7, Section 42, Illinois Revised Statutes (1955), to disconnect certain farm property owned by them in joint tenancy, from the village of Scottville, Illinois. All of the land sought to be disconnected lies within the village limits of Scottville, and consists of six tracts, as follows: One tract of 33 acres, bounded on the east by the easterly village limits of Scottville; one tract of 27 acres, lying south of the 33 acre tract, bounded on the east by the easterly village limit of • Scottville; one tract of 10.75 acres, bounded on the east by the 27 acre tract, and on the west by an unnamed street of the village of Scottville; one tract of 1.75 acres, bounded on the north and east by a portion of the 10.75 acre tract, and on the west by the unnamed street of the village; one tract of 2.50 acres, bounded on the south and east by the 10.75 acre tract, on the west by the unnamed street of the village, and on the north by another tract of .49 acres; one tract of .49 acres, bounded on the south by the 2.50 acre tract, on the east by the 10.75 acre tract, on the north by Laurel Street of the village, and on the west by the unnamed street of the village. In other words, the 33 acre tract and the 27 acre tract were bounded on the east by the easterly village limit and the other four tracts, the 10.75 acre tract, the 1.75 acre tract, the 2.50 acre tract, and the .49 acre tract, were bounded on the west by the unnamed street of the village, but all six tracts were contiguous to each other, could have been identified and shown as one tract or area, with one continuing line encircling the whole tract, with only one line of said whole tract bordering on a street of the village. The area in question or the six tracts, had not been platted into lots or blocks, and the testimony showed that, the six tracts were owned by the plaintiffs in joint tenancy, four of them, namely the 33 acre tract, the 27 acre tract, the 10.75 acre tract, and the 1.75 acre tract having been acquired in the same transaction by Stella Van Bebber, from her father’s estate, and later title was vested in her and her husband in joint tenancy and the other two tracts, the 2.50 acre tract and the .49 acre tract were acquired in 1945 from the son Ward Van Bebber and these two tracts are held in joint tenancy by the plaintiffs. The whole tract is operated or used as one farming operation by the plaintiffs and their son Ward. There are two houses on the land, one on the 1.75 acre tract, where the plaintiffs live, and one on the 2.50 acre tract, where a brother and sister of Stella Van Bebber live. The unnamed street to the west is an improved street, with two street lights on the street near the two homes mentioned. The testimony showed that the street and the lights are maintained by the village, although there is some testimony that the owners donated certain labor and materials for the construction of the street when bruit, and that there is an annual picnic held for the benefit of street maintenance. The amount of taxes to the village amounts to 18 cents per acre per year, or a total for the whole area of $12.49 per year.

The statute in question provides as follows:—

“The owner or owners of record of any area of land consisting of one or more tracts, lying within the corporate limits of any municipality, which (1) is not contiguous in whole or in part to any other municipality; (2) contains twenty or more acres; (3) is not sub-divided into municipal lots and blocks; (4) is located on the border of the municipality; and (5) which, if disconnected, will not result in the isolation of any part of the municipality from the remainder of the municipality, may have the area disconnected as follows :

“The owner or owners of record of any such area of land shall file a petition in the county or circuit Court of the county where the land is situated, alleging facts in support of the disconnection. The municipality from which disconnection is sought shall be made a defendant, and it, or any taxpayer residing in that municipality, may appear and defend against the petition. If the court finds that the allegations of the petition are true and that the area of land is entitled to disconnection it shall order the specified land disconnected from the designated municipality.” Illinois Revised Statutes, (1955), Chapter 24, Article 7, Section 42.

Five requirements are set up by the statute and before a disconnection can be had, these requirements must be met. Of these five essential requirements, Nos. 1, 2, 3 and 5 are not in dispute. This would leave No. 4 as the only point in dispute. That requirement is that the area of land be located on the border of the municipality. Two of the tracts, the 33 acre tract, and the 27 acre tract, being on the easterly corporate limits of the village, definitely meet this requirement. This leaves only one question to be decided. Are the six tracts to be considered as one area of land, as defined by the statute, or are they to be treated and determined as six separate tracts. If they are to be treated as separate tracts, 60 acres of the land in question meet all five requirements and must be detached. If the six tracts are to be considered as one area, the whole 75.49 acres could be considered as meeting the five requirements. The decision and judgment of the trial court does not state upon what ground the complaint and petition was denied, simply holding that the allegations of the petition were not true or proven and that the area of land described is not entitled to disconnection. From the decision and judgment denying the petition, the plaintiffs appeal to this court.

The issue here is whether or not these lands sought to be disconnected meet the requirements of the statute governing. If the lands do meet those requirements, there is no discretion lodged in the trial court but the petition must be granted. On the other hand, if the lands fail to meet any one of the requirements then the petition must be denied. Here the only point that can be raised is that the lands in question are not located on the border of the municipality. Although there may have been collateral questions raised in the trial, there is no estoppel, and can be no estoppel to defeat the operation of the statute, if such a petition is filed, and due proof made. The fact that the petitioners or the owners of the lands may have received benefits from the municipality, such as lights, access to streets or roads, and other city services or conveniences, while such lands were within the limits of the municipality, regardless of the length of time such lands were within such municipality, is not a defense or bar to disconnection. City of Geneva v. People, 98 Ill. App. 315. When that case was decided in 1901, the act of disconnecting land from a municipality was by action of the city council. While the law has been changed and now the matter of disconnection is by either the County or Circuit Court of the county where the land is situated, the language of that case is still applicable. The court in that case on page 317 said: “The provision of the statute requiring a city council to disconnect territory situated as that described in the petition in this case, when the matter is properly presented, is mandatory. In such case no discretion is vested in the council, its only function being to see to it that the territory is located as the statute prescribes and the petition signed as the statute directs. Young v. Carey, 184 Ill. 613.” And in this case, although the procedure is somewhat different, the duty upon the court is the same duty imposed formerly on the city council, namely, that if requirements for disconnection of territory from a municipality are met, the court must order it disconnected.

In this case there are six tracts. Two of them are located on the border of the village of Scottville. Pour of them are not so located on the border of the village, but are contiguous to the two that are so located, so that the area sought to be disconnected is one contiguous area of 75.49 acres. The statute uses the language “any area of land consisting of one or more tracts”. “Area” has been defined as meaning several tracts, which may be joined together to make up the acreage required, namely 20 acres. Ill. Central R. R. Co. v. Village of South Pekin, 374 Ill. 431. In that case the ownership of the several tracts was not identical, the railroad owning some of the tracts and other tracts being owned by trustees under the will of a decedent. The court in that case held that different ownership did not prevent the granting of the petition. The court in passing on this, said: “It will be noted the statute refers to the ownership of an ‘area’. The legislature was dealing with ‘area’ as a unit and when reference is made to the ownership of that ‘area’ it includes all persons who owned the ‘area’ whether it consisted of one tract or more than one tract. If the legislature had intended that ‘area’ was to be limited by ownership and would be subject to disconnection only when the ownership was in common, as to the parts included within the ‘area’, it would have so provided. To hold that the words ‘owner or owners of any area’ are to be limited in their application to include only those tracts with a common ownership is to read into the statute a meaning not included within the meaning of the language employed by the legislature.”

And the court in the same case, in defining “area” said: “The word ‘area’ is ordinarily used in referring to a particular extent of surface. Standing alone the word ‘area’ implies nothing as to size. It may be of large or small extent. The words used in connection with it in section 1 place a minimum limitation as to size. To be an ‘area’ within the meaning of. the act it must contain at least 20 acres. The word ‘tract’ as used in the statute refers to a piece of land capable of being described with such definiteness that its location may be established and boundaries definitely ascertained. The statute provides the ‘area’ may consist of ‘one or more tracts.’ If one ‘tract’ contained 20 acres or more, it would be an ‘area’ within the meaning of the statute. Since the statute permits the joining of tracts to make the ‘area’ several tracts may be included. The total acreage of such tracts may equal or exceed the minimum acreage requirement.”

