author: Mr. Justice Huffman

text:
    Roscoe J. Todd, Administrator of Estate of Nellie J. Todd, Deceased, Appellee, v. S. S. Kresge Company, Appellant.
    Gen. No. 9,485.

      Heard in this court at the October term, 1939.
    Opinion filed December 15, 1939.
    Rehearing denied February 6, 1940.
    Ellis & Hamilton, of Elgin, for appellant; Paul M. Hamilton, of Elgin, of counsel.
    Charles Gr. Seidel, of Elgin, and Ernest W. Ake-mann, of Chicago, for appellee.
   Mr. Justice Huffman

delivered the opinion of the court.

This suit was originally commenced by Nellie J. Todd, deceased, to recover for personal injuries received by a swinging door at the entrance to a store operated by appellant. The accident happened on October 16, 1937. Suit was brought by the injured party on February 8, 1938. Plaintiff in the suit died June 15,1938. Appellee administrator was substituted as plaintiff, and an amended complaint filed. A trial by jury resulted in a verdict for $7,500. Appellant prosecutes this appeal from judgment rendered thereon.

On the evening of October 16,1937, the deceased and her daughter went to appellant’s store in the city of Elgin. The entrance to the store consisted of double swinging doors located at the middle of the store front. On each side of the doors were display windows. The entrance from the sidewalk to the doors was tiled and about 9 feet in width at the sidewalk line. This entrance way narrowed to the width of the swinging doors. The doors had a total width of slightly over 5 feet and set about 4% feet back from the sidewalk line. They were the common type of swinging doors used at the entrance of business concerns of this character. The doors swung either way, that is, both inwardly and outwardly. They were equipped with double acting spring hinges which permitted them to thus swing in either direction. They were also equipped with door checks at the top, which served to stop them at the proper place when swinging closed.

On the evening in question, the deceased and her daughter went to appellant’s store. The daughter states that she entered the store first and through the right-hand door; that the door was then swung inwardly; that it was standing open in this manner; that after she entered the store and had proceeded a few feet, she turned to look back toward her mother, at which time she observed the door swinging to a closed position. The deceased was carrying her purse and several merchandise bundles. As the north door swung to a closed position the daughter observed her mother fall. It is the contention of the daughter that the door in swinging shut, struck her mother, knocking her to the floor of the entrance way. The deceased in her fall sustained a broken hip. She was 68 years old and afflicted with pernicious anemia, from which disease she died. Following her injury, she was removed to the hospital. The testimony of the surgeon is to the effect that she had a fair recovery from the fracture. Her death was in no way connected with the accident. The damages sought in this suit are based solely upon the injuries received from the accident.

The daughter in her testimony states that she and her mother had been frequent customers at this store and were acquainted with the operation of the swinging doors. She states that she noticed no difference in their operation at the times she used them. She says that on the evening in question the north door was swung inwardly and was standing open in that position. Two witnesses testify for appellee, that prior to the date of the accident, they had observed the doors at appellant’s store opened inwardly and standing open in such position.

The manager of the store was called as a witness for appellee, under section 60 of the Civil Practice Act, [Ill. Rev. Stat. 1939, ch. 110, sec. 184; Jones Ill. Stats. Ann. 104.060] and examined in detail regarding the doors, their mechanical equipment, and manner of operation. It appears from his testimony that they were equipped to swing both inwardly and outwardly such as is common to entrances of this character. He further states that they were not equipped to remain standing open when swung inwardly, and that upon being swung or pushed open inwardly, they would by virtue of the mechanical equipment controlling their operation, return to a closed position. This witness further states that the doors were equipped on the outside, at a place near the bottom, with a device which would enable them to be opened outwardly and fastened so that they would remain open; but that there was no such equipment or device whereby they could be opened inwardly and caused to remain in that position; that in order for this to be done, the mechanical apparatus connected with their operation would have to be dismantled. He says that at the time in question, the mechanical equipment of the doors was not so dismantled and that it was working in the usual and customary manner. This witness had been manager of this store for about two and one-half years prior to the accident. He states that the doors and the equipment connected with their operation were the same as when he became manager; that they were in the same condition ; and that they were checked frequently.

The manager of the store also testified for appellant. He states that the doors on the evening in question were not standing open at any time, so far as he knew. He again asserts that the mechanism controlling their operation did not permit them to stand open of their own accord. He further states, upon information obtained from his records, that these doors were used approximately 800,000 times a year since he had become manager of the store, and that this was the first accident of this kind of which he had any knowledge.

Several witnesses testified for appellant, who were present and saw the accident. The first of these was James Salisbury, who by occupation is a bookkeeper. His wife was employed at this store on the evening of the accident. He arrived there at about 10 minutes before 9, to meet her. He states it had been raining and the weather was chilly; that he did not go into the store, but stopped at the entrance and remained outside. He says he had been standing at the entrance to the store about 10 minutes before the accident occurred ; that during this time he saw people enter the store; and that he saw the accident happen to Mrs. Todd. He states he was standing, facing the entrance to the store and directly in front of same; that when Mrs. Todd was about a foot from the doorway, and about to enter through the north door, he saw her throw up her arms and saw her packages drop, whereupon she fell to the south and against the south show window and slumped upon the tile entrance way. This witness was the first person to reach her. He states that she was in the entrance way leading from the sidewalk to the doors and about a foot from the doors. He says that he saw the doors just prior to her approaching the entrance, that they were working and that neither of them were standing in an open position. He states that as Mrs. Todd approached the entrance, the north door had been opened by another person and was in the act of closing itself just as she reached her position before it, whereupon she threw up her hands in the manner above described. He says that at the time she threw up her arms, the north door was just coming to a closed position; that he did not see it strike her; and that she was about one step from the door when she threw up her arms and fell. This witness further states that three ladies entered the door through which Mrs. Todd was about to pass, immediately before her, and that following these ladies, Mrs. Todd’s daughter passed through the door. This witness picked up the packages for Mrs. Todd after the accident. She was placed in a taxi and taken away. He states she fell in the entrance way before she had reached the doorway.

