author: Mr. Justice Maxwell

text:
    (No. 33666.
    The People of the State of Illinois, Defendant in Error, vs. Sol Nitti, Plaintiff in Error.

      Opinion filed March 22, 1956.

      Charles A. Bellows, of Chicago, for plaintiff in error.
    Latham CastlE, Attorney General, of Springfield, and John GuticnEcpit, State’s Attorney, of Chicago, (PrEd G. Leach, Irwin D. Bloch, John T. Gallagher, and Rudolph L. Janega, of counsel,) for the People.
   Mr. Justice Maxwell

delivered the opinion of the court:

The defendant, Sol Nitti, waived trial by jury, was convicted in the criminal court of Cook County of the crime of receiving stolen property of the value of $43, and was sentenced to a term of one year in the House of Correction. The judgment of the criminal court was affirmed by the Appellate Court, First District, and a writ of error was issued by this court to review these judgments.

Defendant’s sole contention here is that he was not proved guilty beyond a reasonable doubt because the only evidence against him was the uncorroborated and contradictory testimony of two accomplices, both of whom were convicted felons on probation, hoping for leniency from the prosecution in exchange for their testimony.

The two accomplices, two youths about 16 years of age, testified that they burglarized a freight trailer-truck parked on a lot in the city of Chicago and stole a quantity of cartons of cigarettes, clock radios, and other items. Both testified that they sold 43 cartons of the cigarettes to defendant Nitti, after telling him they were “hot” or “stolen,” in the back room of his cleaning and dyeing establishment, for one dollar a carton. The defendant testified that he first met one of the youths in the county jail the previous year when he (defendant) was serving a go-day sentence. He stated the youths came to him on three occasions to sell him radios and accordians which he refused to buy, but denied they ever offered to sell cigarettes or that he purchased cigarettes from them.

It appears from the record that the two youths had, during a period of a month or two, committed a series of burglaries of transport trailers, and were, at the time of this trial, on probation from two convictions of grand larceny for these crimes. They were also, under indictment with defendant in this case. One of the youths admitted on cross-examination that he hoped to help himself by testifying against the defendant, and immediately after defendant was found guilty the case was struck off as to the youths. It was stipulated that defendant Nitti in 1933 was involved in an armed robbery and was sentenced to the penitentiary for one year to life.

This State has always followed the common-law rule that the uncorroborated testimony of an accomplice, if it satisfies the jury or court beyond a reasonable doubt, is sufficient to sustain a conviction of a felony. (Gray v. People, 26 Ill. 344; Rider v. People, 110 Ill. 11; People v. Niemoth, 409 Ill. 111; People v. Johnston, 382 Ill. 233; People v. Jurek, 357 Ill. 626.) We have, however, recognized that such testimony is not of the most satisfactory character and is attended with serious infirmities which require utmost caution in relying upon such evidence alone. (People v. Hermens, 5 Ill.2d 277; People v. Rendas, 366 Ill. 385; People v. Hudson, 341 Ill. 187.) Such considerations go to the questions of the weight of the evidence or credibility of the witnesses, which questions are peculiarly the province of the jury or the court in the first instance. The jury, or the court in its stead, has opportunities not possessed by a court of review, to form a correct estimate of the credibility of witnesses and the weight of their testimony. For these reasons if the jury or the court is satisfied by the testimony of an accomplice, beyond a reasonable doubt, the judgment should not be set aside unless it is plainly apparent to the reviewing court that the defendant was not proved guilty beyond a reasonable doubt. People v. Jurek, 357 Ill. 626; People v. Rudnicki, 394 Ill. 351.

The defendant here contends that the testimony of the accomplices was not worthy of belief because they were convicted felons, were testifying to get leniency for themselves, and their statements were contradictory. The record shows that the trial judge, who heard the testimony of the accusers as well as the defendant’s denial, was fully aware of all these matters. The witnesses were separated at the beginning of the trial and there are conflicts in the testimony of the two youths as to the disposition of some of the other stolen property, part, of which was due to the fact that each had separately disposed of different items. Their testimony is not in conflict, in any material respect, in regard to the sale of the 43 cartons of cigarettes to the defendant in the back room of his cleaning establishment. Both described this back room and its contents, the defendant denied that they had ever been in the room but he did not contradict in any manner their description of the room and its contents. The slight variations in the details of the less material matters do not obscure the main facts of the crime upon which their testimony is in complete harmony.

The judgment of the Appellate Court for the First District is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justicb Schabpbr

license: Public Domain

text:
    (No. 33757.
    The People of the State of Illinois, Defendant in Error, vs. John Williams, alias Slats Williams, Plaintiff in Error.

      Opinion filed March 22, 1956.

    G. W. HorslBy, and L. H. LBnz, both of Springfield, for plaintiff in error.
    Latham CastlB, Attorney General, of Springfield, and H. David Condron, State’s Attorney, of Quincy, (FrBd G. Lbach, Edwin A. Strugala, and William J. DiBTrich, of counsel,) for the People.
   Mr. Justicb Schabpbr

delivered the opinion of the court:

An information filed in the county court of Adams County charged John Williams, alias Slats Williams, with keeping and maintaining a house of ill fame and place for the practice of prostitution and lewdness in the city of Quincy. A jury found defendant guilty as charged, and fixed his punishment at imprisonment in the county jail for one year and a fine of $200. Judgment was entered on the verdict, and defendant sentenced to the Illinois State Farm at Vandalia for one year and fined $200. Upon a writ of error the Appellate Court for the Third District affirmed the judgment. (6 Ill. App.2d. 325.) Subsequently, defendant prosecuted a writ of error from this court, and the record is here for a further review.

A careful consideration of the record satisfies us that the Appellate Court correctly affirmed the judgment of the county court. No useful purpose would be served by an additional analysis of the contentions made and argued by the parties, which would necessarily be largely repetitive. Since we are satisfied that the opinion of the Appellate Court adequately treats the material objections raised, the judgment of that court will be affirmed, and its opinion is adopted as the opinion of this court.

Judgment affirmed.


author: Mr. Justice Klingbiel

text:
    (No. 33731.
    International College of Surgeons, Appellee, vs. John B. Brenza, County Collector, et al., Appellants.

      Opinion filed March 22, 1956.

      John GutknEcht, State’s Attorney, of Chicago, (Gordon B. Nash, Charles D. Snewind, Roman R. Stachnik, William S. White, and Francis X. Riley, of counsel,) for appellants.
    Julia M. Hagerty, of Chicago, (Lynch & SchallER, of Chicago, of counsel,) for appellee.
   Mr. Justice Klingbiel

delivered the opinion of the court:

The International College of Surgeons, a not-for-profit corporation, claiming to be a charitable or philosophical organization, brought suit in the circuit court of Cook County to enjoin the county treasurer and other officials from collecting taxes on its property for the years 1951 to 1954. After hearing evidence the court entered a decree granting the relief prayed. Defendants’ appeal comes directly to this court, the revenue being involved.

The property in question is a stone front four-story building in Chicago. It was purchased in 1950 for use as a museum and surgeons’ “hall of fame,” to contain statuary, murals, manuscripts and a library. Following its acquisition, plans were made for improvements to adapt it to such use, including provision for an auditorium and lecture hall. During the period in question it was used for periodical meetings and for the free distribution of literature on surgical techniques and advances, with a portion of one floor being occupied temporarily by the seller pursuant to an agreement at the time of purchase. No rental income was derived from the premises.

The plaintiff’s charter states that its purposes are to aid in creating higher standards of surgery through association of leading surgeons, to promote educational improvement of its members, to combat unethical and illegal practices, and to inspire younger members to become more skilled in the art of surgery. Acts of charity performed by plaintiff include a donation to the Royal College of Surgeons after it had incurred bomb damage in the war, monetary relief of the Netherlands flood victims, “Care” packages to England during World War II, and the like.

To sustain its claim of exemption plaintiff points to the following classes-of property which the statute declares exempt ■ from taxation: “All property of institutions of public charity, all property of beneficent and charitable organizations, * * * when such property is actually and exclusively used for such charitable or beneficent purposes, and not leased or otherwise used with a view to profit; and all free public libraries. * * * All property which may be used exclusively by societies for * * * philosophical purposes, and not for pecuniary profit.” (Ill. Rev. Stat. 1953, chap. 120, par. 500, subpars. (7) and (10).) The mere fact that property is held by an institution of public charity, it is seen, is not sufficient to exempt it from taxation. The property itself must be devoted to charitable purposes, and it must be in actual use by the institution in carrying out directly its charitable purposes. (People ex rel. Graff v. Passavant Memorial Hospital, 342 Ill. 193.) In determining what is meant by charitable purposes in the statutory sense the fact that the activities of the organization are not conducted for profit is not of controlling importance. (Oak Park Club v. Lindheimer, 369 Ill. 462; Turnverein “Lincoln” v. Board of Appeals, 358 Ill. 135.) To be devoted to charitable purposes the property must be applied for the benefit of an indefinite number of persons, either by bringing their hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government. (See People ex rel. Cannon v. Southern Illinois Hospital Corp. 404 Ill. 66, 69; Crerar v. Williams, 145 Ill. 625, 643.) It is evident that use of the present property for meetings and distribution of literature does not constitute a dedication to charitable purposes. Nor does the mere intention of developing it for the uses designated result in exemption. To justify such benefit it must be in actual use for carrying out the charitable purpose. Property of charitable organizations is not exempt on the present ground where it is not in actual use directly for such purposes. People ex rel. Baldwin v. Withers Home, 312 Ill. 136.