This language is clear and easily understood. In reading it, we come hack to the one requirement that seems to he in dispute, namely that the land in question is or is not located on the border of the municipality. If the language of our Supreme Court in the Ill. Central R. R. Co. v. Village of South Pekin case is to be applied to this case, then the “area” sought to be disconnected does comply with the requirement. If the several tracts, being contiguous, constitute an area that is located in part on the border of the municipality, then the fact that in the trial, or by maps or plats, the several tracts are shown or identified separately, does not alter the fact that this is one “area” and as one area it is located on the border of the village of Scottville. To hold otherwise would be to distort the meaning of the statute beyond anything the legislature intended. Our courts have held that the statute as to disconnection of lands from municipalities should be construed liberally. In the case of Woodward Governor Co. v. City of Loves Park, 335 Ill. App. 528, the court there said: “we are of the opinion that section 7 — 42 of the Cities and Villages Act of 1941 should be construed liberally; that it was enacted for the purpose of granting relief to taxpayers.” And as previously noted the courts have very little, if any, discretion in passing upon such a petition. As said in the case of Independent Amusements, Inc. v. Village of Milan, 348 Ill. App. 258, at page 265: — “The legislature has fixed the conditions and the only question the courts are required to consider is whether the owner has presented a case that brings the property involved within the statute.”

The only case relied upon by the defendant village of Scottville is that of In re Disconnection of Certain Territory of Mt. Prospect, 341 Ill. App. 272. In that case Parcel 1 consisting of 20 acres was located on the border of the Village of Mt. Prospect. Parcel 2, consisting of 46 acres was adjacent to Parcel 1 on the south and had its northwest corner at the village border. Only this corner touched the border. The court in that case seems to base its decision on this fact, and used this language in reaching its decision: — “If petitioner’s position is sound, then one small corner of a parcel touching on the limits of a village could be said to be located on the border; or to put it another way, if the point of a triangular piece of land abutted on the village limits, the whole piece according to petitioner’s argument, would be ‘located on the border’. By attaching the 46-acre tract involved in this case to the 20-acre tract, they make a little tail wag a big dog and ask the court to hold that thereby Parcel 2 is located on the border. This is not a reasonable construction of the law. Because the dog’s tail rests on the border does not mean that the dog is located on the border.”

In that case the ownership of Parcels 1 and 2 was identical. Yet the court in that case further said: “The further argument is made that if the order is allowed as to Parcel 1, then Parcel 2 automatically would be on the border. It is our opinion that it still would not be ‘located on the border’ within any reasonable interpretation of the law.” We cannot agree with the reasoning or decision in that case. It is completely contrary to the law as laid down in the case of Ill. Central R. R. Co. v. Village of South Pekin, 374 Ill. 431. That case held that since the statute permits the joining of tracts to make the “area” several tracts may be included. Obviously, where several tracts are included to make up an “area” as defined in the statute, some of those tracts could not be located on the border. Yet the court in the Mt. Prospect case, would not permit this to be done. Again, this reasoning and decision in the Mt. Prospect case is directly in conflict with the law as laid down in the Ill. Central R. R. Co. v. Village of South Pekin case, where that court said: “The legislature was dealing with ‘area’ as a unit and when reference is made to the ownership of that ‘area’ it includes all persons who owned the ‘area’ whether it consisted of one tract or more than one tract.” To change the language of that case to fit this case, or any other, it might just as logically be said that the legislature was dealing with “area” as a unit and when reference is made to an “area” it included all tracts within that area.

In the case here, using the definition of an “area” as laid down in the Ill. Central R. R. Co. v. Village of South Pekin case, tracts Nos. 1, 2, 3, 4, 5 and 6 are all within the area sought to be disconnected, and since one part of the area borders on the village border, the whole area must be held to come within and comply with the requirement of the statute that the land sought to be disconnected must be located on the border of the municipality. To hold otherwise would be to defeat the very purpose of the statute. All the other requirements being met, this court must hold that the allegations of the petition were proven and that the area of land sought to be disconnected, is entitled to disconnection from the village of Scottville.

The judgment of the County Court is reversed and the cause remanded with directions to proceed in accordance with views expressed herein.

Eeversed and remanded with directions.


author: JUDGE CARROLL

text:
    Robert L. Lorenson et al., Plaintiffs, v. County Board of School Trustees of Piatt County, Illinois, et al., Defendants; Robert L. Lorenson, et al., Plaintiffs-Appellees, and County Board of School Trustees of Piatt County and Atwood Community Unit School District Number 39, of Piatt, Champaign, Douglas and Moultrie Counties, Defendants-Appellees, v. Lovington Community Unit School District Number 303, in Moultrie County, Defendant-Appellant.
    Gen. No. 10,102.
    Third District.
    May 20, 1957.
    Released for publication June 5, 1957.

      John R. Morrow, of Springfield and Francis W. Purvis, of Sullivan, for appellant.

      Robert P. Shonkwiler, of Monticello, for appellees.
   JUDGE CARROLL

delivered the opinion of the court.

Pursuant to the provisions of Art. 4B of the School Code, (Par. 4B — 1 et seq., Art. 4B, Chap. 122, Ill. Rev. Stats., 1955) all of the legal voters in an area known as the White School which is a part of Lovington Community Unit School District No. 303, in Moultrie County, (hereinafter referred to as Lovington District), petitioned the County Board of School Trustees of Piatt County for detachment of said area from Lovington District and the annexation thereof to Atwood Community Unit School District No. 39, (hereinafter referred to as Atwood District).

A hearing on the petition resulted in an order denying the same. Thereafter the petitioners brought this action under the Administrative Review Act for a review of the decision of the Board of School Trustees. Joined as defendants in addition to the Board of Trustees were the Lovington and Atwood districts. Upon a hearing the Circuit Court of Piatt county reversed the decision of the Board of Trustees as being contrary to the manifest weight of the evidence and ordered the territory described in the petition detached from the Lovington district and annexed to the Atwood district.

The Lovington district, defendant below, brings this appeal contending that the decision of the County Board of School Trustees found ample support in the evidence and that the Circuit Court erred in determining otherwise. Determination as to whether there is merit in defendant’s contention, entails examination of the evidence in the record as made before the board.

The area in controversy, comprising parts of five sections of land, is known as the White School area, which is a part of the Lovington district. It is served by a one-room school, in which six grades are taught by one teacher and the attendance is 23 pupils. The one child of school age residing in the area attends this school. There is also both a grade and high school in the Lovington district which is located at Lovington, some 3 or 4 miles from the White School area. The facilities of the Lovington Grade School appear to be open to the children of the White School area. The Hammond Grade School in the Atwood district is about the same distance from the White School as is the Lovington Grade School. Due to the fact that the school building at Hammond was destroyed by fire, classes are conducted in a gymnasium which has been divided into rooms by dropping tarpaulins from the ceiling. The Hammond elementary enrollment is 156. A bond issue for a new Hammond school has been approved but the building has not been constructed. The estimated value of the Atwood district is $19,552,387; that of the Lovington district is $13,959.578 and that of the land described in the petition is $377,820. The school taxes lost to Lovington by transfer of the territory in question is approximately $4,350 and the gain in taxes by Atwood is about $4,860. In view of these figures, it cannot be said that there is any serious question of loss or gain in school revenue involved.

The record further indicates that both of the contesting districts are fully recognized by the office of the Superintendent of Public Instruction and are financially able to maintain good schools.