The witness Dorell Thelander, was at the store on the evening in question. He is a clerk for the Milwaukee Bailway Company and works in Chicago. He was at the store waiting for his wife who was employed there at this time. He went to the store at about 10 minutes before 9. He states that he saw the door swing in and out; that he knew Miss Todd and her mother by sight; that during the time he was standing there waiting for the store to close, neither of the doors were open except when someone was passing through them. He says he saw Miss Todd enter the store and that she was 10 feet from him; that he saw her come to the door and that there were two other ladies directly behind her, who entered. He states Miss Todd walked down the south aisle of the store to a distance of some 12 or 14 feet. He says he saw her mother approaching the entrance to the store; that when he first saw Mrs. Todd she was about a foot or 14 inches from the doors, that both doors were swinging, and that the north door was swung inwardly, having just been used by the ladies who had entered the store following Miss Todd; that the door was at about a 60 degree angle and opened inwardly when Mrs. Todd approached it, and that at such time it was in the act of swinging shut; that as Mrs. Todd approached the door to enter, he saw her throw up both hands and fall over in the entrance way; that she had several bundles which fell to the entrance way; that he did not see either door strike her; that to the best of his judgment when she threw up her hands and fell she was about a foot from the doorway entrance, and that as she threw up her hands, she took a step backwards and fell. This witness immediately went to her assistance. He states that the closing time for the store was 9 o’clock; that the 9 o’clock closing bell had already rung, but that customers were in the store and business was still being transacted; that it was about two minutes past 9 when he saw Miss Todd enter the store; that it had been raining and the streets were damp and the weather chilly. He says that he observed Miss Todd as she came into the store and that just at the time her mother met with her accident, Miss Todd turned to look toward the door. This witness on cross-examination states positively that Mrs. Todd was not struck by either the north door through which she apparently intended to enter the store, or by the south door.

The witness Fred Grenawalt, states that he is a pressman in a publishing company in Elgin, where he has been employed for over 28 years; that he was in the store on the night of the accident; that he went there about five minutes before 9; that he entered through the north door which is the door alleged to have caused Mrs. Todd’s injuries; that it was closed when he entered; that he went to see his daughter who was a clerk; that he gave her some instructions and turned and started back toward the doorway for the purpose of going outside the store; that the closing bell had rung; that as he approached the front door with the intention of going outside, he saw Mrs. Todd fall; that when he first saw her she had started to come through the north door; that he saw her throw up her hand to catch the swinging door which had been opened by someone preceding her, and which was then in the act of swinging shut; that the person who went through the door just in front of Mrs. Todd was a woman; that she passed through the door and let it swing; that as Mrs. Todd started to walk through the door it swung toward her; that she put out her hand to stop the door and lost her balance; that she then threw up her left hand in an effort to grasp the south door, and fell. He says she fell in the entrance way right in front of the doors and that her head was to the south. The witness immediately went to her assistance. He states he had not known Mrs. Todd before this time. He says the door was not standing in an opened position, inwardly, prior to the accident. The witness states that as he was approaching the doors to go out and saw„ Mrs. Todd approaching them to come in, he was possibly 10 or 12 feet inside the store. He says he saw some ladies go through the south door and that he saw a lady enter through the north door just two or three steps ahead of Mrs. Todd, and that Mrs. Todd was then almost at the threshold of the store entrance; that this door was opened by the lady just in front of her and was in the process of closing as she came to the threshold; and that it started to close when the lady in front of her released it. This witness is of the opinion that Mrs. Todd held out her right hand to stop the door which was closing toward her, that she lost her balance and threw out her left hand in an effort to catch the south door; that she failed in this respect, and that she then fell, and that just as she started to fall, the witness thinks the north door swung closed and struck her on the right arm. He is of the further opinion that she had started to cross through the doorway and had one foot on the threshold or just inside the entrance to the store, when the door which had been released by the lady in front of her, started to swing to a closed position.

The witness, Joseph Horna, lives in Elgin and is a tool and dye worker. He was present at the store on the night in question waiting for his wife who was employed as a clerk. He states that the closing bell had rung; that it was shortly after 9 o’clock; that he was standing at the front of the store by a dress rack about 5 feet from the entrance; that after the ringing of the closing bell people came into the store; that he saw three ladies and a child come through the door; that these people were followed by Mrs. Todd’s daughter; that when the daughter came through the north door she was immediately behind the three ladies and the child; that one of them had been holding the door open for the others to enter; that Miss Todd entered at this time; that following Miss Todd was an elderly lady coming to the entrance at the north swinging door; that she was almost at the threshold of the right-hand door, which was the north door; that just as she reached this point the door swung shut after having been released by the parties who had preceded her into the store; that she backed up a little and threw up her hands in front of her and fell over; that the north door had almost closed when he saw her throw up her hands; that it had been immediately opened before swinging shut; that she was carrying bundles which she dropped upon throwing up her arms; that she fell across the entrance way on her left side. The witness states that he immediately went to her assistance. The first he saw of Miss Todd after the mother’s accident, was when they were engaged in picking up the packages from the entrance way. This witness and the witness Salisbury helped Mrs. Todd into a taxi in which she and her daughter left.

The witness, George Sterricker, states that he lives in Elgin, is employed at the Elgin Machine Works, and was at the store at the time of the accident. He went to the store shortly before the accident occurred. He says that neither of the doors were standing open when he entered, and that neither of them were standing open while he was there, so far as he observed, except when in use by customers; that he was standing at the front of the store during the entire time; that he heard the closing bell ring; that he saw Mr. Horna and Mr. Thelander; that he saw Miss Todd enter the store through the north door; that he saw her start down the south aisle; that he saw Mrs. Todd approaching the entrance to the store; and that when he first saw her she was about a foot and a half from the doors. It appears that she was in the act of falling at about the time this witness first noticed her. He says that just immediately before he saw her, people had been passing through this door. He saw Mrs. Todd throw up her hands and fall. He states she had several bundles. He does not think she was closer than a foot to the door when she fell, and that she fell to the south. The witness went to her assistance and found her lying with her head about 6 inches from the south show window. He states she was lying on the entrance way to the store between the sidewalk line and the doors. He was with her when Miss Todd came out of the store. He states the first thing that attracted his attention to Mrs. Todd was when he saw her throw up her hands and drop her bundles. He says this was before she reached the doorway and that it appeared like she had lost her balance.

Appellee introduced two rebuttal witnesses, a hardware dealer and a traveling salesman, who gave testimony concerning the character of the equipment on the doors. While their testimony is to the effect that in their opinion the equipment which controlled the operation of the doors was not in perfect condition, yet they were not present on the evening of the accident and had no opportunity to observe the operation of the doors, as did the witnesses who testified in chief.

It is appellee’s contention that appellant is liable under the doctrine of res ipsa loquitur. To render this doctrine applicable, it must be shown that the instrumentality causing the injury was under the control of the defendant, and that the injury was caused by some act incident to such control, and be of such a nature that it would have not occurred but for the defendant’s negligence. Here, the accident might have resulted from one of several causes, for some of which the defendant would not be hable. Swinging doors in store buildings are common to such places of business. They are installed for the accommodation of those who wish to enter the store. Operation of such doors is not within the exclusive control of the proprietor of the store. Persons using them take a distinct part in their operation and are chargeable with the exercise of ordinary care in the use thereof. Injuries may occur in their operation from a lack of due care, either on the part of the person injured or from that of those using the door at or near the same time as the person injured. Under conditions of that character, a proprietor could not be considered liable.