Moreover, plaintiff cannot be classified as an institution of public charity. Its funds are derived from membership dues, not from public or private charity. It holds them primarily for the benefit of the members, and for the advancement' of the art of surgery by developing their skills. The incidental benefit accruing to the public is no different from that associated with almost any lawful endeavor, and most certainly cannot afford basis for tax exemptions. (See American Medical Ass’n v. Board of Review, 392 Ill. 614, 622-623.) Under the constitution all property in this State is subject to taxation unless relieved by legislation passed in accordance with the constitutional provision. (People ex rel. Baldwin v. Withers Home, 312 Ill. 136, 139.) Statutes passed for the purpose of exempting property from taxation must be strictly construed, and if there is any doubt upon the question it must be resolved against the exemption. Here it is unnecessary to resolve any doubts. The property is clearly not devoted to charitable purposes within the meaning of the statute.

Plaintiff further takes the position that the property in question was used exclusively by a society for philosophical purposes, within the meaning of subsection (10) of section 19 of the Revenue Act of 1939. (Ill. Rev. Stat. 1953, chap. 120, par. 500, subpar. (10).) Defendants contend it is unconstitutional for the legislature to exempt property on the ground of use for such purposes. We agree. Article IX of the constitution, after subjecting, in general terms, all property to taxation, provides in section 3 that the legislature may exempt from taxation such property “as may be used exclusively for agricultural and horticultural societies, for school, religious, cemetery and charitable purposes.” (Ill. Rev. Stat. 1953, p. 18.) This constitutional provision is not self-executing; and exemptions within the limitations prescribed, exist only when created by a general law enacted-by the legislature. (Turnverein “Lincoln” v. Board of Appeals, 358 Ill. 135; see People ex rel. Greer v. Walters Chapter D.A.R. 311 Ill. 304.) Examination of the constitutional language fails to disclose any reference to “philosophical” purposes, or to others of similarly vague denotation. We have heretofore observed that “The words used in the constitution are to be taken in their ordinary acceptation and under the rule of strict construction, which excludes all purposes not within the contemplation of the framers of that instrument.” (People ex rel. McCullough v. Deutsche Gemeinde, 249 Ill. 132, 136.) The common understanding and application of the purposes specified in the constitution does not warrant us in construing them so as to embrace “philosophical” ones. The present provision of the statute, in so far as it purports to exempt property used for philosophical purposes, is unconstitutional.

The property of the plaintiff is not exempt from the taxes imposed for the years in question, and the circuit court erred in holding plaintiff entitled to the relief prayed. The decree is accordingly reversed.

Decree reversed.


text:
    (No. 33732.
    Peter Zelkovich, Defendant in Error, vs. The Industrial Commission et al.—(John Stanich, Plaintiff in Error.)

      Opinion filed March 22, 1956.

      Arthur O. Kane, of Chicago, for plaintiff in error.
    William M. Doty, and John J. Kapov, both of Chicago, for defendant in error.
   Mr. Justice Klingbiel

delivered the opinion of the court:

Plaintiff in error, John Stanich, was awarded compensation by an arbitrator, under the Workmen’s Compensation Act, and the award was sustained by the Industrial Commission. The circuit court of Cook County set it aside, and the cause is here on writ of error by leave of this court.

Stanich was employed as a janitor by Peter Zelkovich, who owned and operated a combination restaurant, tavern and liquor store. Stanich testified that June 14, 1952, about eight o’clock in the morning, he fell and struck the lower part of his back on the basement steps as he was carrying empty beer cases down the stairs. To reverse the judgment of .the circuit court he contends (1) his employer was subject to the Workmen’s Compensation Act because engaged in an extra-hazardous business, and (2) the findings of the Industrial Commission that he suffered injuries from an accident arising out of and in the course of his employment are not against the manifest weight of the evidence. In the view we take of this case it is unnecessary to consider the latter question.

The contention that the employer’s business is an extra-hazardous one is based on paragraph yjT of section 3 of the act (Ill. Rev. Stat. 1951, chap. 48, par. 138.3), which declares to be extra hazardous “Any enterprise in which sharp edged cutting tools, grinders or implements are used, including all enterprises which buy, sell or handle junk and salvage, demolish or reconstruct machinery, * * *.” The section provides that the act shall apply automatically and without election to all employers and all their employees engaged in businesses declared to be extra hazardous. Petitioner testified to the presence of butcher knives, a meat cleaver, two electric fans and an electric grinder and meat chopper. Both the employer and Anna Freeman, a cook employed on the premises, denied that there was an electric meat grinder.

In Garren v. Industrial Com. 340 Ill. 95, the employer’s husband operated a soft drink parlor, with a bar and counter, in a building adjoining his home. His wife at times served meals in the dining room to transients. A domestic employed by her for general work in the house and kitchen claimed compensation from the husband and wife for an injury incurred by cutting her thumb with a knife while chopping vegetables. She testified to the presence of knives, saws, butcher’s cleavers and a meat grinder. The employer admitted that there were a meat saw and a meat cleaver, but denied the presence of a meat grinder. We held the evidence failed to show the parties were under the Workmen’s Compensation Act.

In Therien v. Industrial Com. 351 Ill. 166, the employer conducted a nursing home for the care of convalescing invalids, aged persons and mild mental cases. The kitchen contained knives for cutting roasts and paring vegetables, and the usual dull knives for service purposes. A janitor employed in the establishment sustained an injury when a large piece of coal fell on his foot, and he filed a claim for compensation. In deciding the business did not come within the provisions of the act, we held that ordinary knives used for the purpose of cutting roasts do not come within the purview of section 3 as sharp-edged cutting tools, grinders or implements.

Decisions such as these show that paragraph is to be given a realistic interpretation; and that a literal application leading to absurd results will be rejected. The reasonable meaning of section 3 as a whole is that its provisions are designed only for employers engaged in occupations which are in fact extra hazardous. Its object is the better protection of employees exposed to greater danger by reason of their employment in such pursuits, but its provisions were not intended to apply where the danger of injury is not substantially greater than that which is present in any ordinary enterprise. To construe the section as applying to a restaurant with a meat grinder but not to one without a meat grinder would result in subjecting one employer to a greater liability than that imposed on other employers in the same occupation under essentially the same conditions. We think such a construction of the statute would not be a reasonable one. (See Vaughan’s Seed Store v. Simonini, 275 Ill. 477.) It is the type of business, rather than a particular item of equipment occasionally present, that should determine its statutory classification. The danger arising from the use of ordinary butcher knives, meat cleavers, or meat grinders is too remote to warrant an interpretation rendering it “extra hazardous” within the meaning of the statute. See Village of Niles Center v. Industrial Com. 371 Ill. 622, 625.

To bring an employer within the provisions of section 3, it is encumbent upon the employee to show the use of sharp-edged tools, grinders or implements of a nature contemplated by the section as a whole. Almost every occupation entails the use of sharp-edged cutting tools of some kind. A pair of scissors, a paring knife, or a pocket knife may each be described as a sharp-edged cutting tool, but the position could not be maintained that its use makes extra hazardous an otherwise innocuous enterprise. The rule is well established that in construing a statute the courts are not confined to its literal meaning. A thing within the letter is not within the statute if it is not within the intention. (Bowman v. Industrial Com. 289 Ill. 126.) Courts are bound to presume that absurd consequences were not contemplated by the legislature, and a construction should be adopted which it is reasonable to presume was contemplated. Burns v. Industrial Com. 356 Ill. 602; Patterson Pure Pood Pie Co. v. Industrial Com. 335 Ill. 476; Louisville and Nashville Railroad Co. v. Industrial Board, 282 Ill. 136.

We conclude the petitioner in the case at bar failed to show his employer was engaged in an extra-hazardous business subjecting him to the automatic application of the Workmen’s Compensation Act. The circuit court rightly set aside the award, and the judgment of that court is therefore affirmed.

ludgment affirmed.


author: Mr. Justice Schaefer

text:
    (No. 33775.
    Dante Cottini et al., Appellees, vs. Roy F. Cummins, Director of Labor, et al.—(Chicago Thrift Etching Corporation, Appellant.)

      Opinion filed March 22, 1956.