The number of witnesses testifying for and against the petition at the hearing were almost equal. The principal reason given by those favoring the granting of the petition is that all of the petitioners are part of the Hammond community, doing their trading and banking in Hammond. Other reasons advanced were that they were better acquainted in Hammond; that if their children attend the Hammond school the parents could participate in P. T. A.; that the Hammond School was larger and offered better facilities; that when the new Hammond School is bnilt, a new “ag” department will be added; that this new building program will make a gymnasium available for the physical education program and that it will also make possible a number of other programs. Typical of the testimony of these witnesses heard by the board is that given by Robert Lorenson, whose 10 year old son is the only child of school age in the petitioning area. When asked if he believed the transfer of the area from Lovington to the Atwood district would be in the best interests of his son and other children of the area, he replied in part as follows:

“I believe it is because I do business in Hammond and I associate more up there than at Lovington and I believe the Hammond school offers better facilities than Lovington. It is a bigger school and there’s no trouble up there whatsoever. I’m acquainted with lots of people there and I like the way they handle things. They are going to have better ‘ag’ facilities there.”

The principal complaint made against the Lovington district by the witnesses is that the White School is small; that it does not have a physical education teacher; that it has no recreational program and that because of the small number of pupils in classes there is little mental competition among them. However, none of the witnesses furnished the board with any facts tending to prove that the educational program of the White School was in any manner deficient.

The superintendent of the Lovington district testified for the defendant that the grade school at Loving-ton is accredited with the State Department of Education; that the Lorenson boy could go to this school if he so desired; that if the White School were closed, there would be facilities for all of its pupils at Loving-ton. A number of other witnesses also testified that the facilities of the Lovington School are available to the Lorenson boy and if he chose to attend that school transportation would be furnished him.

The superintendent of the Lovington district testified that the White School is a brick building; that it is a one-class room, one-teacher school; that there is a cafeteria space and restrooms in the basement; that it has automatic gas heat and janitor service; that the teacher is a graduate of Texas-Christian University and is working toward her master’s degree. This witness further testified that he visits the White School on an average of once a week; that there is no physical education program at the White School except that conducted by the teacher; and that going outside to play was about its only recreation program.

Upon consideration of the evidence introduced at the hearing, the board of trustees found that the granting of the petition would not be for the best interests of the two school districts, nor for the best interests of the students insofar as their educational welfare is concerned and entered an order denying the said petition.

In dealing with defendant’s contention that the trial court erred in holding the board’s decision to be contrary to the manifest weight of the evidence, reference to the function of the board of trustees in matters involving detachment of territory from one school district and the annexation thereof to another district becomes pertinent.

The power to create school districts, to alter the boundaries thereof or to abolish the same is lodged in the legislature. People v. Deatherage, 401 Ill. 25; People ex rel. McLain v. Gardner, 408 Ill. 228.

This legislative authority to change the boundaries of existing districts has been delegated to the County Board of School Trustees. Art. 4B of the School Code, (Pars. 4B — 1 to 4B — 26, Chap. 122, Ill. Rev. Stats., 1955). In exercising this authority such board acts as the agent of the legislature and in so doing discharges a legislative function. People v. Deatherage, supra; Community Unit School District v. County Board of School Trustees, 11 Ill.App.2d 561. Sections 4B — 1 and 4B — 2 of the School Code provide for the initiating of proceedings for the detachment of territory from and the annexation thereof to an existing district by petition to the County Board of School Trustees. It is provided in Section 4B — 4 that upon the filing of such a petition the board shall give notice of and conduct a public hearing thereon. The above Section 4B — 4 also contains the following:

“The county board of school trustees shall hear evidence as to the school needs and conditions of the territory in the area within and adjacent thereto and as to the ability of the districts affected to meet the standards of recognition as prescribed by the Superintendent of Public Instruction, and shall take into consideration the division of funds and assets which will result from the change of boundaries and shall determine whether it is to the best interests of the schools of the area and the educational welfare of the puuils that such change in boundaries be granted, ...”

In thus specifying the type of evidence that shall be heard and considered by the board on the hearing of the petition, the legislature has given the School Trustees a standard under which their administrative discretion may be nroperly exercised. School District No. 79 v. School Trustees, 4 Ill.2d 533.

Where, as in this case the record of the hearing indicates full compliance by the board with the requirement of the School Code that certain evidence be heard, it becomes obvious that the personal desires or convenience of the petitioners must not be regarded as controlling to the exclusion of all other material factors. The legislature has seen fit to enjoin upon the board the duty of ascertaining before it acts the effect of its decision not only upon the. particular territory described in the petition but also upon the schools of the surrounding area. As was said by the court in Trico Community v. County Board, 8 Ill.App.2d 494:

“The welfare of the affected districts and their pupils as a whole must control rather than the wishes of a few, and such petitions granted only where the benefit derived by the annexing and affected areas clearly outweighs the detriment resulting to the losing district and the surrounding community as a whole. To this end, therefore, the Courts, upon administrative review, have a duty to consider the record to see if the findings and decision of the administrative agency are supported by the evidence.”

So far as the educational welfare of pupils who now or in the future reside in the territory is concerned, the evidence shows that their parents may, if they choose, send them to the school at Lovington. If the Lovington School is seriously deficient as an educational institution, proof of the fact was not offered on the hearing. The evidence shows the facilities of a larger school at Lovington is presently available to pupils of the White School. Since the school at Loving-ton apparently meets approved educational standards, there would appear to be little basis for the argument that the best interests of the children residing in the disputed territory requires transfer of such area to the Atwood district. Assuming, as the record justifies us in doing, that adequate facilities are available to the children of the White School area at a school within the Lovington district a decision by the Trustees to transfer such area to the Atwood district would appear to be arbitrary and without foundation. While it is contended by -petitioners that their reason for desiring annexation to the Atwood district is the fact that the latter is in a position to furnish better school facilities, the record indicates that the basis upon which transfer of the "White School area is sought is the personal desires and convenience of the residents of the petitioning territory.

The burden of determining the several questions which were occasioned by the filing of the petition in this case, rested upon the County Board of School Trustees. In making such determination, the board was required to give due consideration to the standards under which its discretion may be intelligently exercised. The record here indicates compliance with such legislative requirement. Such being the case, the decision of the board should not be set aside upon administrative review unless manifestly against the weight of the evidence. A court is not privileged to substitute its judgment for that of an administrative agency if there be sufficient evidence in the record to support its findings. Smith v. Board of Education, 405 Ill. 143; Community Unit District v. County Board of School Trustees of Sangamon County, 9 Ill.App.2d 116.

Admittedly, the board of trustees was in a far better position than is this court to pass upon the several factors involved in this proceeding. They had the benefit of personally observing the witnesses and they could also draw upon their knowledge of the local situation as an aid in making their determination.

After careful consideration of this entire record, we are convinced that the decision of the County Board of School Trustees was not against the manifest weight of the evidence and that in so holding, the trial court erred. Accordingly, the judgment of the Circuit Court of Piatt county is reversed.

Reversed.


author: JUSTICE CROW.

text:
    In Matter of Gus Rothermel, Alleged to be a Mentally Deficient Person, Appellant.
    Gen. No. 11,018.
    Second District.
    May 13, 1957.
    Released for publication May 31, 1957.
    Thomas L. Clinton, for appellant; Hon. Frank W. Curran, State’s Attorney, for appellee.
   Opinion by

JUSTICE CROW.

Not to be published in full.


author: JUDGE BURKE

text:
    Helen Tesar, Appellee, v. Frank Tesar, Appellant.
    Gen. No. 47,133.
    First District, First Division.
    May 10, 1957.
    Released for publication June 10, 1957.
    Theodore F. Lownik and Herman R. Tuvins, of Chicago (Herman R. Tavins, of Chicago, of counsel) for appellant.
    Lawrence C. Boyle, of Chicago, for appellee.
   JUDGE BURKE

delivered the opinion of the court.