The law raises on the part of a proprietor of a store, an implied invitation to the public to come into his building or upon his premises, should they seek to do business with him; therefore it is held that he is under a legal obligation to exercise ordinary and reasonable care to the end of making his premises safe for the protection of his customers. Under the operation of this principle, the general rule is, that where an appliance or structure not obviously dangerous, has been in daily use for an extended period of time and has proven adequate, safe, and convenient for the purposes to which it was being put, it may be further continued in use without the imputation of negligence. However, the rule which requires a reasonable care on the part of the proprietor, does not demand that he have actual notice of the defect. When he invites members of the public to come upon his premises as customers, he is chargeable with notice of any defect which would or might have been discovered by a reasonable inspection. The rule of ordinary reasonable care requires such inspection.

The evidence on the part of appellee shows that the deceased had been a patron of this store for a long time and was familiar with the operation of the swinging doors which afforded entrance thereto. The evidence further shows that the equipment used on the door was standard; that the weather was chilly and that it had been raining; that the closing bell had rung previous to the time the deceased started to enter the store; and that people were passing in and out of the doors rapidly. Under the evidence in this case we do not consider that the doctrine of res ipsa loquitur applies. A proprietor is not an insurer against all accidents and injuries to customers coming to his place of business.

The doctrine of res ipsa loquitur not applying, we do not think the evidence is sufficient to prove or establish such negligence on the part of appellant as to render it liable.

The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justioe Dove

license: Public Domain

text:
    Bessie McDonald, Appellee, v. A. B. Culhane, Appellant, John F. Walsh, Individually and as Executor of Estate of Patrick H. Walsh, Deceased et al., Appellees.
    Gen. No. 9,356.
    Heard in this court at the October term, 1938.
    Opinion filed January 8, 1940.
    C. H. Linsoott, of Bockford, for appellant; Leonard Lundin, of counsel.
    C. A. Pedderson, of Bockford, for appellee.
   Mr. Presiding Justioe Dove

delivered the opinion of the court.

From that portion of a decree of partition which ordered that the undivided one-sixth interest of John F. Walsh in the premises sought to. be partitioned was subject first to a lien in favor of Helen Krumnga by virtue of a judgment rendered in her favor and against John F. Walsh by the circuit court of Winnebago county on September 5, 1935' and second to a lien in favor of A. B. Culhane, receiver of the Bockford National Bank by virtue of certain judgments which he obtained against the said John F. Walsh on Decern-ber 7,. 1934 and January 28, 1936, the said receiver has appealed.

From the stipulation of the parties, it appears that on December 7,1934, A. B. Culhane, as receiver of the Rockford National Bank, Rockford, Illinois, held a note executed by John F. Walsh for $10,000 and on that day recovered a judgment by confession in the circuit court of Winnebago county, Illinois for the sum of $13,351.18 and costs of suit, upon which judgment execution was issued on December 13, 1934, which was duly returned unsatisfied. It was further stipulated that on August 16,1935 the receiver held as collateral security for the payment of said $10,000 note, upon which judgment had been taken on December 7,1934, certain other notes also executed by Walsh, the payment of which was secured by a mortgage upon certain real estate not involved in this proceeding. That default in the payment thereof had been made and the receiver foreclosed said mortgage in the circuit court of Winnebago county, Illinois. In that proceeding there was included in the amount which the court found to be due the plaintiff the said sum of $13,351.18, being the amount of the judgment rendered in favor of the plaintiff and against Walsh on December 7,1934. The usual decree of foreclosure and sale was rendered and thereafter a sale was held and the property sold for $10,721.49 less than the debt, interest and costs. On January 28, 1936 a deficiency judgment was rendered in said foreclosure proceeding in favor of the said A. B. Culhane, receiver, and against John F. Walsh for $10,721.49, being the amount of the deficiency. On February 5, 1936 an execution was issued upon this deficiency judgment and subsequently returned unsatisfied.

It was further stipulated that from time to time after the rendition of said deficiency judgment there has been applied toward its satisfaction various sums of money so that there remained due from said Walsh to said receiver at the date of the partition decree the sum of $3,801.09 and interest from January 28, 1936. It was further stipulated that on September 16, 1935 Helen Krumnga, appellee herein, recovered a judgment against Walsh in the circuit court of Winnebago county for the sum of $566.05 and costs, upon which an execution issued on September 20,1935, which was subsequently returned unsatisfied.

Upon these facts the trial court held that the first judgment obtained by the receiver against Walsh on December 7, 1934 merged in the deficiency judgment obtained by him in the foreclosure proceeding on January 28, 1936 and that therefore the said judgment of appellee rendered against Walsh on September 5, 1935 was a prior, paramount and superior lien to the said judgment of appellant, and that appellee’s judgment out of the proceeds to be realized from the sale of the interest of said Walsh in the real estate described in the decree for partition shall be satisfied prior to any payment being made to appellant upon the balance due him upon his deficiency judgment of January 28, 1936.

The author of the article on judgments in 15 E. O. L. 791, states that at common law a judgment upon a judgment, being of the same dignity, does not fall within the general rule that a cause of action is merged in the judgment and therefore the first judgment is not merged in the second and that the weight of modern authority favors the view that if a judgment creditor brings an action on his judgment and obtains a new judgment, the first judgment is not merged in the second. What mig’ht be called the minority rule, however, is to the effect, says this author, that the obtaining of a second judgment on a previous one operates as a merger and the extinguishment of the first judgment and its lien irrespective of whether the second judgment is for a less or greater sum. The only Illinois case cited is Dow v. Blake, 148 Ill. 76, 35 N. E. 761. It appeared in that case that on May 6, 1882 the circuit court of Milwaukee county, Wisconsin rendered a decree of divorce dissolving the marriage theretofore existing between the plaintiff Christine Blake and the defendant Barnum Blake and ordering him to pay the plaintiff $2,000 upon her releasing her dower in his real estate. In 1886, the plaintiff filed in the same court her petition alleging that the former provision of $2,000 made for her was inadequate and made under a mistaken estimate of the financial ability of the defendant. Upon a hearing an order was entered on December 24, 1888, to the effect that plaintiff recover the sum of $31,000 from the defendant and that the former order and judgment of May 6, 1882, except as modified and superseded by the order of December 24, 1888 remain in full force and effect. Our court held that the judgment of December 24, 1888 was something more than a modification of or supplement to the decree of 1882, that when it was rendered nothing remained of the decree of 1882 except the provisions annulling the marriage and giving the defendant the custody of the children. “All the rest of that decree,” said the court, “was merged in the judgment of 1888 which was for a definite and specific sum. ’ ’

The author of the article on judgments in 34 C. J. 697 says: “When a judgment is used as a cause of action for the recovery of another judgment the question whether the first judgment is merged in the subsequent judgment is one on which there is much conflict of opinion. One group of authorities holds that merge r is effected, except in certain cases, while another group hold that there is no merger of the first judgment, and that it is not extinguished without satisfaction of the second, especially where the judgments are recovered in different states, and they apply the same rule where the second judgment is auxiliary or collateral to the first. But whichever may be the correct rule, as applied by courts of law, judgments will not be treated as merged by a court of equity if a merger would operate inequitably.”

