author: Mr. Justice Dady

text:
    Vaughn R. Shellabarger, Individually and for use of Michigan Fire and Marine Insurance Company, Appellees, v. F. J. Jacobs, Appellant.
    Gen. No. 9,348.

      Heard in this court at the October term, 1942.
    Opinion filed October 29, 1942.
    Carson & Appleman, of Urbana, for appellant; John Alan Appleman, of Urbana, of counsel.
    Edwin W. Sale, of Champaign, for appellees.
   Mr. Justice Dady

delivered the opinion of the court.

This appeal is presented on an agreed statement of the facts submitted and procedure adopted in the trial court.

The case grows out of an automobile accident.

Plaintiff will be referred to as “Shellabarger,” The Michigan Pire and Marine Insurance Company as “Mich. Ins. Co.,” the defendant as “Jacobs,” and Union Indemnity Company as “Indemnity Co.”

On June 13, 1940, the automobiles of Shellabarger and Jacobs collided with each other while traveling in opposite directions. Shellabarger carried insurance in the Mich. Ins. Co., with $25 deductible. Jacobs carried insurance in the Indemnity Co.

On July 6th or 9th Shellabarger settled with the Mich. Ins. Co., as his insurer, for the sum of $350 and gave such company a written subrogation receipt signed by him, by which he subrogated such company to all of the rights, claims and interests which he might have against any person or corporation for his loss and authorized such company to sue therefor in his name. Such receipt was admitted in evidence and is dated July 9,1940. Shellabarger testified he executed the same in blank on July 6th, and thereafter received the $350. There is a dispute as to whether he signed such receipt on July 6th or 9th, but we consider the difference in dates immaterial.

On July 8, 1940, Shellabarger executed and gave to one Palmer, as agent for the Indemnity Co., a general release, releasing Jacobs from all liability, and Shellabarger received therefor $130 from the Indemnity Co.

On May 10, 1941, this suit was filed in the circuit court by Shellabarger for the use of Mich. Ins. Co. to recover damages in the amount of $350 for alleged damages to Shellabarger’s automobile as a result of such collision. The complaint set up such subrogation receipt.

On June 5,1941, Jacobs filed his motion to strike the complaint and dismiss the suit on the ground that Shellabarger had executed such general release. This motion was heard and taken "under advisement by the court on July 11, 1941. On such hearing Shellabarger disaffirmed such release on the ground that he was a minor at the time he executed it, and he so testified. He did not and has not tendered back to Jacobs or the Indemnity Co. any part of the $130 he so received.

On June 10,1941, Jacobs filed a counterclaim and demand for jury trial. On July 14, 1941, Shellabarger filed his answer to the counterclaim. On August 5, 1941, the court denied the motion to strike and dismiss.

Thereafter, over the objection of Jacobs and of Shellabarger as such counter-defendant, the court, on its own motion, severed the trial on the complaint and counterclaim, setting the complaint for trial before the court and the countercomplaint for trial before a jury.

On October 22, 1941, a jury found in favor of Shellabarger as counter-defendant, and judgment was entered in his favor as counter-defendant.

On November 4, 1941, Jacobs filed a plea of setoff and recoupment in the matter of the complaint.

On November 19, 1941, Shellabarger, individually, filed an amendment to the complaint adding a count for personal injuries received by him in the collision. The answer of Jacobs filed to the original complaint was ordered to stand as his answer to the complaint as amended.

On November 19, 1941, the court, without a jury, heard evidence in support of the complaint as amended. The court found for Shellabarger individually in the amount of $130, and under the plea of setoff and recoupment found in favor of Jacobs in the amount of $130, so that one finding balanced the other. The court found in favor of Shellabarger for the use of Mich. Jns. Co. in the amount of $275. Thereafter judgment was entered on such findings.

Jacobs contends the court erred in denying him a jury trial on the hearing of the complaint as amended. It will be noted that he filed his motion to dismiss on June 5th, which amounted to a general appearance. He did not file any jury demand until June 10th, which was five days after he had entered such general appearance by filing the motion to dismiss. Section 64 of the Civil Practice Act (ch. 110, Ill. Rev. Stat. [Jones Ill. Stats. Ann. 104.064]), provides that “A defendant desirous of a trial by jury shall make such demand and file the same at the time of filing Ms appearance; otherwise such party shall be deemed to have waived a jury. ’ ’ The court did not err in denying such motion of Jacobs for a trial by jury. (Standard Oil Co. v. Town of Patterson, 300 Ill. App. 385.)

Jacobs, next contends that because of the general release Shellabarger had no right to disaffirm the release and that Shellabarger, both individually and for the use of the Mich. Ins. Co., is barred from any recovery.

Under tMs contention Jacobs claims that the court erred in admitting in evidence a copy of the purported birth certificate on the ground that a proper foundation had not been laid for its admission. This certificate purported to show that Shellabarger was born in Tennessee on October 19, 1919. This ruling of the court we consider immaterial for the reason that Shellabarger was competent to testify as to his age. (People v. Pennell, 315 Ill. 124; Raymond v. People, 226 Ill. 433.) He testified that at the time he signed the general release he was aged 20 years, and there was no testimony to the contrary.

It is claimed that both Shellabarger and Mich. Ins. Co. were guilty of fraud in inducing Jacobs, through the Indemnity Co., to pay the $130 which Shellabarger received at the time of the execution of the general release.

As to the Mich. Ins. Co. it appears that on June 13, 1940, Shellabarger executed and forwarded to the Indemnity Co. an instrument labeled “Claimant’s Report” and “Personal Injury Report.” He testified that the handwriting on such instrument, except his signature, was the handwriting of one Estergard, that Estergard worked for the System Finance Company in its offices, and that the System Finance Company were agents of the Mich. Ins. Co. Estergard thus aided Shellabarger in filling out the blank places in the report. In such report Shellabarger’s age was written in as 21 years. It is claimed that in so giving such age Shellabarger was guilty of a fraud, and that the Mich. Ins. Co., through Estergard, aided in the perpetration of such fraud. This is the only basis for any claim of fraud against the Mich. Ins. Co. The fact that Estergard was employed in the office of the System Finance Company and that the latter were agents of the Mich. Ins. Co. does not prove that Estergard was an agent of the Mich. Ins. Co. Assuming that he was in fact such an agent, there is no evidence tending to prove that in helping Shellabarger fill out such report he, Estergard, was acting within the scope of his authority as agent for the Mich. .Ins. Co. Moreover, there is no evidence showing or tending to show that Estergard knew the age of Shellabarger, except as he was advised by the latter. We find no evidence tending to prove Mich. Ins. Co. guilty of any fraud.

As to Shellabarger, we do not find any evidence tending to show that Shellabarger wilfully or fraudulently misrepresented his age in so filling out and forwarding such report.

Being in fact a minor at the time of executing such general release, Shellabarger had two years after he became of age within which to disaffirm such release. (Chicago Tel. Co. v. Schulz, 121 Ill. App. 573; Wright v. Buchanan, 287 Ill. 468.) Inasmuch as Shellabarger was in the army it is claimed he was emancipated. Emancipation did not prevent him from asserting the right to disaffirm. (Wuller v. Chuse Grocery Co., 241 Ill. 398.) If a minor has lost or expended the consideration so that he cannot return it, he is not bound to make restitution before commencing suit. (Wuller v. Chuse Grocery Co., supra.) Shellabarger testified that he did not have in his possession or control any of the $130 he received on the general release. There was no testimony to the contrary. This testimony we believe was sufficient to justify the trial judge in believing that it was not within the power of Shellabarger to make any restitution.

In 27 Am. Jur. 773, it is said, “After an infant has disaffirmed a contract, anyone may take advantage of such disaffirmance.”

It is our opinion that Shellabarger had a lawful right to disaffirm this release, and that when he did disaffirm the same it at once became null and void and did not bar Shellabarger from a recovery either individually or for the use of the Mich. Ins. Co.

The judgment of the circuit court is affirmed.

It has been necessary for the appellees to file an additional abstract. The cost of such abstract will be taxed against the defendant appellant.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    American Surety Company et al., Appellants, v. Paul F. Jones, Appellee.
    Gen. No. 9,355.

      Heard in this court at the October term, 1942.
    Opinion filed October 29, 1942.
    Gillespie, Burke & Gillespie, of Springfield, for appellants; Edmund Burke and George B. Gillespie, both of Springfield, of counsel.
    George F. Barrett, Attorney General, for appellee.
   Mr. Justice Dady

delivered the opinion of the court.

On July 26,1941, the plaintiffs, seventeen in number, filed in the circuit court of Sangamon county their petition, herein referred to as a petition for review, basing their right to file the same and for relief on the Illinois Insurance Code (Ill. Rev. Stat. 1941, ch. 73 [Jones Ill. Stats. Ann. 66.199(1) et seq.]), particularly on secs. 114 and 407 thereof.

The circuit court allowed the motion of defendant to strike such petition and dismissed the same on the ground that the plaintiffs were not such companies as might maintain a petition for review under such sec. 407. This appeal' is from such order of the circuit court.