Helen Tesar and Frank Tesar were married at Chicago on September 30, 1939. Three children were born to them, namely, Frank Joseph, Ronald Spencer and Kenneth Miles. On January 6, 1956, the wife filed a complaint for divorce and other relief, charging that the defendant was guilty of extreme and repeated cruelty on December 16, 1955, and December 30, 1955.

In an answer the defendant denied the charges of cruelty. Following a trial the chancellor entered a decree finding defendant guilty of extreme and repeated cruelty toward the plaintiff without cause or provocation on December 16, 1955, and December 30, 1955, as charged in the complaint, and that plaintiff is a proper person to have the care and custody of the children. The decree dissolved the bonds of matrimony, awarded the care and custody of the children to plaintiff, awarded to plaintiff sole possession and occupancy of the matrimonial domicile of the parties for the use of plaintiff and the children, retained jurisdiction for the purpose of determining permanent alimony, child support, costs, attorney’s fees, accrued household bills and the equitable distribution of the realty and personalty owned by the defendant “and/or with plaintiff including savings and deposits in the name of defendant” and directed defendant to pay to plaintiff’s attorney the additional sum of $300.

Plaintiff testified that they lived in an apartment of a two-flat building at 8957 South Carpenter Street, Chicago, owned by them “jointly”; that on December 16, 1955, in their apartment the defendant struck her on the head and on December 30, 1955, in their apartment, he awakened the children at 5:00 A. M. and “took a poke” at her that caused her skin to peel; and that he struck her on the head. The only witness called by the plaintiff to corroborate her testimony was Euby Mack, who testified that she is a tenant of the parties, that she resides “in the top flat” and they reside in the “basement flat.” The attention of this witness being called to the date of December 30, 1955, she said that “something awakened us early in the morning, and there was a commotion downstairs”; that the noise awakened her husband and herself; and that in a conversation with the plaintiff that day or the following day the plaintiff told the witness that defendant had struck her. To the question, “Did she tell you where he struck her?” the witness answered, “I believe he knocked her out or something.” To the question, “Did you see a mark on her temple?” the witness answered, “Yes.” Defendant’s attorney had withdrawn from the case and he was not represented. He did not testify.

The complaint charges and the decree found that the defendant on December 16, 1955, did forcibly kick the plaintiff on her body and right thigh. The testimony of plaintiff was that on December 16, 1955, the defendant struck her on the head. There was no corroboration of plaintiff’s testimony that defendant struck her on the head on December 16, 1955. The second act of cruelty charged in the complaint is that on December 30, 1955, the defendant struck plaintiff with his clenched fist on her left temple, knocking her against a table and to the floor, and pummeled her about the chest and body with great force and violence. Her testimony in support of this charge was that the defendant awakened the children at 5:00 A. M. and “took a poke” at the plaintiff that caused her skin to peel. The only corroborating evidence is that of Ruby Mack, who testified that on December 30, 1955, she heard a commotion and that on either the same day or the next day she saw a mark on plaintiff and that she told the witness that defendant had struck her. We do not think that plaintiff proved her charge of extreme and repeated cruelty. Slight acts of violence by either spouse are not extreme cruelty within the statute authorizing divorce on such grounds. Amberson v. Amberson, 349 Ill. 249; Aurand v. Aurand, 157 Ill. 321; Coolidge v. Coolidge, 4 Ill.App.2d 205.

There was no attempt to corroborate the alleged first act of cruelty. We have held that a divorce will not be granted upon uncorroborated testimony as to alleged acts of cruelty. Coolidge v. Coolidge, 4 Ill.App.2d 205, 216. In Jackson v. Jackson, 294 Ill. App. 552, the chancellor’s finding that the husband was guilty of cruelty was reversed because there was corroboration only as to one of the charges. See also Whitlock v. Whitlock, 268 Ill. 218. The plaintiff failed to sustain her charges of extreme and repeated cruelty and the court erred in entering a decree dissolving the marriage.

The case was submitted and taken by the court on March 4,1957. The death of the plaintiff on March 25, 1957, was suggested of record. In Danforth v. Danforth, 111 Ill. 236, the court said (243):

“On the reversal of a decree of divorce, the parties will be placed in the position they occupied before the decree was entered, and if one of them has died between the date of the decree of divorce and its reversal, the survivor procuring the reversal will be entitled to all rights of succession or dower, and the like, in the estate of the other, the same as if no divorce had ever been had; but in such case the court need not ordinarily remand the case, as no other decree of divorce can ever be had.”

The Danforth case is authority for entering the judgment in this court nunc pro tunc prior to the date of the death of the plaintiff. Therefore this opinion will be entered nunc pro tunc as of March 8, 1957.

For the reasons stated the decree of the Superior Court of Cook County is reversed and the cause is remanded with directions to dismiss the complaint for want of equity.

Decree reversed and cause remanded with directions.

NIEMEYER, P. J. and FRIEND, J., concur.


author: PRESIDING JUSTICE SCHEINEMAN

text:
    Roscoe Howard, Plaintiff-Appellee, v. Gulf, Mobile & Ohio Railroad Company, Defendant-Appellant.
    Term No. 57-F-6.
    Fourth District.
    May 15, 1957.
    Released for publication June 4, 1957.

      Oehmke, Dunham & Boman, of East St. Louis, and Gillespie, Burke & Gillespie, of Springfield (¥m. C. Dunham, and Thomas Keefe, of East St. Louis, Louis F. Gillespie, and George B. Gillespie, of Springfield, of counsel) for defendant-appellant.
    William C. Wines, and Graham & McElligott, all of Chicago, and Baker, Kagy & Wagner, of East St. Louis (William C. Wines, Errett 0. Graham, and John A. McElligott, of Chicago, and Bernard H. Bertrand, of East St. Louis, of counsel) for plaintiff-appellee.
   PRESIDING JUSTICE SCHEINEMAN

delivered the opinion of the court.

Plaintiff Roscoe Howard was injured during the course of his employment as fireman by the defendant railroad, and he filed this suit under the Federal Employers Liability Act. He obtained judgment on a verdict of $125,000, and the post-trial motions of defendant were overruled. On this appeal the defendant concedes that the evidence adequately disclosed negligence on its part, but asserts there are other errors requiring reversal.

The accident in question occurred at night in an unlighted area. The engine, on which plaintiff was the fireman, was backing, pushing a caboose around a long curve, and this car obstructed the light on the rear of the tender so that there was no illumination of the track ahead. A switchman with a hand lantern for signalling was on the lead platform of the caboose, on the engineer’s side. The engineer was on the inner side of the curve, where he had a view ahead so far as visibility permitted. The fireman at his post was on the convex side of the curve where he could neither see the switchman nor the terrain ahead. The train came upon some loaded gondolas, which the lookout did not see in time (he said he was looking for box cars), he jumped to safety, giving no signal to the engineer, a collision ensued, and plaintiff was thrown and injured.

The plaintiff was 31 years of age at the time of his injury and 32 at the time of the trial. An actuary testifying as a witness for the plaintiff gave the life expectancy based upon tables and explained the method of computing the present value of future earnings by the use of various rates of interest. He also qualified to testify as to work expectancy, based upon statistics published by the Railroad Retirement Board, which would include the factor of possible incapacity and other causes which might terminate or diminish a railroad employee’s career. This latter testimony was excluded pursuant to an objection made by the defendant. Complaint is made in this court that the testimony of the actuary was based upon life expectancy with no evidence of work expectancy, but this alleged error cannot be considered here, since the ruling which excluded this evidence was obtained by the defendant on its own objection.

The defendant cites the case of Avance v. Thompson, 387 Ill. 77; also Allendorf v. Elgin, J. & E. Ry. Co., 8 Ill.2d 164, concerning the possibility of misleading the jury in the use of life expectancy statistics. The defendant tendered no instruction pertaining to their use, but the plaintiff did tender, and the court gave the following instruction which, in our opinion, meets the requirements outlined hy the cases cited.