In this State appellant had a right to sue on the principal note which he held and likewise he had a right to foreclose his mortgage. Karnes v. Lloyd, 52 Ill. 113. He could take these steps at different times or pursue both remedies at the same time. He obtained judgment against Walsh on December 7, 1934. Thereafter he foreclosed his mortgage which he then held as security for the payment of this judgment. This foreclosure proceeding was consummated by an effective sale and the net proceeds thereof applied to discharge the indebtedness due appellant represented by this judgment. After that was done there remained due appellant $10,721.49 for which amount he procured the court to render a new, personal and unconditional judgment against Walsh and it is this new judgment upon which execution was issued and upon which payments have been made so that at the time of the hearing in this case there remained due appellant thereunder the sum of $3,801.09. By these steps appellant’s first judgment became merged in the deficiency judgment rendered on January 28, 1936. Appellant did not apply the proceeds derived from the sale of the mortgaged premises upon his judgment of December 7, 1934 but upon the amount found due him by the foreclosure decree and obtained a new judgment for the balance upon which he had execution issued and upon which he credited any subsequent payments.

In Gould v. Hayden, 63 Ind. 443, it was held that where a judgment was recovered in the common pleas court in Ohio upon a judgment previously rendered in Indiana, that the Indiana judgment became merged in the judgment rendered, by the Ohio court and that all the liens and priorities of the Indiana judgment were thereby released and extinguished. In the course of its opinion, the court said: “Each successive personal judgment is a new ‘debt of record, ’ in which the precedent debt, though theretofore evidenced by a judgment, is as completely merged and absorbed as it would have been if it had been evidenced by note, bill, bond, or any other evidence of debt. If the precedent judgment is merged, as we think it must be, in the succeeding judgment, then it follows of necessity, as it seems to us, that the former judgment is completely extinguished. It has ceased to exist for any purpose; it can not be used again as the foundation of another action, and all its qualities and incidents are lost and swallowed up in the judgment obtained thereon.” The court quoted from Freeman on Judgments wherein that author states that the weight of authority is that whatever may be a cause of action will, if recovered upon, merge into the judgment or decree and that a judgment is extinguished when, being used as a cause of action, it grows into another judgment and when a judgment is so extinguished its effect as a lien is also destroyed. “We are aware” continues the court, “that there are respectable authorities, which are in conflict with our conclusion in this case; but it has seemed to us, after a careful consideration of the main question involved, that our decision thereof is in harmony with and supported by the weight of modern authority, that it is just and right in principle, and that, as a rule of law, it will best subserve and protect the rights of all parties.”

In Bateman v. Grand Rapids & Indiana R. Co., 96 Mich. 441, it was held that where a mortgagee recovers a judgment upon a note secured by a chattel mortgage before a justice of the peace and had previously replevined the mortgaged property, the judgment in the replevin suit in the circuit court in favor of the mortgagor on the ground that there was nothing due upon the mortgage debt in excess of the sum tendered, is a bar to any further proceedings to collect the judgment rendered by the justice of the peace. In Price v. First Nat. Bank, 62 Kan. 735, 64 Pac. 637, it was held that a second judgment upon the same debt, although for a less amount than that recovered in the first, is a waiver of the remainder and an entire extinguishment of the first judgment. The court quotes from Purdy v. Doyle, 1 Paige 557, that “where a creditor has obtained a Hen upon real estate, by a judgment at law, if he subsequently brings an action of debt on his judgment and recovers a new judgment, he will lose his first Hen.” In the instant case appellant did not bring an action of debt on his judgment but his judgment then evidenced the debt secured by his mortgage and when he procured his deficiency decree in the foreclosure proceedings, the result was that the former judgment became merged in the subsequent one and he thereby lost his Hen under the first judgment. In Denegre v. Haun, 13 Iowa 240, it was held that where two judgments obtained in 1847 and 1848 remained unsatisfied and formed the basis of another action in 1854, that the judgment rendered in 1854 for an amount equal to both judgments and costs, that the former judgments were merged in the latter and that the lien created by the former judgments ceased to exist and became merged in the new judgment.

The Supreme Court of North Carolina arrived at a contrary view in Springs v. Pharr, 131 N. C. 191 and held that a creditor who obtained a judgment on December 19,1888, which became a Hen on the homestead of the debtor did not lose his Hen by obtaining a new judgment in 1895 upon the 1888 judgment and that the first judgment was not merged in the second.

The question presented for determination by this record is not free from difficulty and we recognize that the authorities are conflicting but by the course appellant pursued after he secured his judgment in 1934 it seems to us that he is now estopped from insisting that the judgment he then obtained was not merged in the subsequent deficiency judgment of 1936 and the chancellor did not err in so decreeing.

Decree affirmed.


author: Mr. Presiding Justice Dove delivered

text:
    City of Joliet, Appellee, v. Dan O’Sullivan, Appellant.
    Gen. No. 9,447.

      Heard in this court at the May term, 1939.
    Opinion filed January 8, 1940.
    Joseph P. Savage, of Chicago, for appellant; A. D. McMahon and W. P. McLaughlin, both of Chicago, of counsel.
    James G. Holbrook and Charles J. McKeown, both of Joliet, for appellee.
   Mr. Presiding Justice Dove delivered

the opinion of the court.

The Coca-Cola Bottling Company is a Delaware corporation licensed to do business in Illinois and has its principal place of business in Chicago. It is engaged in the manufacture and distribution of a carbonated, nonvinous, nonmalt and nonintoxicating beverage and employs a resident manager in Joliet, where it maintains an office and warehouse. Dan O’Sullivan, on and prior to September 7,1937, resided in Lemont, Illinois, but was employed by the Coca-Cola Company and operated a truck for it out of its Joliet office. This truck, when not being operated by O ’Sullivan, was kept in a garage in Joliet and carried appropriate vehicle licenses issued by the city. At the office of the company in Joliet orders for the delivering of Coca-Cola are received and at the warehouse Coca-Cola is loaded upon this truck of the company and in the course of his duties for the company, O’Sullivan delivers the orders received at the office and also enters various places of business of retail dealers in the city of Joliet and in surrounding nearby cities and villages and sells and delivers to such retailer his requirements without any previous order therefor. Sales are made by him at wholesale in lots for resale and none of the product of the company is sold by O’Sullivan at retail. On September 7, 1937, there was in force in the city of Joliet an ordinance entitled: “An ordinance to regulate and license Peddlers, Itinerant Merchants and Transient Vendors of Merchandise” which provides that “No person, firm or corporation shall engage in, operate as or conduct the business of peddler, itinerant merchant or transient vendor of merchandise in the City of Joliet without first obtaining a license therefor” and fixed the license fee at $25 per year.