The petition for review alleged that at all of the times in question the plaintiffs were insurance companies organized and existing under the laws of States other than Illinois, duly licensed and authorized to conduct the business of surety insurance in this State, and that their business in this State is large and extensive.

The petition for review further alleged that on June 7, 1941, the plaintiffs filed with the defendant as director of insurance, hereafter styled “Director,” their verified petition; that such petition of June 7th, in addition to alleging the foregoing facts, averred and set forth: That on July 1, 1940, the director issued to underwriters at Lloyds, hereafter styled “Lloyds,”— (having its home office and principal place of business in London, England), a purported certificate of au-„ thority to transact surety insurance business in this State, that under the conditions prescribed by see. 114 of such code, Lloyds, upon payment of the annual privilege tax imposed by the code and without application therefor, would obtain a certificate of authority to transact surety insurance business in this State until June 30, 1942; that petitioners would be aggrieved by the issuance of such certificate in this that Lloyds had not, as required by the code, made and maintained in this State deposits, and maintained in this or any other State in which Lloyds was authorized to transact business, cash or securities.

The petition for review further alleged that the petition of June 7th asked that the petitioners therein be heard by the director in the matter of the issuance to Lloyds of such certificate of authority to transact business in this State during the period beginning July 1, 1941.

The petition for review further alleged that on July 1, 1941, the director issued his order or decision in which he advised the plaintiffs that it was his opinion that Lloyds had duly qualified and would be entitled to a certificate of authority to transact its business in this State, that the issuance of such certificate to a company “is a matter of compliance with the law by the applying company,” and that “other companies that may be licensed to transact the same kind of business that the applying company is seeking to transact are not proper parties to be heard on the application of such applying company.”

The petition for review further alleged that on July 1, 1941, the director issued a purported certificate of authority to Lloyds to transact such surety insurance business, that the plaintiffs were aggrieved by such order and decision of the director and by the issuance of such certificate in this, that the same was issued without requiring Lloyds to maintain in this or any other State cash and securities, or make deposits of underwriters, or to file a copy of a trust or other agreement, as required by the code.

The petition for review prayed that such order and decision of the director be set aside and that the certificate of authority so issued to Lloyds be declared of no force and effect.

The material parts of such code are as follows:

Section 114,
“ (1) The Director shall renew for one year the certificate of authority of a foreign or alien company on the first day of July of the calendar year following the calendar year in which it is admitted to transact busi-. ness in this State and annually thereafter, without application by the company, upon payment of the annual privilege tax imposed by this Code, if any, provided the Director is satisfied that
“(a) none of the facts specified in this article as grounds for revoking a certificate of authority exists; and
“ (b) the company is complying with the conditions for admission, except for surplus requirements in excess of those which similar domestic companies transacting the same kind or kinds of business are required to maintain.
“(2) Except in case of non-payment of taxes, the Director shall give notice of his intention to refuse to renew the certificate of authority of a foreign or alien company and the grounds therefor at least twenty days before the end of the term for which the existing certificate was issued, and, the company shall be given an opportunity for a hearing before the end of such term.”
Section 201,
“No order, judgment or decree enjoining, restraining or interfering with the prosecution of the business of any company, . . . shall be made or granted otherwise than upon the petition of the Director ... as provided in this article, . . . .”
Section 407,
“(1) Any order or decision made, issued or executed by the Director, . . . whereby any company or person is aggrieved, shall be subject to review by the Circuit Court of Sangamon County or the Circuit or Superior Court of the county in which the principal office in this State of the company aggrieved by such order or decision is located, or where the person so aggrieved resides. A petition for the review of the action of the Director shall be filed within thirty days from the date of the service of a copy of the order or decision made by the Director upon such company or person. A copy of such petition for review as filed with and certified to by the Clerk of such Court shall be served upon the Director or in his absence upon some one in active charge of the Department of Insurance within five days after the filing thereof. If such petition for review is not filed within the said thirty days the parties aggrieved shall be deemed to have waived the right to have the merits of the order or decision reviewed and there shall be no trial of the merits thereof by any court to which application may be made by petition or otherwise, to enforce or restrain the enforcement of the same.
t e
•“(3) The court shall have jurisdiction to affirm or to set aside the order or decision of the Director and to restrain the enforcement thereof.”

Defendant contends that because of the provisions of sec. 201 this proceeding cannot be maintained by plaintiffs. In the view we take of the case we do not consider it necessary to pass upon or discuss the effect of such section.

Plaintiffs contend the director issued a certificate to Lloyds without authority because Lloyds had failed to comply with certain requirements of the code as set out in their petition, that they were aggrieved by the issuance of such certificate because it deprived them of the right to be free from competition of a company that had not complied with the provisions of the code, and that this right to be free from such competition gave them a direct interest in the matter of the issuance of such certificate of authority to Lloyds. Their interest, they contend, entitled them to do two things, first, to intervene and be heard before the director as prayed for in their petition, and, second, if unsuccessful in opposing the certificate to Lloyds, to file a review under sec. 407.

In determining the questions at issue, it is necessary to consider the subject matter presented to the director for decision. He was called upon to renew Lloyds’ certificate of authority under the provisions of sec. 114 of the code. No language in such section, either by express inclusion or by fair implication or otherwise, authorizes a rival insurance company to intervene or be heard in the matter of the issuance of a renewal of a certificate of authority held by another company. The procedure for renewing a certificate of authority is simple and explicit. If the director is satisfied that a company, having a certificate the renewal of which is under consideration, has complied with the conditions required, then upon payment of the annual privilege tax he renews such certificate without application by such company. It is only in case the director intends to refuse to renew such a certificate that any notice or hearing is required. In such case the notice is to be given and the hearing granted only to the company having a certificate which the director intends to refuse to renew. The language of sec. 114 indicates that no other party to the proceeding of renewal is contemplated.

The plaintiffs not having any direct interest or concern in the proceedings of the director in issuing to Lloyds a renewal certificate under sec. 114, the question still remains as to whether or not they can be said to be aggrieved within the meaning of sec. 407.

As we construe sec. 407, the only company or person entitled thereunder to file a petition for review is a company or person whose rights are directly passed upon and affected by such order or decision of the director, and in this case the only person or company directly affected was Lloyds. We believe that the language in sec. 407, “Any order or decision . . . whereby any company or person is aggrieved, shall be subject to review by the Circuit Court of Sangamon County or the Circuit or Superior Court of the county in which the principal office in this State of the company aggrieved by such order or decision is located, or where the person so aggrieved resides,” indicates a definite person or company is contemplated as the person or company directly aggrieved, as distinguished from all companies and persons indirectly even though substantially affected or aggrieved. Section 407 provides that the time for filing a petition for review shall expire 30 days “from the date of the service of a copy of the order . . . upon such company or person.” Manifestly this language indicates or contemplates that a copy of the order of the director shall be served by the director upon the company or person having a matter pending for disposition before such director, and not upon any other company or companies that might be indirectly interested in or affected by such order. It will be noted that the last sentence of par. 1, sec. 407 provides “That if such petition for review is not filed within thirty days the parties aggrieved shall be deemed to have waived the right to have the merits of the order or decision reviewed, and there shall be no trial on the merits thereof by any court to which application may be made by petition or otherwise to enforce or restrain the enforcement of the same.” This language, we believe, indicates that the party aggrieved is the party directly affected by and served with such copy of the order of the director, and not other parties, such as the plaintiffs, who are not required to have and might not in fact have any notice of the action of the director.

The evident purpose of sec. 407 was to give a company directly affected by the decision of the director a quick and inexpensive judicial review. When the legislature used the word “aggrieved,” it did not intend to include every prejudice however remote or incidental which might follow from a decision of the director. In Glos v. People, 259 Ill. 332, the court defined the word “aggrieved” in the following language: “A person is prejudiced or aggrieved, in the legal sense, when a legal right is invaded by the act complained of or his pecuniary interest is directly affected by the decree .or judgment. . . . ‘Aggrieved’ means having a substantial grievance; a denial of some personal or property right.”

The director’s order in renewing Lloyds’ certificate did not directly, in our opinion, affect the interests of the plaintiffs. None of their certificates of authority were involved in the decision made by the director. No order or decision was directed against any of them. The prejudice which might result to plaintiffs from competition by Lloyds was at most an indirect result of the director’s decision and of his issuance of the renewal certificate.

The filing of a petition for review under sec. 407, although strictly not an appeal, is in the nature of an appeal or writ of error. Its purpose is one of review. It has been generally held that before a person not a party to the record can sne ont a writ of error, he must have a direct interest in the subject matter of the litigation which is prejudiced or aggrieved by the judgment sought to be reviewed. The principles governing such cases, we believe, are applicable here in interpreting the language of sec. 407. Mere injury or prejudice of some kind is not the test.