“The court instructs the jury that any evidence introduced of life expectancy of a person of 32 years of age is only an estimate and is not conclusive, and that if the jury considers such evidence and testimony, they should do so in the light of the jury’s general knowledge and good judgment of what plaintiff’s life expectancy would he, considering that some persons may live beyond the age of expectancy and that some persons may not live to reach the age of expectancy; that some persons may work all the years of their lives and that other persons may not so work; that the earnings of some persons may not remain stationary, but may reasonably he expected to increase in the future or may reasonably be expected to diminish in the future. The expectancy of life should not he used as a factor hy multiplying the years of expectancy hy the annual earnings.”

Three points raised hy the defense require a summary of the medical evidence. It is too voluminous and complicated to permit full detail. An orthopedic surgeon and a neurological surgeon testified for plaintiff. A variety of specialists, seven in all, appeared on the defense.

For the plaintiff: The anterior curve of the cervical spine is reversed. Limited motion of head and neck. Torticollis (wry neck) tends to tilt his head to the right and twist his chin to the left. Paralysis of left arm and some of left leg. Atrophy of these limbs caused by nonuse. Spasm of the muscles which control head and neck. Pain in movement has produced nervousness called functional overlay, or anxiety neurosis, which means fear of pain, causes him to limit his movements to less than his physical condition would permit;’ also results in spasmodic shaking or tremor of the head when unsupported. Anatomical cause is not known, but several possibilities are suggested which might be improved by surgery. In absence of surgery, present condition is permanént. Surgery recommended because it might bring improvement, possibly substantial, but there is no means of knowing except by trying, and patient refused.

For defendant: Various examinations, including X-rays and other tests, failed to disclose damage to bone structure. For ten months he was under examination and treatment by an able staff. Several times he was placed in traction for days or weeks. Also tried wearing a cast that held his head and neck rigid. Also was supplied with a Thomas collar. At times he appeared' to improve, but as soon as he tried to exert himself, the symptoms returned. Symptoms indicate damage to muscle and soft tissue, but under the treatment given, this should have cleared up. Nothing said about surgery. The anxiety neurosis is recognized. It is not malingering, the patient wants to get well and cooperates in suggested treatment.

At present, the patient lies in bed traction at night, and by day wears a leather collar with steel plates against chest and back to support the head. Removal causes tremor and muscle spasm and swelling. The three points made by the defense in connection with the foregoing are as follows:

First. It is said there is no evidence of permanent injury, therefore the use of expectancy tables was error. With this we cannot agree. The orthopedist testified that the present conditions are permanent. He had recommended a serious operation, on the possibility that some pathology might be found that could be corrected. He thought it worth while to try, in the hope that plaintiff’s pain and discomfort might be alleviated, but he was merely expressing a hope rather than an opinion. Cross-examined on this, he declined • to conjecture on the subject. He was corroborated by tbe neuro-surgeon. We find tbe evidence of permanent disability is entirely adequate.

Second. It is argued that plaintiff has refused to submit to an operation to prevent his being cured prior to trial. Perhaps, in some cases, there may be a duty to submit to surgery to minimize damages, such as where there is a known disability that readily yields to a comparatively simple technique, according to medical experience. The general rule is that an injured person is under no obligation to undergo a serious operation to minimize the liability of a tortfeasor. See Annotation, 11 A. L. R. 230. Since the proposed surgery in this case is serious, not minor, besides being completely uncertain as to results, the plaintiff had no obligation to submit thereto.

Third. It is contended that the court erred in permitting the plaintiff, over objection, to have his collar removed to demonstrate his affliction. It is said that, upon removal, the patient’s head shook and he groaned and made sounds of pain.

The Second Appellate District has taken the position that a plaintiff has a right to exhibit his injury, and that it is reversible error to prohibit it. Stegall v. Carlson, 6 Ill.App.2d 388; Villegas v. Kercher, 11 Ill.App.2d 282. This court has not gone to that extent. Whether it be called real evidence, or demonstrative, in our opinion the rule is the same: it is primarily in the discretion of the trial judge whether to permit the exhibition. The possibility that the demonstration may be unpleasant or gruesome is not determinative, but should be considered and weighed against the possible usefulness to the jury. Smith v. Ohio Oil Co., 10 Ill.App.2d 67.

In this case there was involved a mental problem which, to a layman, might mean that the plaintiff could overcome his illness, or fancied illness, if he but made up his mind to it. He was in court wearing a heavy collar, which would look uncomfortable, yet there was no broken back, or fractured vertebra in evidence. We are of the opinion that, under the circumstances, the trial judge could properly permit the jury to have their own view of his ailment, the better to understand what would happen, and whether it might be real or sham. It was later in the trial that the defense witnesses testified there was no malingering. Moreover, the demonstration would properly clarify what the doctor meant when he said the patient “likes his collar, he has confidence in it.” Accordingly, this court declines to rule that there was an abuse of discretion by the trial court.

Other objections concern instructions: it is contended that the instruction on the subject of damages improperly assumed that the plaintiff’s injuries were permanent. The instruction complained of is in the frequently used form of damage instruction which begins and ends with references to the greater weight of the evidence and in between consists largely of a repetition of the words, “if any.” The insertion of these words at frequent intervals makes the instruction cumbersome, and is the type of thing which the public derides as “lawyer language.” While this form probably could be improved, it certainly is not subject to the objection urged by the defendant. It does not assume anything.

This instruction was also objected to on the ground that it did not require the jury to reduce the damages in proportion to any contributory negligence on the part of plaintiff. Under the facts of this case as first above recited, we doubt that a disinterested person would find any basis for the claim of contributory negligence. Aside from that, the court gave at defendant’s request, an instruction concerning the effect of contributory negligence on the allowance of damages. It is not necessary that every phase of the question of damages be covered by the single instruction. The instructions must be taken as a series, and this particular method of instructing has been approved by this court. Sprickerhoff v. Baltimore & O. R. Co., 323 Ill. App. 340, 352; Nickell v. Baltimore & O. R. Co., 347 Ill. App. 202, 209.

Finally, objection is made to an instruction which informed the jury, in the language of the statute, that an employee under the Act does not assume the risks of his employment, where his injuries resulted in whole or in part from the negligence of other agents or employees of the carrier.

Perhaps the instruction was unnecessary under the pleadings, but it is common in these cases for the carrier to argue, without evidentiary basis, that the plaintiff could have given orders or made requirements, before proceeding in the usual course of his employment. Then it is asserted that he was guilty of contributory negligence for performing his duties without protest in the presence of risk. The defense of assumed risk cannot be revived under some other name. Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54, 87 L. Ed. 610, 63 S. Ct. 444. We adhere to the rule that the giving of this instruction cannot be held-reversible error. Sprickerhoff v. Baltimore & O. R. Co., 323 Ill. App. 340; Nickell v. Baltimore & O. R. Co., 347 Ill. App. 202; Larsen v. Chicago & N. W. R. Co., 171 F.2d 841.

The plaintiff has been incapacitated by serious, painful, and permanent injuries; there appears no reversible error in the trial, and the judgment is affirmed.

Judgment affirmed.

CULBERTSON and BARDENS, JJ., concur.


text:
    Shea Therese Meyer, a Minor, by Eileen Meyer, Her Mother and Next Friend, Plaintiff, v. Henry Polivat, and Gilbert Heindenreich, Defendants.
    Term No. 57-F-8.
    Fourth District.
    May 15, 1957.
    Rehearing denied June 10, 1957.
    Released for publication June 11, 1957.
    James L. Reed, and James H. Parsons, Jr., of Edwardsville, and C. R. Brady, and Brady, Donovan and Hatch, all of East St. Lonis, for defendants.
    Baker, Kagy & Wagner, of East St. Lonis, for plaintiff, ■ Shea' Therese Meyer, a minor.
   PRESIDING JUSTICE SCHEINEMAN

delivered the opinion of the court.