Neither O’Sullivan or the company ever procured the license as provided by said ordinance and on September 7, 1937, O’Sullivan was arrested upon a warrant issued by a police magistrate. The case was thereafter appealed to the circuit court of Will county, where a jury was waived and the cause submitted to the court upon the foregoing stipulation of facts. The trial court found the defendant guilty of violating the provisions of said ordinance and from a judgment in favor of the city and against the defendant for $5 and costs, the defendant has appealed.

It is the contention of counsel for appellant that the business in which appellant was engaged on behalf of his employer and the manner in which it is conducted, does not fall under any one of the classifications prescribed in the ordinance and that therefore the trial court erred in finding him guilty and assessing a fine against him.

By the act approved April 10, 1872 municipalities were granted the power to license hawkers and peddlers. Ill. Rev. Stat. 1939, ch. 24, sec. 65.40 [Jones Ill. Stats. Ann. 21.105]. Subsequently these powers were extended by the Act of June 16, 1887, which granted municipalities the power to license, tax, regulate, suppress or prohibit itinerant merchants and transient venders of merchandise. Ill. Rev. Stat. 1939, ch. 24, sec. 74 [Jones Ill. Stats. Ann. 21.625]. In using these terms, the legislature meant other and different individuals than peddlers and hawkers. City of Carrollton v. Bazzette, 159 Ill. 284. The city of Joliet therefore had the power to pass the ordinance involved herein and appellant so concedes. Counsel for appellant insists, however, that neither he nor his employer comes within the meaning of its provisions.

Neither the statute nor the ordinance defines the terms peddler, itinerant merchant or transient vendor of merchandise. Under accepted rules of construction, these words are to be given their ordinary, customary and usual meaning and a peddler is generally understood to be one who travels about selling small wares which he carries with him. The term is so defined by the Century Dictionary. A hawker differs from a peddler only in that he cries his wares or exhibits them for sale. 29 Corpus Juris 219. In City of Belleville v. Hoffman, 289 Ill. App. 155, it was held that one who is engaged in selling wholesale is neither a peddler nor a hawker. Appellant here does not sell to the ultimate consumer but all his deliveries and sales are made to retail dealers and therefore he is not a peddler.

Counsel for appellant insist that the terms “itinerant merchants” and “transient vendors of merchandise” cannot be differentiated and as used in the Act of 1887 and in this ordinance and must be construed to have the same meaning. In this connection our attention is called to sec. 158 of ch. 121½, Ill. Rev. Stat. 1939, [Jones Ill. Stats. Ann. 15.46], where the term “transient merchant” as used in the Act of July 3, 1931 to license and regulate the business of transient merchants is defined, so far as material here, to mean any person, firm, association or corporation engaged temporarily in a retail or wholesale sale of goods, wares or merchandise in any place in this State and who, for the purpose of conducting such business, occupies any lot, building, room or structure of any kind. Such terms shall not be construed to apply to any person selling goods, wares or merchandise of any description raised, produced or manufactured by the individual offering the same for sale. Our attention is also called to the definition of itinerant vendor as used in the Act of June 7,1911, which was an act to prevent and punish fraud in sales of merchandise by itinerant vendors and to regulate all such sales. This act was repealed by the act approved July 3, 1935 but it defined itinerant vendor to mean and include all persons who engage in or conduct in this State, either in one locality or in traveling from place to place, a temporary or transient business of selling goods, wares and merchandise, with the intention of continuing in such business in any one place for a period of not more than 120 days, and. who for the purpose of carrying on such business use, lease or occupy, either in whole or in part, a room, building or other structure for the exhibition and sale of such goods, wares and merchandise and expressly stated that the provisions of the act should not apply to sales made to dealers by commercial travelers or selling agents in the usual course of business. It is true that the definitions given in these acts were by the provisions of each act expressly limited to the act where the terms transient merchant and itinerant vendor were used but it was the same legislative body which in 1887 empowered Joliet to enact the ordinance involved herein which so defined them and the definitions at least reflect the legislative mind.

Bouvier’s Law Dictionary defines itinerant as “wandering; travelling; who make circuits.” The Century Dictionary defines an itinerant “as one who travels from place to place especially on a circuit in the discharge of a duty or the pursuit of business, as an itinerant judge or preacher.” This authority defines a merchant as 1 ‘ one who is engaged in the business of buying commercial commodities and selling them again for the sake of profit.” Bouvier defines merchant as' one whose business it is to buy and sell merchandise. The Century Dictionary defines transient as “one who or that which is temporary, passing or not permanent” and a vendor as “one who vends or sells; a seller.” And Bouvier defines vendor as the seller or one who disposes of a thing in consideration of money.

In City of Carrollton v. Bazzette, supra, it appeared that Bazzette opened a store in Carrollton, stocked it with goods and sold as other merchants do, but had no intention of permanently conducting a store at that location. The court held that the license fee of $10 per day imposed by ordinance was unreasonable but said that defendant was an itinerant merchant within the meaning of the city ordinance. In Twining v. City of Elgin, 38 Ill. App. 356, the court defined the words itinerant and transient as used in the Act of 1887 and in the ordinance of the city of Elgin passed pursuant thereto and said that the word transient as applied to vendors of merchandise is of the same signification as the word itinerant. “We understand” said the court “that the terms ‘itinerant merchant’ and ‘transient vendor of merchandise, ’ as used in the act last above referred to, mean and were intended to apply to those persons who for a short space of time locate in a city and make sale and delivery of their goods, as other merchants do, or those who carry or transport their goods from house to house, or place to place, and malee sale and delivery of their goods in like manner as other merchants or salesmen do.”

From the stipulation of facts appellant is not a peddler because he sells at wholesale. He is not a hawker for the same reason and for the additional reason that he does not cry his wares. We do not think he is an itinerant merchant within the meaning of this ordinance because he does not conduct his business at a fixed location or store, nor can it be said his business is temporary or of short duration. Furthermore, ordinarily a merchant buys as well as sells, although, of course, instead of buying he could manufacture or compound the commodity he sells. Therefore appellant is either a transient vendor of merchandise or else the city ordinance requiring him to be licensed does not apply.

Counsel for appellee insist that a transient vendor of merchandise is one who transports his goods from place to place for sale and delivery either at wholesale or retail; that the words itinerant and transient do not have the same meaning and that the legislature intended the term transient vendor to be distinguished from the term itinerant merchant and in this connection call our attention to the fact that appellant’s duties include not only the solicitation of new business but that upon frequent occasions he enters the retailer’s place of business, who may or may not be a customer, and sells and delivers to him his requirements. It is true that the word vendor does include a wholesaler as well as a retailer and it is true that appellant transports his employer’s product from place to place but the word transient as here used excludes the quality of permanency. A transient vendor is one who sells goods for a short period of time without any intention of becoming a permanent dealer. Here appellant’s employer maintained a permanent place of business, having an office and warehouse in Joliet and it was from this permanent warehouse that appellant made deliveries and distribution. He had a regular route and served regular customers. He did not sell at retail but wholesale only. As to Joliet and that community, appellant or his employer cannot be said to be a transient as used in this ordinance. Under the foregoing definitions and the accepted, customary, usual and ordinary meaning of the terms employed by this ordinance, we do not think appellant can be held to be a transient vendor of merchandise and the trial court erred in not so holding.