In White Brass Castings Co. v. Union Metal Mfg. Co., 232 Ill. 165, stockholders of a corporation who were not parties to a suit resulting in a judgment against a corporation, attempted to sue out a writ of error in their own names to reverse the judgment. The court held that the stockholders were not shown by the record to be prejudiced by the decree; that the prejudice which will authorize the suing out of a writ of error must be such that the person suing out the writ takes or loses something directly by the judgment or decree. In referring to the interest of the stockholders in the subject matter of litigation, the court said: ‘ ‘ The indirect interest arising from the fact that the value of their stock may be increased or diminished by a judgment or decree against the corporation does not authorize each one, or a majority or all of the stockholders, in their own names, to prosecute a writ of error to reverse such judgment or decree.”

In Leland v. Leland, 319 Ill. 426, a corespondent in a divorce suit sought to sue out a writ of error to review a decree granting a divorce. The court held that his interest in the subject matter of the suit was not sufficiently direct to authorize such a writ in his behalf, and said: “In the present case the subject matter of the litigation was the marital relations existing between defendant in error and his wife, Charlotte, in which subject matter plaintiff in error had no interest. The only direct result of a decree entered in favor of defendant in error in the cause would be a severance of those relations. "Whether or not defendant in error and his wife remain husband and wife or whether they shall be divorced is a matter in which plaintiff in error can have no direct interest or concern. It is true that he may be injured in his reputation by the evidence in the case or by the finding of the court upon which the decree is based, but such injury is not the direct result of the decree itself.”

Another case supporting the conclusion that the prejudice, if any suffered by the plaintiffs, would be indirect, is People ex rel. Attorfer v. City of Peoria, 378 Ill. 572, which was a mandamus suit to compel the issuance of a building permit to the petitioner. The petition was directed against the city and its building commissioner. The court awarded the writ and ordered the building commissioner to issue a permit authorizing the petitioner to build a certain building on his property. Fifty-one neighboring property owners sought to sue out a writ of error to review the judgment on the ground that they had a direct financial interest in the result of the litigation, namely, the erection of the contemplated market on the property of the petitioner would cause great depreciation in the values of their residences. In holding that they did not have a sufficient interest to sue out such a writ, the court said: “Admittedly, the intervenors do not have any interest in plaintiff’s property and it appears that their repeated attempts to intervene constitute a continued effort to change the character of this action from a mandamus action to a suit in equity. The single question presented for decision in the circuit court was the propriety of the denial by the commissioner of building’s of a building permit to plaintiff incident to the proposed use of his property for commercial purposes. The contiguous and neighboring property owners were not necessary parties. As members of the general public they were fully represented by the defendants whose interests, objectives and defenses were precisely the same, namely, sustaining the enforcement of the challenged zoning ordinance. (Kennedy v. Town of Normal, 359 Ill. 306.) Such interest as the intervenors may have in the outcome of the litigation is speculative, theoretical, inconsequential and remote rather than a direct, immediate and substantial interest. In contemplation of law, they are not injured by the judgment ordering the issuance of the writ of mandamus.” See also Hotchkiss v. City of Calumet City, 377 Ill. 615; People v. Lower, 254 Ill. 306.

We hold the prejudice or aggrievement, if any, sustained by the plaintiffs, was not direct as required by sec. 407, but merely indirect and incidental, and could not serve as a foundation for a petition for review.

Much space is devoted in plaintiffs’ brief to the argument that serious consequences will result if plaintiffs are not permitted to take advantage of sec. 407 as aggrieved companies, in that there will be no protection against arbitrary action on the part of the director in issuing certificates of authority without requiring a compliance with the code. The language used by the legislature is plain. It is the safest guide in construing the sections involved. This court has no right to read into the statute words that are not found therein, either by express inclusion or by fair implication. (Illinois Cent. R. Co. v. Village of South Pekin, 374 Ill. 431.) The act of the director in renewing the certificate of authority was not judicial. The courts of this State have held that the authority to grant or revoke a license by an executive officer without any provision for judicial review does not violate due process. (People v. Ryan, 371 Ill. 597.) The failure of the statute in this case to provide parties situated as are the plaintiffs, a remedy under sec. 407 cannot be aided by judicial interpretation. (Universal Credit Co. v. Antonsen, 374 Ill. 194.)

For the reasons indicated the judgment of the circuit court is affirmed.

Judgment affirmed.


author: Mr. Justice Hates

text:
    Irvin E. Ellrod, Also Known as E. I. Ellrod, for use of Alvin Bernstein, Appellee, v. Merchants Fire Insurance Company of Denver, Colorado, Appellant.
    Gen. No. 9,349.
    Heard in this court at the October term, 1942.
    Opinion filed October 29, 1942.
    Mann & Stifler, of Danville, and Asa S. Chapman, of Champaign, for appellant.
    O. L. Browder and Green & Palmer, all of Urbana, for appellee.
   Mr. Justice Hates

delivered the opinion of the court.

This is an appeal from a judgment rendered against the Merchants Fire Insurance Company of Denver, Colorado, as a garnishee, in favor of Irvin E. Ellrod for the use of Alvin Bernstein, in the sum of $697.51. Bernstein is the assignee of a judgment which the receiver of the Urbana Banking Company had obtained against Irvin E. Ellrod on which judgment an execution was issued and returned “no property found.” Bernstein then filed a suit in garnishment in the name of Ellrod, nominal plaintiff, for his own use against the defendant insurance company in the circuit court of Champaign county.

It appears from the record that on December 16, 1935 Irvin E. Ellrod was the owner of a tavern, and on that day mortgaged the furniture and fixtures located therein to his brother-in-law L. B. Walton to secure sixteen hundred dollars. Three years later to the day (December 16, 1938), the chattel mortgage became due and Ellrod and Walton met to consider the matter. At that time Ellrod had paid off five hundred dollars, leaving the balance due of eleven hundred dollars. Walton testified that he considered the chattel mortgage outlawed at the end of three years and gave it back to Ellrod and took what he called a conditional sales contract. There was nothing disclosed by the evidence that Walton ever foreclosed his chattel mortgage or took'possession of the chattels. The evidence, to the contrary, shows that during all this time Ellrod was in the actual possession of the furniture and fixtures. On October 22, 1940 Ellrod obtained a fire insurance policy from the defendant upon the chattels in question which policy contained the following provisions: I. “This entire policy shall be void if the. insured has concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof; or in case of any fraud or false swearing by the insured, touching any matter relating to this insurance or the subject thereof, whether before or after a loss.” 2. “This entire policy shall be void unless otherwise provided by agreement in writing added hereto, (a), if the interest of the insured be other than unconditional and sole ownership.” 3. “Unless otherwise provided by agreement in writing added hereto, this company shall not be liable for loss or damage to any property insured hereunder while incumbered by a chattel mortgage.” On March 25, 1941 a fire occurred at the tavern operated by Ellrod, and the property in question was destroyed. Ellrod and an adjuster for the insurance company agreed on the amount of the loss as being $697.51. Ellrod filed a proof of loss with the adjuster in that amount verified by his affidavit. The defendant claims it is not liable on the policy because Ellrod was not the sole and unconditional owner of the property insured, and that the property was subject to the chattel mortgage of Walton or to a lien created by the conditional sales contract which was taken in lieu of the chattel mortgage.

The only evidence in the case on the question of the existence of a chattel mortgage during the life of the insurance policy is the testimony of Walton to the effect that at the end of three years he surrendered the chattel mortgage to Ellrod and considered it outlawed. This was at a time several months prior to the issuance of the fire insurance policy in question. What Walton calls a conditional sales contract seems to be an instrument that was on a printed form to be used for the time payment sales, which recites L. B. Walton, seller, and I. E. Ellrod, purchaser, itemizing the chattels “for $1100.00 on or before delivery, leaving a Deferred Balance of $1100.00 payable at the office of L. B. Walton, May-view, Illinois, in no equal successive monthly installments on the same day of each month and commencing one month from the date hereof.” It then contains several pages of printed matten From reading the instrument it is apparent that the parties simply took a printed form of conditional sales contract, attempted to fill it out, and made a bad job of it. The circumstances surrounding these two men at the time they executed this instrument show that the prior chattel mortgage by agreement of both of them was surrendered and terminated. There was still $1,100 due to Walton from Ellrod. They did not go to a lawyer. They were friendly and attempted to handle the matter themselves. Ellrod was in possession of the chattels as owner, and Walton desired security and an acknowledgment of the debt from Ellrod. Walton was not the owner of the chattels in question at the time of the execution of the purported conditional sales contract, and had never been in possession of the same.

The instrument is lacking in the necessary essentials to make it a valid conditional sales contract. It fails to provide a definite time for the payment of the purchase price and when the title would pass from the vendor to the vendee. It is also fatally defective by reason of the fact that Walton, the purported vendor, did not have title to the property at the time of its execution. Walton could not sell what he did not own. First State Bank of Shannon v. Harter, 301 Ill. App. 234.