This is a personal injury suit in which the jury returned a verdict of not guilty. The plaintiff’s motion for new trial was allowed on the sole ground that an instruction tendered by plaintiff was erroneous or misleading. The defendants’ petition for leave to appeal was granted by this court.

It is well settled law that a party cannot complain of errors which he has committed, invited, or induced the court to make, or to which he has consented. City of Waukegan v. Stanczak, 6 Ill.2d 594, 608; Johnson v. Luhman, 333 Ill. App. 418, 425; 2 I. L. P. 600, Appeal and Error, Sec. 672.

Of necessity this principle must be applied to the tendering of instructions. Obviously, the law cannot tolerate the granting of a new trial to a party because of error in his own instructions. In this state, as well as elsewhere, attempts at such practice have always been repudiated. Fiedler v. Chicago Ry. Co., 196 Ill. App. 403; Warren v. Jackson, 204 Ill. App. 576, 588; Conover v. Wabash Ry. Co., 208 Ill. App. 105, 112; Kresin v. Brotherhood of American Yoemen, 217 Ill. App. 448, 455.

Appellee cites nothing to the contrary, but attempts to have the questioned instruction (which was not numbered nor identified) declared to be a “Court’s Instruction,” and apparently now disclaims it.

The failure to identify the instruction, as required by the Practice Act, Section 67 [Ill. Rev. Stats. 1955, ch. 110, § 67], might present a problem. However, in this case there is no difficulty; at the conference on instructions, the proceedings were taken down and reported, and are set forth in the transcript.

It appears that another plaintiff’s instruction, numbered 4, was objected to by the defense, and the judge indicated he would sustain the objection. Thereupon, plaintiff’s counsel sa!id he would prepare another instruction, stating its proposed content, and contended that, with it, his number 4 instruction would be proper. The judge agreed, and inquired whether counsel would prepare the other instruction. Upon an affirmative answer, the court ruled that number 4 would then be given.

It further appears that plaintiff’s attorney did prepare and tender the unidentified instruction. The court announced that the instruction as dictated by plaintiff’s attorney would be given.

We find no merit in the assertion that this procedure makes the new instruction one charged only to the court. Of course, all instructions given by the court are the court’s instructions in a general sense, but this does not determine who is responsible for an error therein.

It is not necessary to comment on the supposed error in the form dictated by plaintiff’s attorney. We hold that where the court indicates he will refuse a tendered instruction unless there is a companion instruction submitted therewith, the tendering party may, at his option, suffer the refusal of the first, or prepare and tender the required companion instruction. If he chooses the latter course, he is responsible for the form he prepares and tenders. The mere fact that the court required a companion instruction as a condition to the giving of another instruction, does not relieve the party preparing the companion of the duty to prepare it in proper form. Any defect therein may be objected to by opposing counsel, but not by the party who prepared it.

Since the granting of the new trial was an error of law, the order for a new trial is reversed and the cause remanded with directions to enter judgment on the verdict.

Reversed and remanded.

CULBERTSON and BARDENS, JJ., concur.


author: JUDGE BARDENS

text:
    Beatrice Barnett, Administrator of Estate of George R. Barnett, Deceased, Plaintiff-Appellee, v. E. W. Werner, and George Creager, Defendants-Appellants.
    Term No. 57-F-16.
    Fourth District.
    May 15, 1957.
    Released for publication June 4, 1957.

      Scerial Thompson, of Harrisburg, for defendants-appellants.
    Wham & Wham, of Centralia, Dale Ferguson, of Rock Island, and Richard G. Ferguson, of Chicago, for plaintiff-appellee.
   JUDGE BARDENS

delivered the opinion of the court.

This appeal is concerned with the validity of a nunc pro tunc order entered by the trial judge in the Circuit Court of Saline county on November 5, 1956. For a complete understanding of the issues it is necessary to detail the chronological order of proceedings.

On July 17, 1953, in the Circuit Court of Saline county Jack E. Barnett, Administrator of the Estate of G. R. Barnett, deceased, filed a Narr, and cognovit against T. A. Steele and the defendants in this proceeding, E. W. Werner and Geo. Creager, resulting in a judgment against all three in the sum of $10,602.50.

On August 14, 1953, all of the said original defendants to the suit filed a motion to vacate the judgment and on August 28, 1953, said judgment was vacated. Thereafter, and before any more proceedings were had in the Circuit Court of Saline county, the defendants herein, Werner and Creager, filed a complaint in chancery in the Circuit Court of Jefferson county and therein an injunction order was issued against said Jack E. Barnett as administrator enjoining him from proceeding further against these defendants in the Saline County Circuit Court. A notice of appeal from the injunction order was dismissed by this court on October 26, 1954.

On November 26, 1954, these defendants filed an amendment to the motion to vacate judgment setting up the injunction decree entered by the Circuit Court of Jefferson county.

On June 13, 1955, the case was called to trial in the Circuit Court of Saline county and the minutes of the trial judge entered on that date were: “Cause dismissed as to defendants Werner and Creager on their motions.” Thereafter the case was heard against T. A. Steele resulting in judgment against him only. The record shows that said T. A. Steele was subsequently declared a bankrupt.

Thereafter, Jack E. Barnett, as administrator, filed in this court a petition for leave to appeal from the injunction decree of the Circuit Court of Jefferson county. Such leave was granted and the decree of that court was reversed.

Thereafter and on June 15, 1956, plaintiff Beatrice Barnett, Administrator of the Estate of George R. Barnett, deceased, filed suit in the Circuit Court of Jefferson county against defendants Werner and Creager on the original promissory note upon which judgment had been taken in the Circuit Court of Saline county against T. A. Steele.

On June 16th defendants Werner and Creager asked the Circuit Court of Saline county for a nunc pro tunc judgment correcting the dismissal entry of June 13, 1955, which nunc pro tunc judgment was signed and ordered the June 13, 1955, entry corrected to show dismissal of defendants Werner and Creager to go hence without day. On July 10, 1956, Beatrice Barnett, Administrator of the Estate of G. R. Barnett, deceased, filed her motion to be substituted as party plaintiff and her petition to vacate and set aside the nunc pro tunc order of June 16, 1956, of the Saline County Circuit Court and to enter another nunc pro tunc judgment correcting the entry of June 13,1955, to show that such cause of action against these defendants-appellants was dismissed without prejudice. Substitution was permitted. Thereafter sworn answer to the said petition of the plaintiff was filed. The parties submitted briefs and on November 5. 1956. the court entered a second nunc pro tunc judgment order setting aside the previous nunc pro tunc order of June 16, 1956, and also finding that the June 13, 1955, entry was corrected to read that the said defendants were dismissed without prejudice to the filing of a new action against them by the plaintiff. It is from the order of November 5,1956, that this appeal is taken.

At the outset plaintiffs have raised the question that the order of November 5, 1956, was not a final judgment and, therefore, this court has no jurisdiction. It appears, however, that these parties, upon full notice and hearing, have presented to the trial court the problem of deciding from the record whether the dismissal of these defendants from this law suit was with or without prejudice. The court not only decided this question and thus finally disposed of this branch of the case, but this decision and judgment terminates this law suit in the Circuit Court of Saline county as to these parties. Under the authority of People ex rel. Toman v. Crane, 372 Ill. 228, 23 N.E.2d 337; Brauer Machine & Supply Co. v. Parkhill Truck Co., 383 Ill. 569, 50 N.E.2d 836; Mills v. Ehler, 407 Ill. 602, 95 N.E.2d 848 and Roddy v. Armitage-Hamlin Corp., 401 Ill. 605, 83 N.E.2d 308, it is our opinion that the judgment of November 5, 1956, is a final, appealable order.