The judgment appealed from will be reversed.

Judgment reversed.


author: Mr. Presiding Justice Dove

text:
    William D. Whyte, Appellee, v. Alvah L. Rogers, Executor of the Last Will and Testament of Jens H. Larsen, Deceased, Appellant.
    Gen. No. 9,402.
    Heard in this court at the February term, 1939.
    Opinion filed January 8, 1940.
    Hall & Hulse, of Waukegan, for appellant; Harry A. Hall and Marshall Meyer, both of Waukegan, of counsel.
    Charles L. Whyte and Gerald C. Snyder, both of Waukegan, for appellee; Lewis D. Clarke, of Wau-kegan, of counsel.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

This is a suit brought by William D. Whyte to recover a real estate commission. The suit was instituted against Jens H. Larsen, who died during the pendency of the suit, and his executor Alvah L. Bogers was substituted as party defendant. At the conclusion of all of the evidence the trial court directed a verdict for the plaintiff for $1,750, upon which judgment was rendered and the defendant appeals.

The record discloses that on May 10, 1937 Jens H. Larsen was the owner of a three-story brick building located in the business section of Waukegan and that appellee William D. Whyte was a regularly licensed real estate broker having an office in Waukegan. On that day they each executed the following instrument:

‘‘ Sales Agreement
May 10th, 1937
“In consideration of your placing upon your books my Real Estate described as follows:
Three Story Brick Building
Location #130 North Genesee Street
Waukegan, Illinois Lot 23 x 131.34
North 1/3 of Lot Two (2) in Specials All Paid
Block Eleven (11) in Original Up In Full
Town of Little Fort (now City of Waukegan)
“I hereby give you exclusive Agency to sell said property from this date until October 1st, 1937 and thereafter until terminated by us. You are authorized to sell said property for a price of
$35000.00, $15000.00 Cash Balance On Or Before Five Years at 6% interest, payable semi-annually
or any lesser price which I may accept.
“There is an existing first mortgage of $5000.00
Maturing...............years at........% interest.
“Taxes and insurance pro-rated to date of closing of transaction and Merchantable Abstract or Guaranty Policy to be delivered.
“Your commission in case of a sale by you or during the period of your exclusive agency shall be Five (5%) % of the price at which the property is sold.
J. H. Larsen, (seal)
Accepted:
Wm. D. Whyte (seal)
Valuation 7910
Doc 175410 Trust Deed to G. S. Farmer, Trustee 12-1-17 for $15000.00 — This has been reduced to $5000 Peter Peggie”

Immediately thereafter appellee prepared a chart showing the physical division of the building for business purposes and a statement of the expenses for coal, insurance, taxes and income was prepared, the insurance thereon examined and a notation made thereof, and these were duly filed and placed on the books of appellee. On May 12, 1937 appellee contacted a prospective purchaser, Lee Wineske, took him to the property, discussed with him the terms of the leases thereon and endeavored to interest him in its purchase and a few days later a complete statement which appellee prepared analyzing the expense and income from the building was delivered to Wineske and on two or three subsequent occasions appellee discussed with him the purchase of this building. Jacob Blumberg and Sons owned the properties north and south of the Larsen building and on July 2, 1937 Jacob Blumberg agreed to purchase the Larsen property upon the terms specified in the agreement of May 10, 1937 and on that day delivered to appellee his check for $1,000, which was afterwards certified and thereafter cashed, but due to the fact that Mr. Larsen refused to complete the sale, the money was returned by appellee to Blumberg.

On June 4, 1937 J. H. Larsen wrote a letter which was thereafter duly received by appellee and this letter is as follows:

“June 4, 1937
“Dear Mr. Whyte,
“On or about May 12 1937 I executed an agreement giving you the exclusive agency for the sale of my property at 130 N. Genesee St. Waukegan. After some consideration I have decided to withdraw the property from sale at this time, and inasmuch as no consideration was paid me for the agreement, I hereby notify yon that it is cancelled effective immediately.
“My understanding from your conversation with my daughter, Mrs. Ernest Bidinger, is that you have not taken action towards selling the property, nor made any expenditure of any kind, and this withdrawal therefore will not result in any harm to you.
“Please take note accordingly and return the agreement given you.
“Tours very truly,
J. H. Larsen.”

Counsel for appellant insist that the instrument executed by appellee and appellant’s testate on May 10, 1927 was merely an offer by Larsen to pay appellee a commission only in case of a sale, that it was executed without consideration and revoked prior to performance on the part of appellee and that therefore the trial court erred in refusing to give a peremptory instruction to find for appellant. In support of this contention, appellant cites Wolber v. Chambers, 128 Ill. App. 624; Pretzel v. Anderson, 162 Ill. App. 538; Young v. Trainor, 158 Ill. 428; Wozniak v. Siegle, 226 Ill. App. 619; Goetz v. Ochala, 180 Ill. App. 458; Wentworth v. Mann, 178 Ill. App. 621; Des Rivieres v. Sullivan, 247 Mass. 443, 142 N. E. 111, and Barnard v. Gardner Inv. Corp., 129 Va. 346, 106 S. E. 346. It appeared in the Wolber case, supra, that the contract obtained from the purchaser by the real estate dealers was upon terms different in several respects from those upon which the brokers had been authorized by the owner of the property to sell and that therefore the plaintiffs had not proved that they had found a party ready, willing and able to purchase upon the very terms prescribed by the owner. In Pretzel v. Anderson, supra, the court held that the contract between the owner and real estate broker was without consideration, not under seal, revocable at will and that the services sued for were rendered after the revocation of the agency contract. The instrument upon which recovery was sought by the real estate broker in Des Rivieres v. Sullivan, supra, was as follows: “Boston, January 18,1923. I hereby employ W. F. Des Rivieres as exclusive agent to sell my houses at 389 and 391 Salem Street, Medford, Mass., for a price of not less than twelve thousand ($12,000.00) dollars, and I agree to pay him a regular broker’s commission, in any event, when a sale is consummated. W. F. Des Rivieres is to do his advertising and showing of the property at his expense. Marie M. Sullivan.” The court held that this instrument was an offer on the part of the owner to pay the plaintiff a broker’s commission when the contemplated transaction was performed by him, that the defendant’s promise was unilateral and without consideration until the performance of the condition and could be revoked at any time before performance by the plaintiff; that the defendant’s offer to the plaintiff was to pay the commission when a sale was consummated and before he was entitled to recover he was required to produce a purchaser and bring the transaction to the defendant’s notice. It should be observed that the instrument in the Des Rivieres case was not under seal, did not purport to grant an exclusive agency to the broker for any definite fixed time and the court held it was revoked when the property was sold by the owner to ■ one whom the plaintiff did not produce. In Barnard v. Gardner Inv. Corp., supra, it appeared that on June 27, 1919 the owner executed an instrument reciting that it was given for a consideration of $1 and by its provisions the owner appointed a real estate broker her exclusive agent to make sale of her home. On July 3,1919 before the broker had done anything thereunder, the owner wrote that she had reconsidered and revoked the instrument. The evidence disclosed that there was no consideration for the execution of the instrument by the owner of the property and the court held that notwithstanding the recital of a consideration in the agreement, it was proper, inasmuch as the instrument was not under seal, to introduce such evidence, the effect of which was to contradict that recital and that inasmuch as there was in fact no consideration, the owner had a right to revoke the contract in good faith at any time prior to sale. We have examined the other cases cited and relied upon by appellant but the facts in all are distinguishable from the facts in the instant case.