We cannot hold that this instrument created such a lien on the property in question as would cause a forfeiture of the fire insurance policy. It appears that the insurance company collected the premium. There is no claim that the fire or the loss resulting was other than an honest one. An invalid or void instrument does not constitute such an incumbrance as is defined in the language of the policy to cause a forfeiture. Fuller v. Maryland Ins. Co., 254 Ill. App. 248.

For the reasons set out herein the judgment of the circuit court of Champaign county is affirmed.

Judgment affirmed.


author: Mr. Presiding Justice Matchett

text:
    George Craig Stewart, Bishop, Deceased. Wallace Edmonds Conkling, Bishop, Appellant, v. Arthur T. McIntosh, Appellee.
    Gen. No. 42,074.
    Heard in the first division of this court for the first district at the December term, 1941.
    Opinion filed October 30, 1942.
    Rehearing denied November 12, 1942.
    Mason & Mason, of Chicago, for appellant; George A. Mason, of Chicago, of counsel.
    Bluford, Krinsley, Schultz & Voorheis, of Chicago, for appellee; Raymond H. Schultz, Victor Hedberg and David C. Kenyon, all of Chicago, of counsel.
   Mr. Presiding Justice Matchett

delivered the opinion of the court.

This controversy had been before us on a former appeal. (291 Ill. App. 65.) There the action was brought by George Craig Stewart, as Bishop. The present plaintiff, Bishop Conkling, is his successor. In our opinion in the former case the facts are stated.

There the plaintiff sought to recover upon the theory that defendants, by blank indorsements made on certain writings, which were neither negotiable instruments nor promissory notes, had become obligated to pay the amount stated in these writings. The trial court held the plaintiff could not recover on these indorsements and we affirmed the judgment. Plaintiff petitioned the Supreme Court for leave to appeal, which was denied. (291 Ill. App. xli.)

Thereafter Bishop Conkling, plaintiff, began this suit to recover payment upon what is claimed to be a different theory from that presented in the prior case. The present case was tried in the circuit court without a jury and judgment was for the defendant McIntosh, and plaintiff appeals. The evidence on this trial was the same as that on the prior trial.

Defendant says, among other things, that the final judgment in the prior case is a complete and effective bar to any recovery by the plaintiff in the present case, citing Godschalck v. Weber, 247 Ill. 269, 274, where the rule is stated that the doctrine of res judicata “extends not only to the questions which were actually decided in the former case, but to the whole controversy,— to all matters properly involved which might have been raised and determined, and to all grounds of recovery or defense which the parties might have presented, whether they did so or not.” Other cases are to the same effect. Plaintiff seeks to come under exceptions to this rule, such as were successfully invoked in Austin v. First Trust é Savings Bank, 343 Ill. 406, but examination of the opinion in that case shows that different facts were considered than those presented in the instant case.

Even if the rule of res judicata did not apply, the theory now presented, which plaintiff says is new, does not support his claim. Plaintiff relies upon an application for a loan of $30,000 presented by McIntosh and Hannah to the State Bank of Chicago. This loan, as stated in our former opinion, was to pay a prior mortgage indebtedness of $30,000 which matured May 1, 1928. The value of the lot was placed at $75,000, — no value on the improvement. Plaintiff’s argument seems to be that when this application for a loan was presented to the bank and accepted by it, and the note and trust deed subsequently purchased by the Bishop’s Benevolent Fund, defendant became obligated to pay “the loan indebtedness” to plaintiff, and that the note dated May 1,1928 for $30,000, signed by Chicago Title & Trust Co., as trustee, with the trust deed, was collateral to secure this payment. Plaintiff’s brief says: “ . .. the plaintiff is the bona fide owner of the loan indebtedness and is the pledgee of the collateral notes and trust deed securing the loan.” We are of the opinion that a complete answer to this is the fact, as shown by the record, that when the application for the loan was made and consummated, May 1, 1928, plaintiff had no account with the State Bank of Chicago and did not have any account until many months thereafter, namely February 11, 1929. The obligation to pay ran to the bank and not to plaintiff, who did not come into the picture until later.

As stated in our former opinion, the note and trust deed were signed by the Chicago Title & Trust Co., as trustee, and not by either McIntosh or Hannah. When the State Bank discharged the prior mortgages aggregating approximately $30,000 and received the new note and papers dated May 1, 1928, it made no. entry in its books or records that it received any other assets than these papers, nor is it shown that the bank held the note and trust deed as collateral to any loan to Hannah or McIntosh. When the bank on May 1, 1928 received these papers they were transferred to the trust department of the bank and remained there as part of the assets of the bank until they were sold by the bank to the Bishop.

When the Chicago Title & Trust Co., as trustee, executed the paper it was expressly provided therein that no liability should attach to the Chicago Title & Trust Co., either individually or as trustee, or to the beneficiaries of the trust, and the obligations were secured only by the premises conveyed in the trust deed. The note expressly provides: “In case of default in the payment of this note or of any instalment of interest the sole remedy of the holder hereof or of any of the interest coupons hereto attached shall be by foreclosure of the said trust deed.”

These papers were carried by the bank in its bond department as an asset for many months, during all of which time the bank was the sole obligee, entitled to recover on the note and trust deed, with the limitations above stated. All the preliminaries were merged in the trust deed and note. There was no underlying loan obligation or any other obligation than contained in the provisions of these papers.

On February 11, 1929 Bishop Anderson, predecessor of plaintiff, delivered to the State Bank, as trustee, $150,000 with power to the trustee to invest and reinvest the same from time to time as good judgment might dictate. Two days thereafter, namely on February 13, 1929, the note and trust deed in question were purchased with funds from this Bishop’s Benevolent Fund, so that on that date, for the first time, the Bishop’s fund became the obligee of the indebtedness evidenced by these papers and subject to the limitations contained therein.

Defendant McIntosh was a beneficiary of the Chicago Title & Trust trust estate, and any liability on his part was expressly excluded by the terms of the trust deed and note in question. The law will not impose an implied obligation on any person contrary to an express undertaking. Walker v. Brown, 28 Ill. 378; Ford v. McVay, 55 Ill. 119; Witkowsky v. Affeld, 283 Ill. 557. This court has already discussed this point in a case where the theory of the plaintiff was virtually the same as the theory of the plaintiff in the present case. (Jetzinger v. Metcoff, 294 Ill. App. 616 (Abst.) In that case the beneficiaries of the trust had authorized and directed the trustee, which held the title, to execute the note, as in this case. It was there argued that the trustee in doing so was acting merely as the agent of the beneficiaries and that they were therefore liable. We held that by the written provisions of the note and trust deed personal liability was excluded. We hold that there is no implied obligation on the part of the defendant McIntosh, individually, by reason of the facts above stated.

Plaintiff complains of the action of the trial court in denying his motion to file an amended complaint. The matters sought to be incorporated in the amendment were merely a repetition of the claims already made, namely, that by reason of the facts and circumstances the defendant personally was liable. Moreover, the motion to amend was made after a full hearing of the case and after both parties had rested and the cause was submitted for decision and the parties were in the court to receive the decision. Under such circumstances the court properly denied plaintiff’s motion.

We are of the opinion that the decision in the prior case is res judicata of all the points raised or which might have been raised; that even if the claim of an implied obligation of the defendant, individually, arising out of the circumstances above related could properly be made in the present case, the facts negative such obligation and such claim cannot prevail.

For the reasons indicated the judgment of the trial court is affirmed.

Affirmed.

O’Connor and McSurely, JJ., concur.


author: Mr. Justice Stone

text:
    People of the State of Illinois ex rel. George F. Barrett, Attorney General, Appellees, v. A. C. Fritz et al., Appellants.

      Heard in this court at the October term, 1942.
    Opinion filed October 30, 1942.
    Karns & Bandy, of East St. Louis, for certain appellants.
    Raymond B. Hendricks, of East St. Louis, for certain other appellants.
    George F. Barrett, Attorney General, for appellees.
   Mr. Justice Stone

delivered the opinion of the court.

On the 3rd day of December, 1940, the Attorney General of the State of Illinois in his official capacity, filed in the circuit court of St. Clair county his certain complaint in equity directed against defendants charging them with conspiring, confederating, and agreeing to commit and committing public nuisances, which were alleged to exist throughout the State of Illinois. Such alleged nuisances were alleged to consist of open and notorious violations of the gambling laws of Illinois, with reference to the operation of gambling houses and clubs, “pin ball” machines, slot machines, bookmaldng, and pool selling, and many other alleged violations in connection with and as part and parcel of such practices.

The complaint is a large document. It originally named 1358 defendants. By amendments other defendants were added until said complaint as amended contains in round numbers 1400 defendants. These defendants have their domiciles in all parts of the State. Many who do not live in Illinois are referred to as conspirators. Many institutions such as newspapers, telephone and telegraph companies and others are made parties defendant. Upon the presentation of this amended complaint to the trial court, on motion of plaintiff a temporary injunction was ordered without notice granting the relief prayed in the complaint. The temporary injunction was issued and served in pursuance thereof. Most of the defendants answered the complaint. Some two dozen defendants whose names appear in the record but are not recited here filed motions to dismiss the complaint and dissolve the injunction. They also filed motions for change of venue.