      Fyefe and Clarke, of Chicago, (John Harrington, of counsel,) for appellant.
    Cotton, Fruchtman & Watt, of Chicago, (Eugene Cotton, and Helen Hart Jones, of counsel,) for appellees.
   Mr. Justice Schaefer

delivered the opinion of the court:

This case presents the question of the eligibility of certain employees of Chicago Thrift Etching Corporation for benefits under the Unemployment Compensation Act. A deputy of the Division of Unemployment Compensation found them ineligible, and on appeal the Director of Labor affirmed this determination after a hearing at which evidence was introduced before his representative. In a proceeding instituted by the employees under the Administrative Review Act, the circuit court of Cook County reversed the ruling of the Director, and the company appeals.

The company manufactures metal name plates. During the period here in question it employed about 192 persons in its manufacturing and maintenance operations, in addition to foremen and office personnel. Of the production and maintenance workers, 172 were members of Basic Processors Union, A.F.L. About 20 employees were engaged in various phases of the lithographing processes used in making name plates. For a number of years these lithographers, including the 13 plaintiffs in this case, had been recognized as a separate collective bargaining unit, represented by Amalgamated Lithographers of America, C.I.O. Each union bargained separately for the employees it represented. They had never negotiated jointly with the company.

The contract of the Basic Processors Union with the company was to expire on April 2, 1953. Negotiations looking toward a new agreement took place during March, but they were unsuccessful. On April 1, 1953, the union called a strike and established pickets at the company entrances. The strike lasted until May 13, 1953. During the strike the 13 plaintiffs and the other members of the Lithographers’ Union did not work, and their claim for unemployment compensation benefits covers that period.

Section 604 of the Unemployment Compensation Act (Ill. Rev. Stat. 1951, chap. 48, par. 434,) provides: “An individual shall be ineligible for benefits for any week with respect to which it is found that his total or partial unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed, provided, that this Section shall not apply if it is shown that (A) he is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work and (B) he does not belong to a grade or class of workers of which immediately before the commencement of the stoppage there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; * *

The Director found that a work stoppage existed because of the strike of the Basic Processors Union, which was a labor dispute, and that the plaintiffs were not interested in that dispute and did not finance it, directly or indirectly. These findings are not challenged, nor is it disputed that the picketing by the Basic Processors Union was entirely peaceable and orderly. The Director also found, however, that the plaintiffs and the other members of the Amalgamated Lithographers Union participated in the labor dispute which caused the stoppage, and were therefore ineligible for benefits under the statute. This finding is sharply disputed.

The lithographers, like the members of the Basic Processors Union, did not report for work while the strike was in progress. They assert, however, that their conduct was caused by their belief that the company did not want them to come to work, and so did not constitute participation in the dispute. This belief is attributed to certain characteristics of the company’s work and to certain conduct on the part of company officials.

The lithographic department is responsible for imprinting on the metal the printed material which appears on the finished name plate. Before the raw material in the form of sheets of metal is brought to the lithographic department it is first washed, cleaned or degreased. After the lithographic process has been completed, asphalt powder must be applied in preparation for etching. The powder must be applied within two or three days after the lithographic process has been completed or the printed product will become worthless and it will be necessary to begin the entire process over again. The lithographic work and the work which preceded and followed it were thus a part of a continuous process. One of the claimants who had been an employee for thirty years testified that he knew of no time when the company laid off processors and let the lithographers continue to work.

Although the company knew that there was to be a strike for at least a week before it occurred, no representative of the company indicated to the foreman, the shop delegate or any of the lithographers that they wanted them to come to work in the event of a strike by the processors. And although representatives of the company saw a group of the lithographers across the street from the plant during every day of the strike, they did not tell them that the company wanted them to report to work. Upon this evidence it is argued that the plaintiffs were justified in assuming that the company did not want them to work during the strike.

Under the statute, one whose unemployment is due to a work stoppage caused by a labor dispute is ineligible for unemployment benefits unless he establishes that he falls within both of the statutory exceptions. (Shell Oil Co. v. Cummins, 7 Ill.2d 329; Brown Shoe Co. v. Gordon, 405 Ill. 384.) In our opinion the plaintiffs have failed to establish nonparticipation in the strike. Our decisions in Outboard, Marine & Mfg. Co. v. Gordon, 403 Ill. 523, and Shell Oil Co. v. Cummins, 7 Ill.2d 329, show that a failure to report to work during a strike does not, under all circumstances, amount to participation in the strike. But the justifications present in those cases are absent here. Cf. American Brake Shoe Co. v. Annunzio, 405 Ill. 44.

It appears from the evidence that before any employees had left the plant on the afternoon before the strike, the company posted a printed notice upon the plant bulletin board which all employees passed in going to the time clocks. This notice was addressed “To All Employees of the Chicago Thrift-Etching Corporation and Members of the Basic Processors Union, Local No. 44 AEL.” It stated that the Basic Processors Union had called a strike on April 1 because the company would not meet its wage demands. After reciting the background of the strike from the company’s point of view, it went on: “Despite the strike called by the Union beginning tomorrow, this plant will remain open for any employee who desires to work, whether or not that employee belongs to the Union. We are assured that the Chicago Police Department will protect any employee who desires to work.”

Two of the plaintiffs testified. The first had not seen the notice; the second was not asked about it. We need not in this case consider whether the plaintiffs would be bound by a notice posted in the usual place even though they did not see it, for the record here is consistent with the possibility that all but one of the plaintiffs read the notice. The record also shows that the washing and degreasing which precede the lithographic work was normally done by three people, and that the process of applying the asphalt powder which followed the lithographic work was normally the work of two men. There were twelve foremen available to do this work during the strike. There are other circumstances which similarly suggest that the plaintiffs’ conduct was not attributable to their asserted belief that the company did not want them to work. It is unnecessary to detail them, however, because it does not appear that the plaintiffs were unaware of the company’s expressed desire. They can not, of course, rely on their unilateral determination as to the company’s wishes in the face of an expression to the contrary.

The judgment of the circuit court of Cook County is reversed and the decision of the Director is confirmed.

Judgment reversed; decision confirmed.


author: Mr. Justice Daily

text:
    (No. 33784.
    Mary H. Garner et al., Appellants, vs. The County of Du Page et al., Appellees.

      Opinion filed March 22, 1956.

      IClingbiel, J., took no part.
    Gordon Moeeett, of Wheaton, George D. Carbary, of Elgin, and LederER, Livingston, Kahn & Adsit, of Chicago, (Burton Y. WeitzEneeld, and Ralph Jonas, of counsel,) for appellants.
    William L. Guild, State’s Attorney, of Wheaton, Winston, Strawn, Black & Towner, and Osborne, Scheib, Adams & Hogan, both of Chicago, and Rathje & Woodward, of Wheaton, (John C. Slade, Douglas C. Moir, and Edward J. Wendrow, of counsel,) for appellees.
   Mr. Justice Daily

delivered the opinion of the court:

This is a direct appeal from a decree of the circuit court of Du Page County which found an amendment to the county’s zoning ordinance to be a constitutional exercise of the police power and dismissed, for want of equity, a complaint attacking its validity and seeking injunctive relief.

Facts necessary to this opinion show that the amendment in question changed from “F” (farming) to “1-2” (industrial) the zoning classification of a 120-acre tract of land located approximately one mile west of the city of Naperville. Proceedings for the change were instituted by Dorothy R. Polivka, the owner of the tract, shortly after she had given Foote Bros. Gear and Machine Corporation an option to purchase it. Zoning regulations permitting, the corporation proposed to erect industrial units which would eventually employ 1500 to 2000 persons. The city council of Naperville, to whom section 2 of the County Zoning Act gives a right of protest, (Ill. Rev. Stat. 1955, chap. 34, par. 152J,) expressed itself to county officials as favoring the rezoning; the county zoning board of appeals recommended against it. However, the county board, by the unanimous vote of its members present, amended the county ordinance so as to effect the change of zoning requested. After the rezoning, Mary H. Garner, Donald J. Anderson and Walter L. Darfler, the appellants, filed a complaint against the county and its zoning officers praying that the amendment be declared null and void and that the defendants be permanently enjoined from issuing a building permit for the construction of any industrial or business buildings on the Polivka tract. Subsequently Dorothy Polivka and Foote Bros. Corporation were made parties defendant.

Appellants’ complaint alleged that they were taxpayers, residents of the county, the owners of real estate in and about the city of Naperville, and that said real estate was located contiguous to and in the vicinity of the tract rezoned. As grounds for the relief prayed it was alleged that the rezoning was unreasonable, arbitrary and capricious, that it decreased the value of appellants’ property, and that it would be detrimental to the welfare of the city of Naperville in that the influx of population expected to accompany the industrial use contemplated by Foote Bros, would overtax the city’s facilities for housing, education, water, sewage disposal, traffic and the like.