In our opinion this agency agreement gave appellee an exclusive agency to sell the Larsen property from the date thereof until October 1, 1937. There was no issue of fraud, undue influence or any equitable reason advanced by the pleadings or proof why the agreement should not be enforced. This agreement was under seal and must be regarded as having been made upon a sufficient consideration. Guyer v. Warren, 175 Ill. 328; Forthman v. Deters, 206 Ill. 159; Adams v. Peabody Coal Co., 230 Ill. 469. In speaking of a release of a cause of action under seal, our Supreme Court in Woodbury v. United States Casualty Co., 284 Ill. 227 said: “It is well settled in this State that in an action at law a release under seal by a person of his cause of action is a complete bar unless its execution is shown to have been obtained by fraud. Such a release carries with it the presumption that it was executed for a valuable consideration, and no evidence can be introduced for the purpose of showing that there was no consideration for the giving of the instrument. To do so would be to permit one to deny his receipt of the consideration expressed for the purpose of making void a sealed instrument, which under the law in this State is not permissible in any case. Before such an instrument can be impeached for fraud relating merely to the consideration and not to its execution, resort must be first had to a court of equity to set it aside for such fraud. (Citing cases.) The same rule does not apply, however, where the suit is on a simple contract or one not under seal. ’ ’

Counsel for appellant next insist that the trial court erred in sustaining objections to two questions propounded to Anna Bidinger, a witness produced by appellant. The record discloses that Mrs. Bidinger testified that she was the daughter of Jens Larsen and that he was past 79 years of age on May 10, 1937 and was living with her in Waukegan at that time, that he was quite feeble and his eyesight poor and that on May 11, 1937 she had a telephone conversation with appel-lee. She was then asked this question: ‘ ‘What did you say to Mr. Whyte and what did he say to you at that time?” The court sustained an objection thereto and counsel then asked this question: “Mrs. Bidinger, what was true with regard to any business transactions of your father, did you from time to time handle them?” The court also sustained an objection to this question and counsel then continued his further examination of this witness. The record does not disclose that counsel made any statement of what he expected the witness would answer and the record is silent as to what appellant expected to prove by this witness. In his argument in this court, counsel states that the court refused to permit this witness to testify that she acted as agent for her feeble, elderly father and refused to allow her to testify as to her acts and conversations as such agent. What Mrs. Bidinger’s answers would have been had the court permitted her to answer does not appear from the record. Had counsel followed the rulings of the trial court by stating what he expected to prove and made an offer of such proof and had an objection then been made to the offer and had the trial court sustained such objection to such offer, the record then would be in condition to present the correctness of the trial court’s rulings to this court and we would then be in a position to pass upon this assignment of error. Anthony Ittner Brick Co. v. Ashby, 198 Ill. 562. In Howard v. Tedford, 70 Ill. App. 660, it was insisted upon appeal that the trial court erred in excluding answers to two questions asked a witness upon the trial. In its opinion the court said:

“That this ruling was erroneous can not be urged here, for counsel neglected to make known by proffer or otherwise, what he would prove by the answers sought. The trial court could not pass on the relevancy or materiality of the testimony excluded upon the motion for a new trial; nor can this court determine that its exclusion was in any degree prejudicial to appellant.” In Owens v. Guerney, 241 Ill. App. 477 it appeared that the trial court had sustained an objection to a question propounded to two physicians who were asked whether or not the injuries sustained by the plaintiff were or were not permanent. This court held the trial court should have permitted the questions to be answered but that appellant had not preserved his record so as to justify a reversal inasmuch as no offer was made to show what the answer would be and that in order to predicate error on the refusal to allow a witness to testify, the person making such complaint must show by the record what the testimony of the witness would be if he had been allowed to testify and preserve his objections to the ruling after making such offer of proof. Rost v. F. H. Noble & Co., 232 Ill. App. 430.

Finding no reversible error in this record, the judgment of the circuit court will be affirmed.

Judgment affirmed.


author: Mr. Justice Dove

text:
    Christine Doellefield, Appellant, v. Travelers Insurance Company and G. A. Brodine, Appellees.
    Gen. No. 9,414.
    Heard in this court at the February term, 1939.
    Opinion filed January 8, 1940.
    Rehearing denied February 6, 1940.

      Smith & Menzimer and Hall & Dusher, both of Rockford, for appellant.
    C. H. Linscott, of Rockford, for appellees.
   Mr. Justice Dove

delivered the opinion of the court.

This suit was instituted by Christine Doellefield against the Travelers Insurance Company and Gr. A. Brodine and is based upon an insurance policy issued by the Travelers Insurance Company. The policy insured the life of Eyner C. Peterson in the sum of $10,000 and is dated July 26, 1926 and had attached thereto an additional indemnity provision by which the company agreed to pay the beneficiary, Christine Peterson, now Christine Doellefield, the plaintiff herein, an additional $10,000 upon receipt of due proof that the death of the insured resulted from bodily injuries effected directly and independently of all other causes through external, violent and accidental means. The premium on this additional insurance was $1.10, payable monthly. Gr. A. Brodine was the general agent of the company and resided in Rockford and in one of the counts of the complaint it was alleged that prior to the death of the insured and by virtue of an agreement had between Brodine and the insured, the premium had been paid to him and in the third count of the complaint, it was charged, among other things, that the agent, Brodine, had failed to pay the premium under a specific agreement which the insured had with him and sought a judgment against him individually. The defendants answered, denying the payment of the premium as alleged and traversing the allegations that the defendant, Brodine, had agreed to pay the premiums. The issues thus made were submitted to a jury, resulting in a finding for both defendants upon which judgment was rendered and the plaintiff appeals.

The record discloses that appellee Insurance Company had issued to Eyner C. Peterson two policies of insurance, one an accident policy and the other is the policy which forms the basis of this suit.