Upon hearing, all of these motions were denied. Such defendants elected to stand by their motions and refused to plead further. The trial court then entered its decree on the pleadings finding the defendants guilty of the offenses charged in the complaint and making the injunction permanent as to them.

From this decree said defendants have appealed to this court.

The Attorney General contends that said complaint charges in apt words, substantially as follows: 1 ‘ That the named defendants and others named in the complaint entered into combinations, conspiracies and agreements with each other to:

(a) Own, operate or maintain 'bookmaldng and pool selling establishments, and to furnish the paraphernalia, equipment and services in connection therewith, contrary to law.

(b) Own, operate or maintain gambling houses and clubs contrary to law.

(c) Own, operate or maintain slot and ‘pin ball’ machines contrary to law.

Said conspiracies, combinations and agreements to be consummated in full or in part in St. Clair county, Illinois.

That the operation of the bookmaking and pool selling establishments, gambling houses and clubs, slot and ‘pin ball’ machines, were and did constitute public nuisances contrary to law.

That the operation of the pool selling and bookmaking establishments were calculated to and did encourage disrespect and contempt and a disobedience of the laws of Illinois and did subvert common decency and good morals and produced within the State of Illinois the following deleterious effects, among others:

1. It has induced citizens and residents of the State of Illinois and St. Clair county to lead an idle and dissolute life;

2. It has induced men and women of limited means within the State of Illinois and St. Clair county to spend upon wagers and bets on horse races money necessary for the support and maintenance of themselves and their minor children;

3. It has induced men and women receiving public aid and relief to wager upon horse races, and thus waste money raised for their support by taxes, thereby unnecessarily increasing the tax burden of the people of the State of Illinois;

4. It has contributed to the delinquency of minors in the State of Illinois and in St. Clair county by openly glorifying gambling and evasion of the laws;

5. It has caused citizens and residents of the State of Illinois and in St. Clair county to lose their regular employment, because they frequented such establishments and, on occasion, lost money entrusted to them by their employers;

6. It has attracted undesirable characters to the State of Illinois and to St. Clair county to the detriment of law and order therein;

7. It has caused the congregation at said bookmaking establishments of a large number of people, thereby contributing to a disturbance of the peace and quiet of the neighborhood;

8. It has caused a disrespect for the law and local law enforcing agencies, because of the inability or failure of such law enforcing agencies to suppress such establishments;

9. It has caused a lowering of property values in the neighborhood where such bookmaking establishments are being operated, because of the attraction of certain low and dissolute characters and the disturbance of the peace.

That in each and all of said particulars, the existence, operation, maintenance and conduct of said bookmaking establishments have interfered with the comfortable enjoyment of life and property by the entire community and neighborhood adjacent to each of said establishments, and by a large number of persons within the county of St. Clair and elsewhere in the State of Illinois.

That the operation and maintenance of slot and ‘pin ball’ machines did encourage disrespect and contempt and a disobedience of the laws of Illinois and did subvert common decency and good morals and produced within the State of Illinois the following deleterious effects, among others:

1. It has induced men and women of linrited means in St. Clair county and in the State of Illinois to gamble in said machines;

2. It has induced minors and children of immature age to gamble and has openly glorified gambling and evasion of the,law;

3. It has caused a disrespect for law and law enforcing agencies, because of the inability or failure of such law enforcing agencies to suppress such establishments.

That the operation and maintenance of gambling houses and clubs did encourage disrespect and contempt and a disobedience to the laws of Illinois and did subvert common decency and good morals and produced within the State of Illinois the following deleterious effects, among others:

1. It has induced citizens and residents of St. Clair county, Illinois, to lead an idle and dissolute life;

2. It has induced men and women of limited means within St. Clair county, Illinois, to spend on gambling, money necessary for the support and maintenance of themselves and their minor children;

3. It has induced men and women receiving public relief to gamble and thus waste money raised for their support by taxes, thereby unnecessarily increasing the tax burden of the people of the State of Illinois ;

4. It has contributed to the delinquency of minors in St. Clair county, Illinois, by openly glorifying gambling and evasion of laws;

5. It has attracted undesirable characters to St. Clair county, and the State of Illinois, to the detriment of law and order therein ;

6. It has caused the congregation at said gambling houses or clubs of a large number of people, thereby contributing to a disturbance of the peace and quiet of the neighborhood;

7. It has caused a disrespect for law and law enforcing agencies, because of the inability or failure of such law enforcing agencies to suppress such establishments.

In each and ¿11 of said particulars, the existence, operation, maintenance and conduct of said gambling houses or clubs have interfered with the comfortable enjoyment of life and property by the entire community and neighborhood adjacent to each of said establishments and by a large number of persons within the county of St. Clair and the State of Illinois.

That because of the nature of the illegal action of defendants and methods employed by them to accomplish their scheme and purpose, and the great number of persons who have combined with them in the said illegal, unlawful and oppressive combination and confederation, the People of the State of Illinois have suffered and are now suffering irreparable damage and mischief and have no adequate remedy at law, and "any attempt to attain such remedy would involve a multiplicity of suits.

The complaint further alleged that the State of Illinois is without adequate remedy at law to prevent the defendants from carrying out said conspiracies, and from doing the other unlawful acts herein set forth unless this Honorable Court does, by its injunction, prevent and restrain defendants, and each of them, from carrying into effect said unlawful conspiracies and from doing the other said unlawful acts.”

The defendants’ motions to dismiss the complaint and dissolve the injunction, in some instances, joined a number of defendants. Other motions were made by individual defendants. These motions in the main were alike but different reasons were assigned in several instances. We believe, however, that the following contains a recital of all objections raised by any and all of said defendants appellants here.

The complaint wholly fails to state a cause of action.

Complaint does not allege any facts which tend to show these defendants have participated in any conspiracy with the other defendants named in said complaint.

Complaint does not state any facts showing or tending to show that if other defendants participated in a conspiracy to violate the law that these defendants had any knowledge or were party to such conspiracy.

Complaint does not state facts which warrant a court of equity in granting relief.

Plaintiff has full, adequate and complete remedy at law.

There is a fatal misjoinder of parties defendant.

The allegations of the complaint consist of mere conclusions.

This proposed proceeding would deprive these defendants of their constitutional guarantee of trial by jury, and would subject them to a trial upon charges involving alleged criminal offenses without according them the protection that is given to a defendant- in a criminal case; the protection of the presumption of innocence and the requirement that the prosecution must prove its case beyond a reasonable doubt.

Complaint is predicated upon the fallacious theory that these defendants will, unless restrained, violate criminal laws of this State in relation to gambling. The presumption of guilt, or the presumption that one will violate a statute, is repugnant to law and opposed to the democratic theory of government. The theory upon which this complaint is predicated is unAmerican, dictatorial and should not be countenanced in an American court.

One un-American result of this action being sustained would be that every citizen as defendant would become the ward of this court; each defendant would lose his liberty, independence and inalienable rights that inhere in and should be enjoyed by every American society; each defendant would be answerable to this court permanently throughout the future for all of his daily conduct; a bureaucracy would be established in this democracy with the court usurping and administering the dictatorial powers of an autocrat.

This court is without jurisdiction to try these defendants.

That equity has power to abate hy injunction a public or private nuisance, even though the keepers thereof may be prosecuted criminally is in our judgment without doubt. In the case of Stead v. Fortner, 255 Ill. 468, a saloon was run during prohibition days in utter violation of the law. The keeper thereof could have been prosecuted criminally, of course, but nobody would prosecute; the State’s Attorney refused, and the people of the community who evidently liked to have the saloon, would not inform. The Attorney General brought suit in equity to abate the nuisance. The Supreme Court held that a court of equity had plenary power to abate such nuisance and affirmed the decision of the trial court so abating it. To the same effect is People v. Clark, 268 Ill. 156. This was a bawdy house. The inmates, of course, could have'been prosecuted criminally for various high crimes and misdemeanors, but the place was a public nuisance and was abated by injunction. People v. Smith, 275 Ill. 256 is another case of bawdy house. All of these cases were against premises and the use of them in violation of the law. Equity intervened and stopped these violations by injunction. Cella v. People ex rel. Hamlin, 112 Ill. App. 376 is an injunction directed against a po.ol room, which by its conduct had become a nuisance. This case emphasized the fact that a place — a nuisance injurious to public and private rights, must exist, not merely the violation of the law. In point also is sec. 10, R. C. L., sec. 91, p. 341, also 21 C. J. 155, sec. 136.

We think the distinction is clear. If some institution or individual or set of individuals should establish a bawdy house across from any of our homes and the place should become notorious, any one of us could complain and have the place enjoined, either as a private nuisance or as a public nuisance; and this notwithstanding the fact that the inmates thereof might be prosecuted criminally.