The defendants have raised the question that the court did not have authority to substitute Beatrice Barnett, as administrator, as a party plaintiff. We think this contention is answered by paragraph 54 of the Civil Practice Act, being Chapter 110, paragraph 54, of the Illinois Revised Statutes of 1955.

The remaining questions pertain to the authority of the court to enter a nunc pro tunc order after the term has expired and the sufficiency of a basis for said order.

It seems to be well established that courts are justified in entering nunc pro tunc orders to cause their proceedings to speak the truth when from some memoranda of the judge such as minutes or docket entries or from anything in the record before the court certainty is assured without rebanee upon the judge’s memory alone, and these authorities hold that such nunc pro tunc order may be made even after the expiration of the term in which judgment was rendered so as to conform the judgment to that actually pronounced by the court; that this power is inherent in the court but must be based on a definite and certain record. In re Estate of Young, 414 Ill. 525, 112 N.E.2d 113. Moore v. Shook, 276 Ill. 47, 114 N. E. 592. Gore v. People, 162 Ill. 259, 44 N. E. 500. People ex rel. Monogas v. Holmes, 312 Ill. 284, 143 N. E. 835. In People ex rel. Monogas v. Holmes the Court states: “No reason suggests itself why such amendments may not be made at any time, as long as anything definite and certain remains as a basis for the amendment. Knefel v. People, 187 Ill. 212; Church v. English, 81 id 442; Howell v. Morlan, 78 id 162; Cairo and St. Louis Railroad Co. v. Holbrook, 72 id 419.”

From the recital of facts herein it appears that the record conclusively shows that at the time these defendants were dismissed from the suit and the plaintiff proceeded to judgment against Steele these defendants had obtained an injunction order from the Circuit Court of Jefferson county enjoining plaintiff from taking any further proceedings in this case against them. These facts were set up by motion filed in the cause and by an exhibit filed in the trial against Steele. Therefore, when the defendants made oral motion on June 13, 1955, to be dismissed, the plaintiff was helpless to resist this motion without incurring the risk of violating the injunction then in force. The record also demonstrates that no other reason for the dismissal existed. Under these circumstances we hold that the trial court was amply warranted in adjudging that the dismissal was without prejudice and entering a nunc pro tunc order to that effect.

Judgment affirmed.

SCHEINEMAN, P. J. and CULBERTSON, J., concur.


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    Rosie Jablonski, Plaintiff-Appellee, v. Washington County Mutual Fire Insurance Company, Defendant-Appellant.
    Term No. 57-F-12.
    Fourth District.
    May 15, 1957.
    Released for publication June 4, 1957.

      House & House, of Nashville, for defendant-appellant.
    Meryl T. Schroeder, of Mascoutah, and Walther, Barnard and Walther, of St. Louis, Missouri, for plaintiff-appellee.
   JUDGE BARDENS

delivered the opinion of the court.

Defendant, a county mutual fire insurance company, appeals from a judgment of the Circuit Court of Washington county finding it liable on a policy of fire insurance for destruction of plaintiff’s residence. Defendant contends on appeal, as it did below, (1) that the policy in question was suspended because of plaintiff’s failure to pay a prior assessment, and (2) that the policy had been cancelled more than a year prior to the fire loss.

Defendant company was organized and has operated under “An Act relating to local mutual, district, county and township insurance companies,” Ill. Rev. Stat. 1955, Ch. 73, Secs. 204.1-204.24. This Act, a part of our law since 1877, has provided the statutory authority for rural property owners joining together in a non-profit corporation to share fire losses. From time to time, under the current statute, assessments are made by the directors of such companies to pay losses and costs of operation.

On June 12, 1951, defendant executed and delivered to plaintiff a policy of insurance having a five-year term, which included coverage of residence property. On August 3, 1953, an assessment was made on all policy holders which plaintiff failed to pay. A further notice sent on October 15, 1953, reminding plaintiff of her failure to remit brought no response. Thereupon, on December 8, 1953, the following notice was sent to plaintiff:

“The Board of Directors of the Washington County Mutual Fire Insurance Company, of Washington County, Ill., at a special meeting Aug. 14, 1953, ordered to levy an assessment of twenty (20) cents on each $100.00 insurance in force. Notices were mailed on Sept. 1, 1953, and on Oct. 15, 1953.

You have failed to pay your assessment, and are hereby notified that your policy No. 400 has been cancelled and is null and void.

The above policy may be reinstated (in case of no loss) by paying the above assessment.

If you have paid one of our Directors, or any Bank, please advise me, and our records will be changed accordingly.”

On December 21, 1954, a year after the cancellation notice was sent, the fire loss occurred and the company promptly denied liability.

The trial court’s finding for plaintiff was based on the ground that the assessment and notice were illegal because not in accordance with statutory requirements, .and that therefore the cancellation of the policy relying on plaintiff’s failure to respond to such illegal assessment was likewise void.

The statutory provision regarding cancellation of policies of companies regulated thereunder is found in Sec. 204.20 and is as follows:

“. . . the company shall have the power to cancel or terminate any policy by giving the insured notice to that effect, as provided for in the policy.”

The policy contained the following standard fire policy provision covering cancellation:

“This policy shall be cancelled in whole or in part at any time at the request of the insured upon the return of this policy to the Home Office of this Company, . . . or may be cancelled by this Company by giving five days’ notice of such cancellation.”

From these provisions it is clear that a mutual right of cancellation exists, the effective date of which, in the case of cancellation by the company, is five days after notice. Nowhere in the statute or policy is there found any provision that cancellation by the company is conditioned upon the existence or recital of a reason, valid or otherwise, for such action. Nor can we read any such restriction into the statute or policy. The validity of the assessment and notice is, therefore, wholly irrelevant to this proceeding and need not be considered. Had the company not cancelled the policy and instead relied upon the by-laAvs suspending coverage for failure to pay an assessment, or if it were attempting to collect the assessment by legal action, then the validity of the assessment and notice would be a proper issue.

The case of Maples v. Newton Mutual County Fire Ins. Co., 260 Ill. App. 278, is strongly relied on by plaintiff. The facts are substantially similar to those in the instant case except with regard to cancellation. After hearing the evidence for both sides the trial court directed a verdict for the plaintiff policy holder, which action was affirmed on review. In that case the attempted cancellation was based upon a provision voiding the policy for non-payment of premium within the prescribed period after notice. The purported termination was headed “Delinquent Notice” and did not use the word “cancelled” but stated only that the policy was null and void because of an unpaid assessment. In the case at bar the notice was headed “Cancellation Notice” and plainly states that the policy “has been cancelled.” It clearly falls within the “Cancellation” clause rather than the “Neglect or Failure to Pay” clause. The Maples case is distinguishable on this basis.

Plaintiff contends further, however, that the cancellation notice itself was defective because it did not give her five days notice of such action; that it purported to be a present cancellation or recitation of a prior cancellation; and that there can be no implication read into the notice that it was to be effective five days hence. "We find no merit in this argument. The only case we have found in this jurisdiction touching on the point, Colonial Assur. Co. v. Nat. Fire Ins. Co., 110 Ill. App. 471, holds that a cancellation notice of a less formal nature than that used in the instant case was sufficient to terminate insurance coverage five days thereafter. In Gendron v. Calvert Fire Ins. Co., 47 N. M. 348, 143 P.2d 462, where the policy cancellation provision was identical to that in the instant case, the court said:

“There is no merit to the contention that the notice given should have fixed any time or date when the cancellation became effective-, absent a requirement of the policy to that effect. Cancellation becomes effective under the terms of the policy at the end of five days after written notice is given by the company.”