Proof given in support of the complaint disclosed that the real property owned by appellants was neither contiguous to nor in proximity with the Polivka tract. It appears, rather, that Garner and Anderson own residential properties within the corporate limits of Naperville some three miles from the tract rezoned and thus outside both the unincorporated area and the use district affected. As regards Darfler, the evidence was that he owns a 100-acre dairy farm within the same use district, but that it is located one and one-half miles distant from the rezoned tract. Similarly, the proof failed to support the allegation that the values of appellants’ property were decreased by the change of zoning classification. Appellants Garner and Anderson testified at the hearing of the cause but Darfler did not; however, neither of said appellants nor any of the witnesses appearing in their behalf gave any evidence whatsoever relating to the values of their properties. Indeed, the only evidence concerning such values was furnished by a real-estate expert who, as a witness for appellees, expressed the opinion that appellants’ real estate was too far distant from the rezoned tract for any change in values to result. With regard to the proof offered to sustain the allegation that the rezoning would be detrimental to the city of Naperville, it is only necessary to say that it likewise failed to establish the existence of special injury or damage to appellants’ personal and property rights.

This case is not the normal one where an owner of land is complaining of restrictions placed upon its use, but is the comparatively rare case in which it is claimed that corporate authorities have wrongfully permitted a use on the property of someone else. Under such circumstances we have held that for a party to have standing in a court of equity to complain about the use of another’s property, he has the burden of proving that he has suffered a special damage by reason of such use which differs from that suffered by the general public. (Bullock v. City of Evanston, 5 Ill. 2d 22, 33-34; Avery v. Village of La Grange, 381 Ill. 432, 440; People ex rel. Terp v. Washingtonian Home, 361 Ill. 522, 525.) As stated in 43 C.J.S., Injunctions, sec. 22b, where a similar rule is expressed in connection with the right of a private individual to seek injunctive relief for a public injury, “The rule is not a technical and arbitrary one, but has a solid foundation in principle and is sustained by very sound reasons of public policy, its object being to protect defendant against a multiplicity of suits and to secure him in one suit a final determination of all the controverted questions involved.” If the rule were not applied to zoning cases in the nature of the one before us, harassing and vexatious suits by persons not aggrieved would most certainly ensue.

When the facts of the present case are considered, it is clear that appellants have failed to prove damage which is different from that suffered by the public generally and therefore have no standing to maintain the action. Apart from the total failure of any evidence showing that the rezoning would depreciate the values of appellants’ real estate, we may also consider the fact that appellants’ properties are so far distant from the rezoned tract as to make it doubtful that any prejudice or depreciation could result, (Speroni v. Board of Appeals, 368 Ill. 568, 571,) and the further fact that two of the properties are not even within the unincorporated area to which the zoning. amendment applies. (Cf. People ex rel. Terp v. Washingtonian Home, 361 Ill. 522.) Insofar as the alleged detrimental effects to the city of Naperville are concerned, it is to be noted that while appellants allege themselves to be taxpayers, there is no allegation that the complaint was filed in such capacity or that their burden of taxation will be increased by the industrial use of the rezoned tract. From the tenor of the allegations and the substance of the proof it appears only that if the rezoning does pose a threat of injury to appellants, it will not be different from that of the public generally. To use the words of Blumenberg v. Hill, 119 N.Y.S. 2d 855, “As one may not assume the role of champion of a community to challenge public officers to meet him in courts of justice to defend their official acts, * * * so one having only a general interest may not adopt the part of an advocate of municipal welfare * * * to promote a judicial enforcement or interpretation of zoning regulations.”

Because appellants have failed to show injury, threatened injury, or a right to represent the people, we conclude they had no standing to maintain this suit in equity. For this reason the circuit court of Du Page County properly dismissed the complaint and its decree is affirmed.

Decree affirmed.

Mr. Justice KlingbiEl took no part in the consideration or decision of this case.


author: Mr. Justice Davis

text:
    (No. 33795.
    The People of the State of Illinois, Defendant in Error, vs. Earnest Whitcomb, Plaintiff in Error.

      Opinion filed March 22, 1956.

      Earnest Whitcomb, pro se.

    Latham Castle, Attorney General, of Springfield, and Frank W. Curran, State’s Attorney, of Kankakee, (Fred G. Leach, and Edwin A. Strugala, of counsel,) for the People.
   Mr. Justice Davis

delivered the opinion of the court:

The defendant, Earnest Whitcomb, appearing pro se, prosecutes this writ of error for review by this court of the common-law records of his 1954 convictions of the crimes of assault with intent to commit murder of two persons. He entered pleas of guilty, and the questions before this court concern the validity and form of the judgments sentencing him to the Illinois State Penitentiary. These judgments, entered in the circuit court of Kankakee County, under indictments numbered 2274 and 2275, read: “It is ordered by the Court that defendant be and he is hereby sentenced to the Illinois State Penitentiary for a term of not less than 1 year nor more than 14 years and it is provided as a part of this sentence that the defendant shall be confined not less than 12 years nor more than 14 years.” The judgment order in indictment No. 2275 added, “This sentence to be served concurrently with the sentence imposed in case Number 2274.”

Defendant contends these judgments are not definite and certain as required by law and further contends that the judgment orders of sentence were entered under unconstitutional amendments to the Sentence and Parole Act.

A sentence imposed by the court upon a person convicted of crime must be certain as to the length of time and place of confinement. (People v. Jackson, 399 Ill. 488; People v. Roche, 389 Ill. 361; People ex rel. Hinckley v. Pirfenbrink, 96 Ill. 68.) Defendant contends that the sentence is uncertain as to time and therefore cannot stand, relying on the decision of this court in People v. Jackson, 399 Ill. 488.

In the Jackson case the defendant was convicted of robbery, and the judgment and sentence were as follows: “The sentence of the Court is that the defendant Hollis Jackson be confined in the Illinois State- Penitentiary for an indeterminate term of not less than one year nor moré than twenty years and there to remain until discharged according to law. The judgment of the Court is that the defendant, Hollis Jackson, be confined in the penitentiary for a term of not less than ten years nor more-than twenty years and there to remain until discharged according to law.” This court,' observing that in effect there were in that case two separate judgments exactly alike except as to minimum duration of confinement and that under the first the prisoner might become entitled to parole long before the minimum of the second sentence had been served, held that the sentence was uncertain as to time and therefore erroneous. The cause was reversed and remanded with directions to enter a proper judgment.

In the case of People v. Stucker, 5 Ill. 2d 55, upon conviction of the crime of forgery, the court sentenced the defendant to the penitentiary “for a term of not less than One (1) year nor more than Twenty (20) years and the court fixes the minimum sentence at two (2) years and the maximum sentence at ten (10) years.” The defendant, relying on the decision of this court in the Jackson case, sought reversal of the judgment, but this court affirmed even though the period of 20 years mentioned in the first part of the judgment exceeded the maximum provided by statute, holding that the prior part of the sentence could be rejected as surplusage so long as the court had exercised its discretion to fix the minimum and maximum limits of confinement and the maximum limit fixed did not exceed the maximum limit prescribed by statute. It was further observed that it was apparent that the language preceding the fixing of a minimum of two years and a maximum of ten years merely purported to recite the statutory penalty and that there was no doubt or uncertainty as to which order was to be effective.

We regard the Jackson case as clearly distinguishable from the case at bar and the decision of this court in the Stacker case as controlling. There is no problem here involving two separate inconsistent sentences such as was presented in the Jackson case, since the order here, after reciting the statutory minimum and maximum periods of confinement, provides as part of the sentence that the defendant be confined not less than 12 years nor more than 14 years. The trial court in this case has exercised its discretion to fix the minimum and maximum periods of confinement, within those prescribed by statute, which control the time defendant is to serve and enable him to determine that time with certainty. That portion of the judgment which precedes the fixing of a term of confinement at not less than 12 years nor more than 14 years merely recites the statutory penalty and, as in the Stacker case, may be disregarded as surplusage. Such sentence complies with section 2 of the Sentence and Parole Act as amended in 1943. People v. Bellmeyer, 396 Ill. 552.

Defendant also suggests that the 1941 amendments to the Sentence and Parole Act (Ill. Rev. Stat. 1941, chap. 38, par. 801 et seq.) are unconstitutional as delegating judicial power to an administrative body and that a sentence under these invalid provisions cannot stand, citing People v. An derson, 382 Ill. 316, and People v. Montana, 380 Ill. 596. It is true that the 1941 amendments to certain sections of the Sentence and Parole Act were held invalid in the Montana case, but the defendant in the case at bar was not sentenced under the amendments adjudged unconstitutional in that case. He was sentenced instead under the Sentence and Parole Act as amended in 1943 and thereafter. The amendatory act of 1943 is constitutional. (People v. Robinson, 407 Ill. 299; People v. Burnett, 394 Ill. 420; People v. Roche, 389 Ill. 361.) The constitutional objection interposed is therefore without substance and does not apply to the statutes under which sentence was imposed, and the judgments are accordingly affirmed.

Judgments affirmed.


author: Mr. Justice Bristow Mr. Justice Keingbiee,

text:
    (No. 33394.
    Ruth Elaine Allendorf, Admx., Appellee, vs. Elgin, Joliet and Eastern Railway Company, Appellant.