Here, however, equity stops. It cannot enjoin fornication as such any more than it can enjoin miurder, rape, mayhem- or robbery. It is only when these crimes are carried on in a manner that makes the place of their activity a nuisance that equity intervenes. In the cases of the above bawdy houses the injunctions run only to the premises. They do not mean that the inmates may not carry on their practices in other places. It is the place of the nuisance which is enjoined.

The cases upon which plaintiff relies make this distinction very clear. In Stead v. Fortner, supra, it is said:

“A court exercising equitable jurisdiction will not restrain, by injunction, the commission of illegal or immoral acts, and will not enjoin one engaged in the sale of liquor from making sales which are punishable by the criminal law. ’ ’

In State of Illinois v. Zimmerman, 317 Ill. 197, our Supreme Court said:

“The General Assembly has the power to declare that any place kept and maintained for the illegal manufacture and sale of intoxicating liquors shall be deemed a common nuisance and be abated as such and at the same time to provide for the indictment and trial of the offender.”

There are numberless cases to the same effect.'

Granting the ability in a court of equity to enjoin places which have become public nuisances, how then can 1400 persons, places and institutions be made parties in interest in a complaint directed against places which have become nuisances? Plaintiff has sought to do so by alleging, or claiming to have alleged, that these 1400 persons, places and institutions, scattered throughout the state, are in a conspiracy to maintain the nuisances. Section 139 of our Criminal Code makes conspiracy to commit an unlawful act a criminal act and punishable as such. This section was followed in People v. Miller, 352 Ill. 537. This, by the way, is the leading case relied upon by plaintiff that the allegations of conspiracy are ample and sufficient. This is a criminal case, — a prosecution under an indictment, and has nothing in common with the allegations in the complaint at bar. Incidentally, in this case the People did not seek to enjoin Miller and his cohorts from unlawfully granting other licenses, hut on the other hand, pursued the remedy prescribed by statute, that is, a criminal prosecution, and found it abundantly adequate.

The complaint is directed against two distinctive groups of people, one charged with conspiracy and violating numerous public statutes in regard to horse racing; the other, those engaged in conducting various kinds of gambling houses. and clubs wherein are played dice, card games and other devices. The third group is listed as those who, in St. Clair county, keep and operate slot machines in violation of the statute prohibiting use of such machines for gambling purposes. The acts of this third group as entering into a common scheme of conspiracy are only inferentially pointed out under a general assertion against all defendants that they entered into a conspiracy.

As to the first group, the complaint states that they were engaged in the conspiracy. And then it states that there is another group of conspirators, viz: said second group. The complaint comtinues general allegations that defendants conspired. Such are only statements of conclusions.

It thus appears that the complaint seeks in one transaction to enjoin two distinct groups of law breakers, engaged in business wholly unrelated in nature, type and location.

It is the general rule of equity pleading that if a bill contains several matters of a distinct and independent nature against civil defendants, it is multifarious. (North American Ins. Co. v. Yates, 214 Ill. 272, 284.)

If it is proper practice to join such two distinct groups of persons who are charged with violating the various laws of Illinois, then the complaint could have included a third group of law breakers and a fourth and a fifth and so on, without limit. This complaint made over 1300 persons, parties • defendant. They lived and conducted their various types of business in almost all of the larger cities and in the various counties of Illinois.

Had a third group of persons alleged to be law breakers, such as those conducting houses of ill-fame, their inmates and owners of property, been included, it may have been that thousands of additional persons would have been made defendants, conducting their illegal business in every city, village and county in the State. If to that had been added other groups of law breakers, automobile drivers; husbands abandoning and failing to support their wives and children; cigar and restaurant proprietors, exhibiting in their places of business slot machines or punch boards; those in jails charged with theft and other types of crime they may be grouped, — the multitude of defendants could be grouped and made defendants, running into the enormous number of thousands.

It seems to us that the theory of this complaint enjoining such two distinct groups, defeats its own purpose. If such practice were permissible, equity would sweep aside and usurp the vast judicial system of this State, without restraint.

The complaint does not allege facts showing a common scheme and conspiracy between the numerous defendants in such two groups, nor of one defendant with another in the same group.

The complaint is very lengthy. In regard to illegal endeavors connected with horse racing, which by statute is a legalized business, many facts are recited paragraph by paragraph. In similar paragraphs the business in which the divers certain defendants have engaged is set out, references are made to statutes and statements are made that the operation of the business is in violation of the statute. In such paragraphs the various types of business also fall into various groups. Some defendants are engaged in the printing business and are alleged to have printed certain documents, described and listed. Some defendants are alleged to operate bookmaking establishments. Some defendants are engaged in contracting business and installation of radios. Some defendants are engaged in public service business such as telephone transmission, over their lines telephone messages are transmitted on some subject connected with horse racing. Many paragraphs recite the names and places of residence of the respective defendants in the various cities and counties of Illinois.

Some paragraphs list as defendants some of the most outstanding banks, trust estates and prominent persons in Chicago as being conspirators in that they own or, as trustees or executors, represent real estate in which bookmaking and pool selling establishments are operated. Other paragraphs list large numbers of defendants, who, as plaintiff says he is informed, either own or operate bookmaking establishments, furnish information or material and who are located in various cities and counties other than Chicago and St. Clair county.

In regard to the second group charged with conspiracy because they own buildings or taverns where were card games, or dice, like allegations by separate paragraphs are made in great detail.

The .facts thus alleged are recitations as to separate defendants concerning their business, and addresses. The various recitations of such facts show the wide separation of location, endeavor, necessary acquaintanee and conduct of one defendant with the other, even between those of such respective division of said two groups of defendants.

The complaint recites that the defendants are engaged in conspiracy to violate the laws of the State, not that they maintain a single nuisance at a single designated place, but a large number of public nuisances.

The prayer asks for an elaborate injunction. It is not a request for abatement of a large number of designated places, machinery, appliances, real estate constituting nuisances, and hundreds of places scattered over Illinois. The complaint asks injunction against all defendants from committing at any time or place, at any time in the future, any crime or offense as listed in detail, or from owning or leasing any property at any time in the future to persons who may use same in the commission of their future crimes.

The entire theory of the complaint and purport of relief is that a court of equity, in one fell stroke, may enjoin some 1400 named and innumerable unnamed and unknown persons from committing crimes or misdemeanors.

It seems to us that this is an attempted revolutionary revision of the principles of our government and amounts to an astounding assertion of a principle of equity jurisprudence.

One of the first principles of civil rights recognized for hundreds of years is, that no man shall be deprived of his right of trial by jury. When equity deprives that right, it is with intense reluctance and based on the necessity of a given case where law may not give an adequate remedy.

We have not been cited any case and can find none of any court of this State, which in fact or principles goes to the extremity pursued by the complaint, and confirmed by the decree for injunction entered, in this case.

We have examined every Illinois case cited in the briefs and we believe that the authorities cited announce principles contrary to the contention of the State of Illinois, in the case at bar.

Under the authorities, one principle requisite for injunctive relief of this kind, where criminal acts are involved, is that equity does not have jurisdiction to enforce criminal law. To state a cause of action, the complaint must state facts, among other things, to show that adequate relief cannot be obtained at law in the criminal courts. It is noted in the cases cited and referred to that where injunctive relief has been granted, that the criminal charges are incidental only and that the complaint has alleged facts and not conclusions alone, showing why relief cannot be obtained at law. For this reason we think that the complaint herein is fatally defective in that particular.

Further examining the complaint, it is found that the pleader has alleged conclusions stating that adequate relief at law could not have been obtained. The allegations are that the State of Illinois is without a remedy at law. Why, it fails to allege. The complaint alleges in another place that the violations in the future will cost city, county and State large sums of money for prosecution and punishment of the persons committing the offenses and will not prevent the committing of future crimes by them; that any attempt to prosecute such violators would involve a multiplicity of suits. It is to be noted that this complaint does not state that law enforcement officers of this State and its numerous subdivisions have tried to enforce the law against any of these defendants, or have refused to prescribe offenses against the various statutes claimed to have been violated.

The Attorney General is at the head of the law enforcement body of the State. All State’s Attorneys are at his command and direction. There is no aliegation that he or they have ever tried to enforce the laws ..complained of against the defendants.

It is not enough to say that there is no adequate remedy at law when the court can see at a glance that there is a sufficient and plenary remedy. The legislature has, under the constitution, gone far in providing adequate, minute, and efficient machinery to punish every offense charged in this complaint. A hundred years of government in Illinois has demonstrated the complete sufficiency and efficiency of this machinery. So far as this complaint alleges the adequacy of this machinery has not been tested. The facts alleged in this complaint are far, — very far from the facts alleged in Stead v. Fortner, supra. The law does not tolerate absurdities.

We are loath to believe that should he try, he and the various law enforcement officers of the State could not cause all of these nuisances to be abated and punishment meted out appropriately to any defendant.

The fact that it costs money or effort or time to enforce the criminal laws is not ground to support a claiming that adequate relief cannot be granted at law. The courts are always open over the entire State. G-rand juries may be convened at any time. Informations may be issued any day.