The following comment by the annotator in 35 A. L. R. 899 fairly sums up the prevailing view on this matter: “While there are cases actually or apparently opposed, the better view is that any notice otherwise sufficient in form — i. e., as to writing, etc. — which clearly conveys to the assured notice of cancellation, is effective' after lapse of the full time stipulated in the policy, whether it be a notice of immediate cancelation of a policy contemplating cancelation only after notice, or whether the notice given, while not a notice of immediate cancelation is shorter than that stipulated in the policy. The view is reasonable, for the only purpose of the notice to he given by the company upon cancelation is to enable the assured to obtain protection elsewhere before he is subjected to the risk without protection and it finds the support of both the majority and better considered of the cases.”

We agree with the preceding comment and cases and hold that the notice of cancellation was not insufficient because the effective date of such cancellation was not fixed. It was an unconditional cancellation which by the terms of the policy became effective five days thereafter.

For the reasons stated the judgment appealed from is reversed.

Judgment reversed.

• SCHEINEM AN, P. J. and CULBERTSON, J., concur.


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    People of State of Illinois ex rel. Charles G. Cadell, Plaintiff-Appellee, v. Board of Fire and Police Commissioners of City of East St. Louis, Illinois, and Thomas E. Krebs, Treasurer of City of East St. Louis, Illinois, Defendants-Appellants.
    Term No. 57-F-1.
    Fourth District.
    May 15, 1957.
    Released for publication June 4, 1957.
    Robert F. Godfrey, Corporation Counsel of City of East St. Louis, of East St. Louis, for defendants-appellants.

      Melvin W. Trotier, of East St. Lonis, for plaintiffappellee.
   JUDGE BARDENS

delivered the opinión of the court.

The relator filed a petition for a writ of mandamus in the Circuit Court of St. Clair county to compel the defendant Board to have the position of “dispatcher” in the Fire Department placed under and made subject to the provisions of the Fire and Police Commissioners’ Act. The case was submitted to the trial court on a stipulation of facts and the writ was granted. Defendant appeals, contending that such job classification may properly be filled by “civilian” employees appointed by the City Council. Sec. 14 — 4 of Chap. 24, Ill. Rev. Stat. provides as follows:

“The Board of Fire and Police Commissioners shall appoint all officers and members of the fire and police departments of the municipality, including the chief of police and the chief of the fire department unless the council or board of trustees shall by ordinance as to them otherwise provide; . . . All appointments to each department other than that of the lowest rank, however, shall be from the rank next below that to which the appointment is made, except that the chief of police and the chief of the fire department shall be appointed from among members of the police and fire departments, respectively, regardless of rank, unless the council or board of trustees shall have by ordinance as to them otherwise provided.”

As we pointed out in People ex rel. Cadell v. Board of Fire and Police Commissioners, 345 Ill. App. 415, 103 N.E.2d 666:

“A careful reading of,the whole Article 14 does not leave much doubt as to the objects and purposes sought to be obtained, viz.: to provide a method by which the personnel of the fire and police departments of a city could be taken out of the realm of political patronage and given a tenure that depended upon merit in order to encourage the applications and retention of qualified persons for the said departments.”

Among the job classifications functioning within the Fire Department and under the direction of the Fire Chief is that of “dispatcher.” The stipulation of facts recites a variety of functions and activities of such job, all of which might properly be summarized under the heading “Communications.” The dispatcher receives and relays calls on the location of fires, maintains constant contact by radio and an inter-communication system with the several station houses and radio equipped vehicles, and through such contact permits the coordination of fire fighting personnel and equipment throughout the city. In the past, physically handicapped or pensioned firemen filled the job and it is clear, from the stipulation, that fire fighting skill and experience are unnecessary to properly perform a dispatcher’s duties.

Both parties refer to Chap. 24, Sec. 12 — -1 in an attempt to give more concise meaning to the phrase “officers and members of the fire department” as used in Section 14 — 4. This section, being Article 12 of the Revised Cities and Villages Act, provides for a minimum salary for firemen in certain municipalities and defines firemen in Sec. 1 as follows:

“In this Article the word ‘firemen’ means any member of a regularly constituted fire department of a municipality appointed or commissioned to perform fire fighting duties and includes the fire chief, assistant fire chief, captain, engineer, driver, ladder man, hose man, pipe man and any other member of a regularly constituted fire department.”

We note that the order of the lower court is primarily devoted to an interpretation of the meaning of the word “fireman” as used in this section though the petition for a writ of mandamus raises no such issue. A finding is also made pursuant to the prayer of the petition that the job of dispatcher falls within the provision of Art. 14, Sec. 4, which, we can agree, would logically follow from the lower court’s- interpretation including dispatchers under the minimum salary provision. We turn then to the related question of whether a dispatcher is properly a member of a regularly constituted fire department who performs fire fighting duties and is therefore covered by the minimum salary provision.

In The People v. City of Springfield, 370 Ill. 41, 19 N.E.2d 598, the Supreme Court upheld the constitutionality of Article 12 in the face of the charge, among others, that it was special or class legislation in contravention of Section 22 of Article 4 of the Constitution. The rationale proceeded as follows: fire protection is a matter of general public concern, because of the special hazards inherent in fire fighting, a guarantee of reasonable living conditions is necessary to attract men to such pursuit; therefore, a minimum salary for men engaged in the hazardous occupation of fire fighting is within the proper exercise of the police power. Further, the classification of minimum salaries in accordance with the size of the city is justified constitutionally because of the increased hazards of fire fighting in larger population centers. It is clear, therefore, that the validity of such special legislation proceeds from a recognition that firemen, as the word is therein used, are subjected to special and unusual risks in the course of their occupation. Admittedly, a dispatcher’s functions involve no such hazards, being primarily concerned with communications. To include such job classification under the ■mini-nm-im salary provision would be to logically delete the phrase “appointed or commissioned to perform fire fighting duties,” as used therein, and to ignore the significance of special occupational hazards relied on by the Supreme Court in validating such legislation. We conclude, therefore, that a dispatcher is not covered by Article 12.

Under Article 14, there is no definition of the phrase “officers and members of the fire department.” It is true, as the relator contends, that functionally the dispatcher is an integral member of the fire department in this particular instance. It is also true, however, that such job need not be so limited. A central communications center might be established to maintain necessary contact with various vital municipal departments of government, including the fire department. The activities of a dispatcher are not peculiar to the fire department alone; it is a job classification of wider scope and application.

Looking at the issue from the language of the statute, Article 14, Sec. 4, we observe the statute says that appointments within the fire department shall be from the next lower rank. Implicit in such language is the assumption that all appointees to the lowest rank should have the potential ability to advance through the ranks to the top jobs of fire fighting since appointment to such jobs is limited to men within the department. It therefore would seem to have been the intention of the legislature to limit the application of Art. 14, Sec. 4 to those who are employed in the first instance to actively fight fires. The attributes required of such an employee are substantially different from those necessary to the performance of the job of dispatcher. This is evident from the use of physically handicapped firemen as dispatchers in previous years.

There are also provisions in Sec. 6 of Article 14 which are inconsistent with relator’s contention that dispatchers are members of the fire department subject to the jurisdiction of the defendant Board. For example, the requirements that job applicants be under 35 years of age and be subject to examination which tests their physical qualifications and health, bear no logical relation to a person’s ability to fill the job of dispatcher. Such standards are, however, relevant to a person’s ability to perform the more arduous job of fighting fires.

We conclude, therefore, that the clear public policy of giving tenure based on merit to the job of firefighting does not require that the job of dispatcher be placed under the jurisdiction of the Board of Fire and Police Commissioners.

The order of the trial court is, therefore, reversed.

Reversed.

SCHEINEMAN, P. J. and CULBERTSON, J., concur.