      Opinion filed March 22, 1956.

      Klingbiel, J., dissenting.
    Stevenson, Conaghan, Velde & Hackbert, of Chicago, (Harlan L. Hackbert, of counsel,) for appellant.
    William H. DeParcq, and Robert J. Martineau, of Chicago, (Charles Alan Wright, of counsel,) for appellee.
   Mr. Justice Bristow

delivered the opinion of the court:

James Allendorf, an Indiana resident, was killed on March 3, 1952, while performing his duties as switch foreman in the defendant’s railroad yards at Gary, Indiana. Thereafter, his wife, Ruth Allendorf, filed this action in the circuit court of Cook County, as special administratix, to recover damages under the provisions of the Federal Employers’ Liability Act. (45 U.S.C.A. sec. 51-59.) Trial was had by a jury, which, in addition to returning special findings as to negligence which were favorable to the plaintiff, also rendered a verdict for her in the amount of $127,500. After judgment was entered thereon, the defendant filed motions in arrest of judgment, for judgment notwithstanding the verdict, and for a new trial. As a basis for the former, it was contended that section 2 of the Injuries Act (Ill. Rev. Stat. 1951, chap. 70, par. 2,) precludes Illinois courts from assuming jurisdiction of a wrongful death action arising in a sister State. In opposition thereto, plaintiff argued that the statute, insofar as it so provided, was in conflict with the supremacy clause of article VI of the United States constitution, and was therefore unconstitutional. The defendant’s motions were subsequently denied and direct appeal has been taken to this court. In addition to the constitutional issue presented, the defendant contends that the verdict was not properly supported by the evidence and that the trial court erred in allowing certain actuarial testimony.

We must first decide whether the courts of Illinois have the power to entertain a cause of action for a wrongful death occurring outside of this State. Section 2 of our Injuries Act, after placing certain limitations upon the right of recovery, continues: “Provided, further, that no action shall be brought or prosecuted in this State to recover damages for a death occurring outside of this State where a right of action for such death exists under the laws of the place where such death occurred and service of process in such suit may be had upon the defendant in such place.”

This proviso prohibits actions where the wrongful act occurred outside this State. (Crane v. Chicago and Western Indiana Railroad Co. 233 Ill. 259.) Thus, if not in conflict with the United States constitution, it bars the present action.

In Hughes v. Fetter, 341 U.S. 609, 95 L. ed. 1212, an action had been brought in Wisconsin to recover for a wrongful death occurring in Illinois but had been dismissed because the laws of Wisconsin refused to recognize such out-of-State actions. The Supreme Court of the United States, in holding that Wisconsin must give full faith and credit to the Illinois statute, said: “That State [Wisconsin] has no real feeling of antagonism against wrongful death suits in general. To the contrary, a forum is regularly provided for cases of this nature, the exclusionary rule extending only so far as to bar actions for death not caused locally.” The court reiterated this principle by holding that a Federal court, sitting in Illinois, could not refuse to entertain an action based upon the wrongful death statute of Utah. (First National Bank of Chicago v. United Air Lines, 342 U.S. 396, 96 L. ed. 441.) In its opinion, the court said that Illinois had not met constitutional requirements in permitting such actions to be brought only if the defendant could not be served in the State where the cause arose.

It is clear that a State can no longer refuse to entertain wrongful death actions which originate under the laws of a sister State, if, like Illinois, it entertains such actions when they arise under its own laws. Section 2 of our Injuries Act has thus been limited to apply only to suits arising under the laws of the United States or of a foreign country. As a practical matter, this means that it applies only to cases arising under the laws of the United States. But it has also been held that a State cannot discriminate against rights which arise under Federal law, as does the right in this case. (McKnett v. St. Louis and San Francisco Railway Co. 292 U.S. 230, 78 L. ed. 1227.) In effect, therefore, we have here the problem that was presented in the McKnett case. There, by the language of the statute, cases arising under a Federal statute were excluded. Here, by the interplay of judicial decisions, instead of the direct language of the statute, the same discrimination results. “A statute valid when enacted, may become invalid by change in the conditions to which it is applied.” Nashville, Chattanooga & St. Louis Railway Co. v. Walters, 294 U.S. 405, 414. We hold, therefore, that insofar as section 2 of the Injuries Act prevents the bringing of actions within this State to recover damages for wrongful acts resulting in death committed without the State, it is contrary to article VI of the United States constitution.

The defendant next contends that the verdict was not properly supported by the evidence. In order to decide this .question we must first look to the facts of the case. James Allendorf, the decedent, reported for work at 11 :oo P.M. on the night of March 2, 1952, for a normal eight-hour shift, and was assigned as foreman of a switching crew in the defendant’s general classification yard at Gary, Indiana. In addition to the foreman, the crew consisted of an engineer and fireman, who were stationed in the engine, a field man and a head man. It was the crew’s duty to arrange the railroad cars in proper order for their delivery to neighboring industries. To do this it was necessary to go into various tracks located in an area known as the “F” Yard and pull out cars and place them on other tracks. Prior to the accident, the Allendorf crew was working on the track known as the “F” Yard lead, which ran approximately in an east and west direction. Immediately to the north was the “L” Yard lead which ran parallel to and was approximately twelve feet from the “F” Yard lead. Between these tracks were various switch stands, which controlled the movements into the various tracks, and at the far westerly end was located a floodlight tower. Allendorf’s engine was at all times during the course of the evening headed in a westerly direction. Since it was necessary for him to pass signals to his engineer, Allendorf normally stood between the “F” and “L” Yard leads. During the same night, a crew, under the supervision of Francis Fay, was assigned similar duties in the “N” Yard. However, at approximately 2:30 A.M., the Fay crew was sent over to the “L” Yard to remove defective cars from a train that had already been made up. Their job was to “kick” the defective cars down the “L” Yard lead into a different track. Since their engine was also headed in a westerly direction, the Fay crew worked on the north side of the “L” Yard lead. Thus, only the Allendorf crew was located between the “F” and “L” Yard leads. The engines used by both crews were diesel operated, were equipped with both headlights and back-up lights, and could travel with equal ease in either direction. The head man on Allendorf’s crew testified that immediately before the accident a mistake had been made by him and certain cars were placed on the wrong track. He and Allendorf had discussed the matter at approximately 3 :oo A.M. while standing in the center between the two lead tracks “L” and “F,” and as he walked away he turned to see Allendorf’s lantern go down. It was later shown that Allendorf had been struck by the defective cars being kicked down the “L” Yard lead. Others stated that after this conversation, they saw Allendorf’s lantern move a step or two and then fall. The head man further testified that he immediately climbed upon the “F” lead cars and looked in a westerly direction, hoping to see the engine that had shoved the defective cars, but that he saw neither an engine nor its back-up light. Nussle, the engineer in Allendorf’s crew, testified that although he was looking in a westerly direction before the accident, he did not know an engine was working on the “L” Yard lead nor did he see any back-up light. However, both the engineer and fireman of the Fay crew testified that the headlights and back-up lights of their engine were on at all times prior to the accident. There was much conflicting evidence as to whether Allendorf knew that another crew was working on the adjoining “L” Yard lead. Fay, the “L” Yard foreman, stated that he had told his field man to warn the Allendorf crew of the impending movement on the “L” Yard lead. The field man stated he had told a member of the Allendorf crew, but not Allendorf himself. The yardmaster swore that at about 2 :3o A.M. he informed Allendorf that the Fay crew would be kicking cars down the “L” Yard lead. He further testified that later he warned the Allendorf crew by loudspeaker. This was not verified by any member of the crew. The evidence was also extremely conflicting as to the degree of lighting in the accident area. It did show, however, that although the cars which struck Allendorf were neither lighted nor accompanied by any member of the switching crew, such was the usual custom in such operations. Other testimony showed that after allowing for the car overhang, the working distance between the “F” and “L” Yard leads was approximately six and one-half feet.

In order to recover under the Federal Employers’ Liability Act it is necessary to prove that the defendant was negligent and that such negligence was the proximate cause of the accident, in whole or in part. (Tennant v. Peoria and Pekin Union Railroad Co. 321 U.S. 29, 88 L. ed 520.) The plaintiff contended and the jury specifically found that the defendant did not warn the decedent of the intended movement of cars on “L” Yard lead, that the rear light on the Fay engine was not lighted prior to and at the time of the accident, and that the decedent was not himself guilty of negligence. In her complaint the plaintiff had also alleged that the area was improperly lighted and that the defendant had failed to furnish a safe place to work.