It is unbelievable that the courts and enforcement officers and agencies in the 102 counties and in the numerous cities and villages of Illinois have not been able to enforce the criminal laws of this State; have refused to enforce same or have conspired to prevent enforcement of such laws.

Cases have been cited where the laws could not and were not enforced, but the complaints in most cases, or the facts proven where the facts for consideration were not only attained by view of the complaint, show, we believe, in every instance, positive statements, conclusively- showing that the law could not be enforced. In Stead v. Fortner, supra, it is alleged that in the town of Shelbyville defendant operated a saloon in dry territory which was a nuisance; that the city authorities took no measure to prevent sales; that informations had been filed charging a common nuisance, but that the county judge refused to issue warrants on the information; that lists of witnesses were presented to grand juries, but that each grand jury refused to hear witnesses or consider evidence or return indictments.

Such case is entirely dissimilar from the instant case.

In People v. Clark, 268 Ill. 156, the operator of a bawdy house had been continuously arrested and fined but had continued operating the nuisance. In Cella v. People ex rel. Hamlin, 112 Ill. App. 376, 388, an injunction was entered against the Madison Turf Exchange. The bill alleged that the proprietors remained out of the jurisdiction of process of the courts; that steps were then taken to arrest and prosecute their agents managing the business, but they escaped out of the State and that all attempts to suppress and abate the nuisance had proven inefficient.

The possibility that many person will violate the law and many suits will be required to enforce it does not warrant relief by injunction. People ex rel. Shepardson v. Universal Chiropractors’ Ass’n, 302 Ill. 228, 231.

While a court of equity may abate a nuisance, such as a place where liquor is being sold illegally, it will not restrain by injunction the commission of illegal or immoral acts and equity will not enjoin one engaged in the sale of liquor, from making sales which are punishable by criminal act. Stead v. Fortner, supra.

Where the enforcement of criminal law is merely incidental to general relief sought in equity, it is well settled that a court of equity may grant relief by injunction. Where a political question merely incidental to invasion of a property right, equity would be justified in intervening. But the converse is not true. If the property right was merely incidental and the political question predominated, the court of equity would have no power to grant an injunction. People v. McWeeney, 259 Ill. 161, 174.

So if abatement of a nuisance were merely incidental and the basic theory of a complaint is the prevention of the commission of crimes, equity has no power to grant injunction against commission of crimes in the future.

The reading of the complaint in this case clearly shows that it was an attempt in one suit in one county of this State to herd together innumerable people charged with crime and maintaining innumerable nuisances throughout the various counties of the State and to enjoin them from committing crimes in the future. Abatement of the nuisance, had it been asked, is, therefore, shown to be merely incidental to the crimes involved. If so, all language in authorities cited by the State are not in point, since they refer to cases where the crime was merely an incident.

The decree followed the complaint and granted all relief prayed. The decree is improper on either of two theories. First, that the court should not have entered an order directing the injunction to issue and, second, that the injunction issued was broader than the averments of the hill justified. Franklin Union No. 4 v. People, 220 Ill. 355, 357. The above is true although the court may have jurisdiction of the class of cases or subject matter and of the person. The decree was • broader than the allegations of the complaint. That is, than the properly alleged allegations of the complaint would justify.

It is well settled that equity has no jurisdiction in matters merely criminal or immoral, which do not affect property. It is not part of the mission of equity to administer the criminal law, enforce religion or morality or polities, except where incidental to the enforcement of property rights.

It would be a sad day for Illinois and our American way of life when a court having the power to influence public policy should hold that the opinion of one judge, however eminent, acting under the extraordinary remedy of injunction, should be substituted for the criminal code of Illinois.

The sole and entire theory of the complaint is to solve the crime question, by enjoining its commission.

Equity has no criminal jurisdiction. People v. Prouty, 262 Ill. 218, 221; Koch v. McClugage, 276 Ill. App. 512, 520; People v. Kuca, 245 Ill. App. 202, 207, 208.

Equity will look to the substance and not the mere form to determine whether injury to the property is the foundation on which equity may rest. People v. McWeeney, 259 Ill. 161, 173.

From the above we cannot escape the conclusion that the complaint on its face shows that its sole purpose is to, assume a-criminal jurisdiction; that the criminal phase is not incidental but is the major and sole phase; that abatement of nuisances, buildings and locations are not prayed for, although stated to exist in the bill; that the recited cases all turn on the basis of some property rights of a single individual or people in general as nuisances, as ground for abatement upon which basis criminal acts have been enjoined.

Civil Practice Act has not abolished underlying principles of equity practice. It specifically recognizes marked divisions between equity and law. Our practice act requires statements of fact and not conclusions.

This complaint makes two and perhaps three distinct and disconnected classes of persons defendants.

As stated above'the complaint says that “in addition to the illegal conspiracy and operation of bookmaking establishments in St. Clair county, there exists an unlawful combination of” houses where dice and cards are played. That is an allegation of a second conspiracy. There are no facts alleged showing that this second conspiracy was a part of any other conspiracy. Then follow allegations concerning another group of defendants, some of which are included in the first group in St. Clair county. But there is no allegation even that they conspired. Therefore, the complaint has three matters distinct and of independent nature. This renders the complaint multifarious. North American Ins. Co. v. Yates, 214 Ill. 272, 284. It contains all the faults of multifariousness. Several causes of action regarding the three distinct groups did not grow out of the same transactions. The transactions were multitudinous. All defendants are not interested in the same rights. Some are, and that would regroup the groups into innumerable other groups to comply with the requirement that all defendants must be interested in the same rights. As to these three groups, the acts by them shown are separate individual violations of statutory laws and their acts do not relate to a general scheme of conspiracy. It is not enough to say that they all intended to violate the laws of Illinois and, therefore, they were conspirators. If that were true, that could be said of every person who violates- any law and he and every other violator could be included in one complaint as conspirators. So, under the authorities and as laid down in North American Ins. Co. v. Yates, supra, this complaint is multifarious without any situation of discretion by the court.

In a criminal case certain allegations may render an indictment sufficient by using the words of the statute. Furthermore, a bill of particulars may be required. We do not believe that decisions concerning the necessary allegations of a conspiracy under the criminal law are proper guides in considering a civil complaint. In a civil complaint facts must be alleged which will show positively, that the defendants conspired, had a common understanding — generally schemed together. This complaint alleges conclusions only in regard to conspiracy. The complaint alleges' that a conspiracy exists, but does not even allege who was conspiring. As said above, it does not charge unlawful combination of conspiracy to defeat the laws of a third group of St. Clair county defendants. It simply alleges they violated the laws. There are no allegations that the various defendants engaged in, agreed to, assisted the printing of cards and printing material, conversations and use of telephones, and so on.

It follows that in our judgment the complaint is obnoxious to the motions leveled against it, which have the force of a special demurrer. The complaint does not charge conspiracy in manner and form to justify the conclusion of conspiracy. The complaint is multifarious. The attempted service of defendants under the circumstances of this complaint is a distortion of our practice act. The law furnishes a complete and adequate remedy for the prosecution of each and every one of the offenses charged in this complaint.

Lastly, by whatever name it may be called, this proceeding is an attempt to enforce the criminal laws of Illinois through a court of equity by the extraordinary power of injunction. “The hand is the hand of Esau, although the voice is the voice of Jacob. ’ ’ •

Any one of the foregoing propositions found adverse to plaintiff would warrant a reversal of this case. This proceeding is subject to all of them.

The decree of the circuit court of St. Clair county is reversed and this case is remanded with instructions to that court to allow the motions of defendants appellants to dismiss the complaint and to dissolve the injunction.

Reversed and remanded with directions.


author: Mr. Presiding Justice Culbertson

text:
    Frank T. Kienstra et al., Appellants, v. Madison County Mutual Automobile Insurance Company, Appellee.
    Heard in this court at the May term, 1942.
    Opinion filed November 2, 1942.
    Terry, Gueltig & Powell, of Edwardsville, for appellants.
    Simpson, Reed & Burroughs, of Edwardsville, for appellee.
   Mr. Presiding Justice Culbertson

delivered the opinion of the court.

This is an appeal from an order of the circuit court of Madison county, sustaining the motion of Madison County Mutual Automobile Insurance Company, a corporation, appellee (hereinafter called defendant), to dismiss the second amended complaint of Frank T. Kienstra, Joseph C. Kienstra, et al., for the use of Aetna Casualty and Surety Company, appellants (hereinafter called plaintiffs.)

The action was instituted to recover from defendant Automobile Insurance Company, on a policy issued to Service Coal & Ice Company, under which name the Kienstra brothers were doing business as partners. By the terms of the policy defendant agreed to indemnify them against loss up to $5,000 for damages on account of bodily injury suffered by any person as a result of an accident caused “by reason of the use, ownership, or maintenance” of a certain Ford truck described in the policy.