Judges are not free to reweigh the evidence and set aside the jury verdict merely because they, as individuals, might have arrived at different conclusions. (Tennant v. Peoria and Pekin Union Railroad Co. 321 U.S. 29, 88 L. ed. 520.) Only where there is a complete absence of probative facts to support the conclusion reached, does reversible error appear. (Starck v. Chicago and North Western Railway Co. 4 Ill. 2d. 616; Bonnier v. Chicago, Burlington & Quincy Railroad Co. 2 Ill. 2d 606; Wetherbee v. Elgin, Joliet and Eastern Railroad Co. 191 Fed. 2d 302.) As the court said in Lavender v. Kurn, 327 U.S. 645, 90 L. ed. 916: “But where, as here, there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the Appellate Court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.” Although the evidence in this case is, upon some points, conflicting, we cannot say as a matter of law that the verdict was not properly supported by the evidence. After considering the record as a whole, we are of the opinion that there was sufficient evidence presented from which a jury could reasonably conclude that the defendant was guilty of the negligence charged and that such negligence was the proximate cause of the decedent’s death.

Defendant further contends that the court erred in admitting in evidence the actuary’s calculations of plaintiff’s projected pecuniary loss, and that since the verdict of the jury closely approximated the sum suggested by the actuary, that testimony was misleading- and warrants reversal of the cause.

Although actuarial calculations were presented in a death case under the Federal Employer’s Liability Act in Starck v. Chicago and North Western Railway Co. 4 Ill. 2d 611, the propriety of that evidence was contested only in a limited respect.

Elizabeth Young, the actuary, is an expert in actuarial work, having specialized in actuarial science at the University of Iowa where she received a degree in that branch of education, and, further, had twenty-four years experience as a consulting actuary. Let us examine her testimony rather fully. On direct examination it was assumed that decedent had a gross income in 1951 of $5542.70, and subtracting from that sum income tax deductions and $50 per month for his personal expenses would leave a net average monthly balance of $378.09. Then Miss Young testified that she had determined the present cash value of future lost monthly contributions of $378.09 over a period of 38 years and 8 months, discounted at 2j4 per cent and at 3 per cent, using the compound discount tables in making her calculations. It was assumed that the $378.09 was the amount that the dependents of the deceased would have received each month had he lived and continued to be employed with the same income.

Over objection Miss Young testified that the present value of such amount for such a period at 2T/2 per cent is $112,904.37 and for 3 per cent the value would be $104,418.69. She further testified that the present value of $1 per month payable at the end of each month for 38 years and 8 months, assuming an interest rate of 3 per cent, is $276.17416. If this sum is multiplied by $378.09, you will have again the sum of $112,904.37. Defendant argues that by the actuary predicating her ultimate results upon a specific sum of $378.09 and for the definite period of 464 months it was tantamount to adding probative value to those figures, thus invading the province of the jury.

It is agreed that it was not within the province of the actuary to testify that the plaintiffs have been deprived of a monthly contribution of $378.09, nor was it within her province to say how long any contribution might continue. If the witness had been asked to quote the value of $1 per month payable at the end of each month for periods of ten, twenty, thirty, forty years, then the jury with the assistance of counsel could project that figure into the future, for however long a period the jury should determine. The salient vice of the challenged testimony is implicit in the likelihood that the jury interpreted the actuary’s presentation as testimony that decedent would continue to work as a switchman for 38 years and 8 months and that his earnings would remain at $5500 per year and that his dependents would receive from him $378.09 per month for that period.

The damage issue cannot be resolved without a consideration of the instructions given to the jury on that subject.

Instruction No. 12 reads as follows: “The jury is instructed that certain mortality tables were received in evidence tending to show the life expectancy of the deceased and of the plaintiff. These tables are not conclusive and are not binding upon you. The deceased may have died before his expectancy of life was reached, and on the other hand he may have lived longer than his expectancy. The plaintiff, may die before her expectancy has been reached or she may live longer than her expectancy. These tables were received as an aid to the jury in determining the probable expectancy of life of the deceased and of the plaintiff, and you are to give them such weight as you find they are entitled to receive in the light of your common sense and experience. The expectancy of life should not be used as a factor by multiplying the years of expectancy by the annual earnings. The award of damages for the loss of future contributions must be reduced to its present cash value and adequate allowance must be made for the earning power of money. You are entitled to consider all factors or circumstances which might tend to increase or decrease the pecuniary loss.”

Instruction No. 17: “The jury is instructed that if you find the plaintiff is entitled to recover from the defendant in this action, that then the plaintiff is entitled to recover such damages as will justly and adequately compensate her and the surviving dependent children of the deceased for the pecuniary loss, past and future, sustained by them on account of his death. In assessing damages, if any, and in determining the pecuniary loss of the widow and minor children, you may take into consideration the age of the widow and minor children, the age of the deceased, the probable expectancy of life of deceased and his widow, his health, his employment, and the amount of money which you find from the preponderance or greater weight of the evidence that it is reasonably certain he would have contributed to his wife in the future and to the children during their minority. In determining the amount of damages, if any, to be awarded for loss of future financial contribution to the widow and children, you are instructed that you are to determine the present cash value of such future lost contributions. The jury is instructed that if you find from a preponderance or greater weight of the evidence and with reasonable certainty that the deceased would have rendered services of a pecuniary or financial value to the plaintiff in the future and to her children during their minority, and if you further find that the plaintiff has established with reasonable certainty that she and her children have been deprived of the benefits of such future services by reason of the death of deceased, then you are at liberty to take into consideration and award fair and just compensation for such services, including counsel, training and guidance, that the minor children of deceased would have received from him during their minority. The present cash value of the benefits of which the widow and children have been deprived on account of the death of deceased, making adequate allowance for the earning power of money, is the proper measure of recovery.”

Instruction No. 27 was as follows: “You are instructed that any award made to plaintiff as damages in this case, if any award is made, is not subject to Federal income taxes, and you should not consider any Federal or state income taxes in fixing the amount of any award made plaintiff, if any you make.”

Instruction No. 29: “You are instructed in estimating the present cash value of any future loss of contributions, you should also consider the fact that all persons do not live to the age of expectancy, and this is particularly true in the case of hazardous occupations such as that of railroading; that they may not work during all the years of their life; that their earnings may not remain stationary and that the reasonably to be expected earnings may not remain stationary and that the reasonably to be expected earnings may vary or diminish in the future.”

Instruction No. 30: “The jury is instructed that the burden of proving the amount of damages that plaintiff may recover is upon the plaintiff and that she must establish the amount of damages by a preponderance or greater weight of the evidence, and with respect to future damages, she must establish the same by a preponderance or greater weight of the evidence to a reasonable certainty.”

It is contended here that since the jury’s verdict so closely approximated the projected result reached by the actuary, that the jury of necessity relied upon the two factors, namely, $378 per month and 38 years and 8 months, as established by the evidence; that by so doing the jury failed to take into consideration many uncertainties in life, namely, that decedent might not have lived 38 years, nor continued to be employed for that period, nor received the same pay throughout, that payments to his dependents would not remain the same after his children became of age, that his personal expenses might exceed $50 per month, etc.

In Turrietta v. Wyche, 54 N.M. 5, 212 P.2d 1041, 15 A.L.R.2d 407, the plaintiff sustained the loss of an arm. The court said this at p. 4x7: “It may be that such testimony is speculative, as asserted by defendant; but no more so than any that has for its purpose the proof of future action or events. It is all problematical at best. It is not questioned that mortality tables are admissible, but possibly not one time in fifty would the life expectancy of any individual come within a year of the actual length of his life. It is, to say the least, problematical whether he would continue to live, continue in health, continue to work, continue to work with much the same effort and ability he has shown in the past, continue to have the desire and the opportunity to work. Also, that the amount of wages paid him and those following his occupation generally in the past, will continue to be paid; that the wage scale will not be materially affected by depression, strikes, inflation, or war; that interest rates will remain much as they are. However ‘speculative’ such testimony may be, it is the best that can be produced to establish earning capacity over a period of years. A jury of twelve average citizens ordinarily can be depended on to assess damages fairly, after they have heard and considered such evidence. The trial court did not err in admitting in evidence the testimony tending to prove plaintiff’s earning capacity. The annuity tables were admissible in evidence to show present values of wages that might have been earned over a period of time, equal to plaintiff’s life expectancy. This court has so held. Johnson v. Santa Fe, 35 N.M. 77, 290 P. 793; Mares v. New Mexico Public Service Co. 42 N.M. 473, 82 P.2d. 257; Chesapeake & Ohio R. Co. v. Kelly, 241 U.S. 485, 36 S. Ct. 630, 60 L. ed. 1117, L.R.A. 1917F, 367; Chase v. Fitzgerald, [132 Conn. 461, 45 A.2d 789 163 A.L.R. 247,] supra.”

The use of annuity tables has received legislative and judicial sanction: Vernon’s Annotated Missouri Statutes, 442.530, Vol. 23, p. 30; Peters v. Kansas City Railways Co., 204 Mo. App. 197, 224 S.W. 25; Wisconsin Statutes (1933), sec. 314.06; Code of Alabama 1953 (enacted Aug. 31, 1953), chap. 11, sec. 277; North Carolina Consolidated Statutes (1919), secs. 1790 and 1791; Vicksburg and Meridian Railway Co. v. Putnam, 118 U.S. 545; Groat v. Walkup Drayage & Warehouse Co. 14 Cal. App.2d 350, 58 P.2d 200; Colusa Parrot Mining & Smelting Co. v. Monahan, 162 Fed. 276, 282 (9th Cir., 1908); Sutherland on Damages, (4th ed.) vol. 2, sec. 455, p. 1476.

To allow an actuary to testify to figures, which the jury might adopt as real, carries with it the danger that the jury will accept them not only as the actuary’s explanation of his process of computation, but also as proof of contribution and life and work expectancy. Anticipating this very danger, the defendant caused the jury to be instructed that the actuary’s testimony was not to be so interpreted. And on cross-examination of Miss Young, it was thoroughly developed that she did not mean to be saying what amount in dollars the plaintiffs would have received had decedent lived, nor for what period of time they would have received the same.

We are of the opinion that the proper method of assisting a jury in making damage calculations is for the actuary to use neutral figures. In the usual situation where hypothetical inquiries are permissible, it is necessary that the expert assume a factual situation as reflected in the proof in order to insure that his testimony bears upon the issue to be determined. The actuary, however, is called upon only to describe to the jury a mathematical process that will simplify the jury’s task of determining the present value of the contribution that plaintiffs would have received had decedent not been killed. To accomplish that purpose it is not necessary that he use figures that correspond with those appearing in evidence, and when he does so there is a danger that the jury may be misled. Once the formula is before the jury, its application to the facts of the case is a matter for argument of counsel.

It is the contention of the appellant here that Miss Young’s testimony was prejudicial because her calculations were predicated upon the figure $378.09 which was in violation of the rule laid down by the United States Supreme Court in the case of Kansas City Railroad Co. v. Leslie, 238 U.S. 599. Therein it was held that the decedent’s contributions to his family are not to be determined by deducting from his gross income an arbitrary amount for his personal expenses. The unchallenged testimony is that Allendorf cashed his pay checks and turned the proceeds over to his wife. He was given an allowance of $50 per month for his personal expenses. Mrs. Allendorf was not cross-examined as to the arrangement. If $50 did not correctly reflect the amount of decedent’s personal expenses, it was defendant’s privilege to adduce proof to the contrary. Defendant argues that the amount spent on insurance premiums was not a contribution to Allendorf’s dependents. The insurance was' to go to his dependents upon his death and it gave them needed security to take care of such eventuality. In Chicago and North Western Railway Co. v. Curl, 178 F.2d 497, 502, it was held that sums paid for railroad retirement are not to be deducted in computing plaintiff’s probable earnings for purposes of an F.EX.A. action.

As we have heretofore mentioned, the verdict of the jury was in excess of the highest figure given by the actuary. Appellee seeks to justify this result. Decedent was a young man 24 years of age — father of twin girls — and a third child was born posthumously. He was thrifty — frequently finding odd jobs in addition to his regular employment ; he was handy with tools and a good workman, capable of making improvements and repairs around the home that they had just purchased. The record shows that decedent was a kind and faithful father. It has been repeatedly held that the jury may award damages for such intangibles as the foregoing because they relate to his earning power and his disposition to continue to contribute to the welfare of his family. In Miller v. Southern Pacific Co. 117 Cal. App.2d 492, 256 P.2d 603, 1955), a verdict of $80,000 was held not excessive even on the assumption that $60,000 . covered the contributions and the pain and suffering for the twenty minutes decedent lived after his injuries. The court said that the other $20,000 could easily be accounted for as the jury’s award to decedent’s children for loss of the care and guidance of a father. The court said at page 613: “The difference, $20,000, readily could be accounted for as the award to Miller’s children for the loss of their father’s care, attention, instruction, training, advice and guidance; not an excessive amount for four children ranging from six to twelve years, bereft of a father who loved them, took a tender interest in them, and possessed the personal qualifications this father exhibited, to lead and guide them throughout the years of their development into the flower of womanhood and manhood.” (Norfolk and Western Railway Co. v. Holbrook, 235 U.S. 625: Giles v. Great Western Railway Co. 72 F. Supp. 493.) In the light of the reasoning found in the Giles and Holbrook cases we are of the opinion that it is unnecessary to undertake to prove the value of the financial loss of such care, etc., anymore than it would be necessary to prove the value of pain and suffering or of inconvenience and annoyance when they are elements of damages. The jury should assess the value of such loss in the exercise of their best judgment based upon the facts of each case. Another intangible element for which recovery is proper is services which the deceased husband may have performed about the home. (Michigan Central Railway Co. v. Veerland, 227 U.S. 59; Alabama Great Southern Railway Co. v. Cornet, 214 Ala. 23, 106 So. 242.) In the case of Ward v. Denver & Rio Grande Western Railroad Co. 96 Utah 564, 85 P.2d 837, the court stated: “The husband’s services in the home often have a pecuniary value which would cost money to replace such as chores, marketing, and the like. In this case the evidence is the plaintiff and her husband had bought a little place eight miles out in the country where they had cows, chickens, pigs and a garden and raised alfalfa; that the deceased did the work attending to the pigs, chickens, etc., besides his railroad work and that when not on duty with the railroad he worked on the place, all this work has a pecuniary value.”

Furthermore the record shows that the deceased was a young man, energetic and ambitious, and at the early age of 24 was earning $5500 per annum. It was within reasonable contemplation that as he progressed in life his earnings would increase. In computing the contributions that the next of kin can reasonably expect the jury may take into account the fact that the deceased was enterprising and industrious and had good prospects for advancement. (Bartlebaugh v. Pennsylvania Railroad Co. (Ohio A.) 78 N.E.ad 410.) Competent statistical data supports a common sense observation that a man so young with so large an income is likely to continue to advance and to enjoy a substantially greater income in the future. See Fig. 4 in Dublin & Lotka, The Money Value of a Man, 65 (Rev. ed. 1946).

There are innumerable cases indicating that recovery is permissible for the full life expectancy even though the deceased might have retired at an earlier age. New York, New Haven & Hartford Railroad Co. v. Zermani, 200 F.2d 240; Fritz v. Pennsylvania Railroad Co. 185 F.2d 31; Atlantic Coast Line Railroad Co. v. McKay, 261 Ala. 66, 73 S.2d 85; Louisville & Nashville Railroad Co. v. Young’s Adm’x, (Ky. App.) 253 S.W.2d 585; Seibert v Litchfield & Madison Railway Co. (Mo.) 159 S.W.2d 612, 618.

Appellee also points out that the testimony of the actuary was needlessly favorable to defendant. Since the trial of the instant case this court has held in Hall v. Chicago and North Western Railway Co. 5 Ill.2d 135, “that the incident of taxation is not a proper factor for a jury’s consideration, imparted either by oral argument or written instruction. It introduces an extraneous subject, giving rise to conjecture and speculation.” The trial court required the actuary to consider present value of future contributions after deduction of income tax. Plaintiff’s attorney acquiesced in this ruling as well as the giving of instruction No. 27. The estimate of the actuary, by deducting income tax, was more than $10,000 less than it would be without such deduction. Furthermore, the actuary’s testimony was based upon future net earnings until the time decedent would have become 65 years of age. According to one mortality table Allendorf’s expectancy was 68.21 years. The age of 65 was used because it is the normal age for railroad retirement. Thus plaintiffs unnecessarily limited their recovery by asking for computation only until age 65.

Both parties herein, in their briefs, seek comfort in the case of Wetherbee v. Elgin, Joliet & Eastern Railroad Co. 191 F.2d 302, but we find it of little value in resolving the problem before us. Therein the court observed that in its opinion an award of $80,000 was excessive and then expressed alarm at the large verdicts currently appearing, and, finding itself powerless to' reverse the case because of the large verdict, proceeded to find a reason to accomplish the same result, and sought refuge in the rationale appearing in Buchanan v. Chicago and North Western Railway Co. 159 F.2d 576. At page 578 this appears: “However, the reviewing court can, if it thinks the verdict is not according to the weight of the evidence, scan the trial more closely for error.” In its search for error the court determined that the jury had failed to follow the trial court’s instructions that damages should be diminished in proportion to the amount of negligence attributable to the decedent, and for that reason alone reversed.

The foregoing considerations of the damage issue converge to this conclusion. Whatever evil might have appeared in the testimony of the actuary, to the prejudice of the defendant, is counterbalanced by the many other advantages as herein outlined. The ultimate question, of course, is not whether the trial was scrupulously free from error, but whether any error which occurred operated to the prejudice of the defendant. It is our opinion that the result in this case would have been no different even had the actuary employed neutral figures in her testimony. The defendant has been afforded a fair trial free of reversible error. The judgment is affirmed.

Judgment affirmed.

Mr. Justice Keingbiee,

dissenting:

I cannot accept the conclusion of the majority that section 2 of our Injuries Act contravenes article VI of the United States constitution.