At the same time Aetna Casualty and Surety Company had in force its policy, by which Kienstra brothers, doing business as “Service Coal Company” was insured by the Aetna Company against “loss and/or expense resulting from claims upon the assured for damages on account of bodily injuries, or death, alleged to have been accidentally suffered by any person or persons not employed by the assured,” and listed, as an exception to such contract, that the company was not to be liable “on account of any claim alleging injuries or death caused ... by the ownership, maintenance, or use of a vehicle of any description.”

While both of such policies were in force an employee operating the ice truck on July 5, 1939, was delivering a 50-pound cake of ice from the truck to the house of one of his customers and negligently caused the cake of ice to fall upon a three-year-old boy who was in the customer’s yard, through which the ice was being carried. A claim for damages was made by the child, through his mother as next friend, for his injuries and for the hospital and medical expenses. Defendant denied liability, but the Aetna Company compromised and settled the personal injury claim for $1,000, and the loss of service claim for $500, and arranged and confessed judgment for $1,000 in the circuit court on the claim of the minor in a friendly suit handled by its attorneys. The Aetna contract provided for subrogation in case of loss or expense “under this policy” to the assured’s right of recovery against others for such loss or expense. The Aetna Company brought the action in the name of the assured Kienstra brothers to compel the defendant to pay to the Aetna Company the loss which it has paid under its insurance policy. An original and a first amended complaint were filed by plaintiffs, and the second amended complaint was finally filed, which the defendant moved to dismiss on a number of grounds. The motion to dismiss, as indicated herein, had been sustained and plaintiffs elected to stand by their second amended complaint.

On appeal to this court plaintiffs contend that the words, “by reason of the use, ownership or maintenance of the automobile ’ ’ are broad enough to include the act of the driver in carrying away and delivering the cake of ice in the yard of the customer where the accident occurred, as herein stated. It is contended by plaintiffs that the clause referred to is broad enough to include “unloading” operations and that such provisions should be liberally construed in favor of plaintiffs in this cause to extend the interpretation to include the accident in question. In this connection it should be noted that the exception in the Aetna policy contains similar language.

This is apparently a case of first impression in this State upon the precise facts involved herein. It is illogical for us to conclude that, when the ice in this case had been unloaded from a vehicle and was en route to its destination by other means, the accident, under the particular facts involved herein (and as between the parties) could constitute an accident caused by reason of “the use, operation or maintenance of the automobile.” While the truck had been used to deliver the ice to the household of the customer, the ice involved in the accident had been removed therefrom, and was being carried-from the street to the customer’s icebox. The ice man had walked away from the street, through the customer’s backyard and was near the back porch when he dropped the ice. It is difficult indeed to see any causal relationship between the accident and the “use and operation” of the truck, under the facts in the instant case.

In our review of the many cases which have been cited by parties in this action, we have been directed to a number of policies which specifically insure the risk of “loading and unloading” of trucks. Nothing which we have to say in this case is to be understood as a construction of such policy provisions. It is contended by appellant, on the basis of the cases of Panhandle Steel Products Co. v. Fidelity Union Casualty Co. (Tex. Civ. App.), 23 S. W. (2d) 799 (1929); Owens v. Ocean Accident & Guarantee Corp., 194 Ark. 817, 109 S. W. (2d) 928 (1937), that the unloading of the truck was a necessary incident to its use, and that, therefore, the language of the policy is such as to include such operations in the “use, ownership, or maintenance.” Neither of such cases involved a subrogation suit, and in each, the assured was the real party in interest. The courts there felt impelled to adopt the rule of liberal construction and to construe the language most strongly against the insurance company. In the instant case the real party in interest is the Aetna Company and it is asking, in substance, that the exception in its policy be construed strictly and that the provision of the defendant’s policy be construed liberally to the end that liability may be imposed upon defendant.

We have examined many cases in coming to our conclusion in the instant case. Our attention has been directed to the cases of Zurich General Accident & Liability Ins. Co. v. American Mut. Liability Ins. Co. of Boston, 118 N. J. L. 317, 192 Atl. 387; Jackson Floor Covering v. Maryland Casualty Co. of Baltimore, 117 N. J. L. 401, 189 Atl. 84; Franklin Co-op. Creamery Ass’n v. Employers’ Liability Assur. Corp., Ltd. of London, 200 Minn. 230, 273 N. W. 809; J. T. Hinton & Sons v. Employers’ Liability Assur. Corp., 166 Tenn. 324, 62 S. W. (2d) 47; United States Fidelity & Guaranty Co. v. Breslen, 243 Ky. 734, 49 S. W. (2d) 1011; Caron v. American Motorists’ Ins. Co. of Chicago, 277 Mass. 156, 178 N. E. 286, and a number •of others.

The Zurich case, supra, is of particular interest in that in that case it was the practice of the ice truck driver to place the ice in the refrigerator for the storekeeper. The cake was too large for the refrigerator door and in the process of fitting the cake to get it into the icebox the proprietor’s wrist was negligently stabbed. The Zurich Company (like the Aetna Company in the instant case) carried a public liability policy which excepted accidents arising in connection with the “maintenance, use or operation” of motor vehicles. The American Mutual Co. carried an automobile policy which insured against liability by reason of the “use, ownership, maintenance or operation” of the truck. The court in that case held that the accident was not covered by the American Mutual policy and that the automobile policy contemplated an accident immediately identified with the “ownership, maintenance, use, or operation” of the vehicle, and that the words “use, ownership and maintenance” were plain and unambiguous, and delimit with understandable certainty the liability imposed upon the insured. It was pointed out that they related to the vehicle itself, and excluded accidents that were only remotely connected with the “ownership, maintenance or use.” As stated by that court (at p. 388), “A construction that would include within the coverage of a clause so phrased, the thing being done when the accident happened, would impart to it an artificial meaning at variance with the apparent intention of the parties.” It was pointed out in that case that the assured had paid premiums on two policies and that both must be interpreted as an integrated agreement and that the courts must attach to the words used the same meaning which an intelligent person acquainted with all of the uses and operations of the ice business would have attached to the same when he bought the two policies. Such conclusions are, likewise, applicable in the instant case. So interpreted, it seems reasonably clear that the Kienstra brothers had insured with the Aetna Casualty & Surety Company as to all risks incurred after the ice man had taken the ice off of the truck and started it on its journey to the customer’s icebox.

In Jackson Floor Covering v. Maryland Casualty Co., supra, the truck involved had brought some linoleum to the unloading platform and had come to rest. From this point plaintiff’s employees in that case were transporting the linoleum rolls on a handcart to the purchaser’s platform when the linoleum rolled off and injured a third party. In that case the automobile carrier was not required to stand the loss and the general liability carrier was held hable for the reason, as stated by the court, that (p. 85) “the unloading of the plaintiff’s truck had been completed and the transportation from there on was by a different means; . hence there could be no concurrent coverage since the carrier insuring the automobile truck was under no obligation.”

In Franklin Co-op. Creamery Ass’n. v. Employers’ Liability Assur. Corp., supra, the Minnesota Supreme Court, in construing not only the “use, operation and maintenance” clause, but also a “loading and unload-' ing” clause, stated (p. 810), “After he left his wagon, carrying the containers, the process of retail distribution began. If he had served customers on the first floor before he attempted to take the elevator, it could hardly be contended that he was still engaged in unloading the vehicle, nor could it be so contended if some accident had happened while he was passing. from customer to customer . . . necessarily, the unloading of a great variety of merchandise involves • various situations resulting in various holdings as to when the process of unloading terminates. This one stands outside the terms of the unloading clause of the policy and it stands even farther without the ‘ operation, maintenance and use’ clause.” The court there determined that injuries caused by negligent operation of a freight elevator in a three-story building by a milkman delivering milk was not within either the unloading or the operation, maintenance and use clause.

In Caron v. American Motorists’ Ins. Co., supra, an ice truck was parked near a crosswalk and while so parked pieces of ice had fallen to the ground. Plaintiff, while crossing the street, stepped upon the pieces of ice and fell and injured herself. The court, in denying liability in that case, stated (p. 287), “The motor vehicle was not in motion. The plaintiff’s injury did not result from its being stationary on the public way. It resulted entirely from the conduct of one disposing of the contents of that motor vehicle in a way which is customary in delivering ice. Transportation by motor vehicle of the ice. . . . had ended.”

The views expressed in the cases referred to seem consistent with the language of the policies in the instant case. We believe that in a proper case, views such as expressed in Caron v. American Motorists’ Ins. Co., supra, may be determined to be too narrow and not consistent with a liberal interpretation of an automobile use, operation and maintenance policy. Under the particular facts involved in this cause, however, we feel that liability properly was that of the Aetna Company which carried the general liability insurance, and not upon the Madison County Company which carried the automobile insurance. Consistently with the interpretation in the cases referred to (and notably, in the case of Zurich General Accident & Liability Ins. Co. v. American Mut. Liability Ins. Co.), we believe that the court below properly sustained the motion to dismiss the second amended complaint. The judgment of the circuit court of Madison county is, accordingly, affirmed.

Judgment affirmed.