The relevant provision of that article is the supremacy clause, which says that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” (Ill. Rev. Stat. 1955, p. 4.) The present decision is thought to be required by the rule that “When a state refuses to hear pleas based on federally created rights while it takes cognizance of those created by state law, there may be invalid discrimination because by the Supremacy Clause federal laws are made laws of the state.” United States v. Burnison, 339 U.S. 87, 94, 94 L. ed. 675, 682.

The court relies on three United States Supreme Court decisions. In Hughes v. Fetter, 341 U.S. 609, 95 L. ed 1212, and First National Bank of Chicago v. United Air Lines, 342 U.S. 396, 96 L. ed. 441, the local action was based on the wrongful death statute of another State, and the issue was whether the full-faith-and-credit clause of article IV requires recognition of a foreign cause of action when the law of the forum, on the particular facts, is in conflict with that of the foreign State. In the remaining case, McKnett v. St. Louis & San Francisco Railway Co. 292 U.S. 230, 78 L. ed. 1227, an action under the Federal Employers’ Liability Act was brought in Alabama to recover damages for an injury inflicted in Tennessee by a foreign railroad. Under former Alabama law the courts had no jurisdiction of a suit against a foreign corporation unless the cause of action arose within the State. An Alabama statute of 1907 had restored jurisdiction as to causes of action arising under the law of another State, but left the proscription in effect as to causes of action arising under Federal law. It was held that the constitution prohibits State courts of general jurisdiction from declining jurisdiction solely because the suit is brought under a Federal law. The discrimination, it will be observed, occurred through the election by the State of Alabama to expressly permit an action of the same class to be maintained where it arose under the laws of another State. The decision was not that both must be recognized but that if one is voluntarily permitted the other must be. The question presented to this court is whether the holding in Hughes v. Fetter, compelling Illinois to recognize a cause of action arising under the laws of another State, is equivalent to voluntary choice to do so. Is this State basing a denial of jurisdiction upon the source of law sought to be enforced ? Has Illinois refused to provide a forum solely because the suit is brought under a federal law? Has Illinois “discriminated” against rights arising under federal laws ? I think not.

We are foreclosed by Hughes v. Fetter from questioning whether the full-faith-and-credit clause was meant to give to a mere cause of action the dignity accorded to judgments and other acts of a public nature. As an original proposition it would seem that the law of a State may be given full faith and credit without going so far as to say that every private cause of action thereunder must be enforced in every other State. The constitutional provision establishes a rule of evidence rather than of jurisdiction; and even where a cause of action has been reduced to judgment in the foreign State the clause has been held not to be violated by a statute precluding the maintenance of an action between nonresidents where the cause of action arose outside the State. (Anglo-American Provision Co. v. Davis Provision Co. 191 U.S. 373, 48 L. ed. 225.) The provisions of the full-faith-and-credit clause, it has been said, do not affect the jurisdiction of the court in which a foreign judgment is offered in evidence. (Wisconsin v. Pelican Ins. Co. of New Orleans, 127 U.S. 265, 32 L. ed. 239, 244.) At least in the absence of implications created by Hughes v. Fetter, there are limits to the extent to which the policy of one State may be subordinated to the policy of another. (See Milwaukee County v. White Co. 296 U.S. 268, 273, 80 L. ed. 220, 225-226.) The extent to which the State of the forum shall apply in its own courts a rule of law of another State is itself a question of local law of the forum (see Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 445, 88 L. ed. 149, 158); and the distinction, as to full faith and credit, between foreign judgments and common or statutory-law has long been recognized. 320 U.S. at 436, 88 L. ed. at 154.

But we are not obliged here to determine how far the full-faith-and-credit clause reaches. The source of Illinois’s duty to enforce Federal rights is found, not in the full-faith-and-credit clause, but in the inherent characteristics of the Federal system. (Mondou v. New York, New Haven & Hartford Railroad Co. 223 U.S. 1, 57-58, 56 L. ed. 327, 349.) The grant of power to Congress by the constitution is paramount over all legislative powers reserved to the States, and where concurrent power exists that of the Federal government must prevail. But before a State law can be invalidated on such grounds it must appear (1) that the power in question is possessed by Congress and (2) that it has been exercised. Assuming a Federal power to prescribe jurisdictional requirements for Illinois courts as to the present subject matter (but cf. Minneapolis & St. Louis Railroad Co. v. Bombolis, 241 U.S. 211, 60 L. ed. 961; Bowman v. Lewis, 101 U.S. 22, 25 L. ed. 989, 993,) I cannot see where Congress has purported to exert it. If the Federal Employers’ Liability Act had provided that all actions to enforce rights thereunder must be entertained in State courts, regardless of the place where the wrong occurred, then there would be a conflict between the two statutes; and if such a Federal requirement were valid, the supremacy clause would require the result reached by the court. But the Federal statute does not so provide. (Accord, Douglas v. New York, New Haven & Hartford Railroad Co. 279 U.S. 377, 387-388, 76 L. ed 747, 752.) It deals not with procedural questions but with substantive rights. There is no conflict on the jurisdictional question because Congress has not acted in the field. The opinion of the court does not even attempt to point out how such a command can be inferred from the language of the Federal Employers’ Liability Act, nor can I find anything therein to indicate one. The rule is well established that where there exists a concurrent power of legislation in the States and in Congress, State power remains until the field is occupied by an exercise of the Federal power. It is unaffected by the mere existence of potential Federal action. (Reagen v. Mercantile Trust Co. 154 U.S. 413, 38 L. ed. 1028.) The constitutional requirement is that “any legislation of a state, although in pursuance of an acknowledged power reserved to it, which conflicts with the actual exercise of the power of Congress over the subject of commerce, must give way before the supremacy of the national authority.” (Emphasis supplied.) (Smith v. Alabama, 124 U.S. 465, 473, 31 L. ed. 508, 510.) The proviso in the case at bar offends neither the full-faith-and-credit clause nor the supremacy clause.

Section 2 of our Injuries Act malees no distinction on the basis of the source of the law sought to be enforced. It says nothing, in fact, about the subject. It provides simply that no action can be brought here to recover damages for a death occurring elsewhere. At the time of its enactment and for 48 years thereafter it was never conceived that a State could not, upon rational considerations, decline to entertain these foreign causes of action, whether arising under the laws of another State or under the Federal Employers’ Liability Act. (See Douglas v. New York, New Haven & Hartford Railroad Co. 279 U.S. 377, 387, 73 L. ed. 747, 752.) In the McKnett case, upon which the majority opinion is based, the court expressly recognized that “Congress has not attempted to compel states to provide courts for the enforcement of the Federal Employers’ Liability Act.” (See, also, Mondou v. New York, New Haven & Hartford Railroad Co. 223 U.S. 1, 56-57, 56 L. ed. 327, 349.) Yet this court, because of subsequent federal decisions construing the full-faith-and-credit clause to apply in cases of mere conflict of laws, now accomplishes the very thing which Congress has not even attempted.

It can hardly be doubted that section 2 of our Injuries Act was valid when enacted; that the rationale of Hughes v. Fetter does not operate to impair, ab initio, our injuries statute and the intermediate decisions sustaining its validity. (See Great Northern Railway Co. v. Sunburst Oil & Refining Co. 287 U.S. 358, 364-365, 77 L. ed. 360, 366-367.) Wherein, then, did Illinois “discriminate” against federal causes of action? Aid cannot be found in cryptic references to “the interplay of judicial decisions.” The practical difference of treatment arose from the decision of the United States court in Hughes v. Fetter, not from action or choice by this State, whose statute makes no distinction whatever. Under such circumstances I think we would be warranted in giving effect to the statute in so far as its application is not limited by that decision.

Fifty years ago this court, in a well-reasoned opinion, concluded on similar facts that the proviso in question is valid, and that the circuit court had no jurisdiction. That decision, Walton v. Pryor, 276 Ill. 563, is now overruled because an “interplay of judicial decisions” has compelled our courts to take jurisdiction of actions arising under the laws of other states, and has prohibited a state from discriminating against actions arising under federal law. To continue applying the statute, except in so far as its application is precluded by the Hughes v. Fetter interpretation of the full-faith-and-credit clause, is not in my opinion a discrimination by Illinois. In effect the present holding amounts to an amendment of the federal statute to enlarge the jurisdiction of our courts, and an interpretation of the supremacy clause to require enforcement of the “amendment.” Federal supremacy should not be stretched that far. I think some vitality still remains in the rule that “Each State, subject to restrictions of the Federal constitution, determines the limits of jurisdiction of its courts, the character of the controversies which shall be heard in them, and how far its courts having jurisdiction of the parties shall hear and decide transitory actions where the cause of action has arisen outside of the State.” Wall v. Chesapeake & Ohio Railway Co. 290 Ill. 227, 231.

The presumption is that the statute in the case at bar is valid. One who challenges its validity assumes the burden of showing, upon rational grounds, that it violates some constitutional provision. This burden, in my opinion, has not been satisfied here.