On November 3, 1932, the insured was accidentally drowned and subsequently the company paid the amount due under the accident policy and the insurance under the provisions of the policy involved herein other than the insurance called for by the additional indemnity rider, is being paid monthly as provided in the policy. This additional indemnity contract, so far as material, provides that the additional sum of $10,-000 would be paid by the company only in the event that the accident which should cause the death of the insured should occur before a default in the payment of any premium required under the indemnity provision or under the life contract. It is the sole contention of appellees that the insured defaulted in the payment of the monthly premium of $1.10 on September 26,1932 and that the company is therefore not liable. The contention of appellant is that the insured and Brodine had an agreement which was acceptable to the company, whereby Brodine had charged the account o'f Peterson upon the books of the company with the premium due September 26, 1932, that after the death of Peterson the books were changed but so far as the company was concerned there was a payment of the premium due September 26, 1932 which kept the policy, including the additional indemnity rider effective until October 26, 1932 when another premium became due, that while the premium due October 26th was not paid, the policy provided for a grace period of 31 days and as Peterson’s death occurred on November 3, 1932, it was within the grace period.

Inasmuch as the judgment must be reversed because of erroneous instructions, it is not necessary for us to detail the evidence or comment upon it.

The first instruction given at the request of the defendants stated that “while the law permits a plaintiff in a case to testify in her own behalf, nevertheless the jury have a right, in weighing her testimony and determining how much credence is to be given to it, to take into consideration the fact that she is the plaintiff and has an interest in the result of the suit. ’ ’ Defendants ’ fourth given instruction told the jury that “ while the law permits the defendant in the case to testify in his own behalf, the jury have no right to discredit his testimony from caprice or merely because he is the defendant.” It has been held proper to give an instruction similar to the first instruction where a corporation is sole defendant and the plaintiff an individual and the only directly interested witness who testifies. Chicago & E. I. R. Co. v. Burridge, 211 Ill. 9. In the instant case G. A. Brodine is a defendant and testified and his testimony and that of the plaintiff were conflicting. Where both plaintiff and defendant are natural persons it has been held error to give such an instruction. Engstrom v. Olson, 248 Ill. App. 480. The jury in the instant case were told by the first instruction that the law permitted the plaintiff to testify but that she was interested in the result of the suit and for that reason her testimony might be discredited, but in the fourth instruction they were told that they should not discredit the testimony of the defendant merely because he was the defendant. The giving of these instructions in this case, in our opinion, was such error as necessitates a reversal of this judgment.

Counsel for appellee insists that as no written motion for a new trial was made, the error in giving these instructions is not preserved for review. Section 68 of the present Civil Practice Act [Ill. Rev. Stat. 1939, ch. 110, § 192; Jones Ill. Stats. Ann. 104.068] provides that a party desiring to make a motion for a new trial shall file the points in writing particularly specifying the grounds of such motion. Section 77 of the former act was identical so far as the matter now under consideration is concerned. In People v. Cohen, 352 Ill. 380, the court said:

“Section 77 of the Practice Act directs the party moving for a new trial to file the points in writing, particularly specifying the grounds of his motion. This court has held that that section is directory and not mandatory, and that if the party moving for a new trial makes either a written or verbal motion for a new trial without stating in writing the grounds therefor and without objection, the requirement of such statement is waived. If certain points in writing particularly specifying the grounds of a motion for a new trial have been filed, the party filing the same will be deemed to have waived all causes for a new trial not set forth in his written grounds and in the Appellate Court will be confined to the reasons specified. If the motion has been submitted without specifying the grounds therefor in writing, the party may avail himself of any cause for a new trial which may appear in the record, whether it be the admission or rejection of evidence, the giving or refusing of instructions, the lack of sufficient evidence, or any other error occurring on the trial. The above holding by this court is applicable to both civil and criminal cases. ’ ’

The report of the proceedings embodied in the transcript of the record in this case discloses that plaintiff moved the court to set aside the verdict and grant a new trial, that this motion came on for hearing and the court having heard the arguments of counsel and being fully advised in the premises, overruled the motion for a new trial, refused to grant a new trial and rendered judgment on the verdict. Huber v. Van Schaack-Mutual, Inc., 368 Ill. 142 and other cases cited by appellee where no motion for a new trial either oral or written was made and Ulbricht v. Western Coach Lines, 289 Ill. App. 164, where a written motion was filed specifying the grounds for a new trial but which did not assign the giving or refusal of instructions as a reason why a new trial should be granted are not in point.

Under our practice the party moving for a new trial may be required by the court upon motion of the opposite party or upon the court’s initiative to file the points in writing particularly specifying the grounds of such motion. If the motion is submitted to the court without any statement in writing of the points relied upon and without objection either by court or counsel, the requirement of the practice act is waived and the moving party may avail himself of any cause for a new trial which may appear in the record. Yarber v. Chicago & Alton Ry. Co., 235 Ill. 589. If certain points in writing particularly specifying the grounds of the motion have been filed, the party filing the motion will be deemed to have waived all reasons not specified. Ulbricht v. Western Coach Lines, supra.

For the error in giving the instructions referred to the judgment of the circuit court of Winnebago county will be reversed and the cause remanded.

Reversed and remanded.


text:
    Frances B. Patterson, Appellee, v. Durand Farmers Mutual Fire Insurance Company, Appellant.
    Gen. No. 9,423.

      Heard in this court at the February term, 1939.
    Opinion filed January 8, 1940.
    George T. Liddell, of Rockford, for appellant.
    Lathrop, Lathrop, Brown, & Lathrop, of Rockford, for appellee.
   Mr. Presiding Justice Dove

delivered the opinion of the court.

On March 10, 1937 Frances B. Patterson, acting through her husband as agent, applied to the Durand Farmers Mutual Fire Insurance Company for insurance upon a dwelling house located on the land, the title to which at that time was in Sam Schreiber, trustee in bankruptcy of Everett C. Patterson, the husband of said Frances B. Patterson, and on the same day the Insurance Company issued its ordinary fire policy purporting to insure “the inchoate dower right of Frances B. Patterson against all direct loss and damage by fire and lightning in the amount of Eighteen Hundred Dollars” on the dwelling house described in the policy. Among other provisions, this policy contained the following: “This entire policy shall be void unless otherwise provided by agreement in writing (a) if the interest of the insured be other than unconditional and sole ownership; or (b) if the subject of insurance be a building on ground not owned by the insured in fee simple.” The premium upon this policy was $17.63, which was paid. On April 2, 1937 the dwelling house was destroyed by fire and thereafter due proof of loss was furnished the company as provided by the policy. The dwelling was worth $1,800 at the time it was destroyed by fire. Thereafter, the company having refused to pay, this suit was instituted in the circuit court of Winnebago county, resulting in a judgment in favor of the plaintiff for $1,926 and the defendant appeals.

The question for determination is whether appellee, who had an inchoate right of dower in the land upon which the dwelling house which was destroyed by fire stood, had an insurable interest therein. In this State an inchoate right of dower is a mere intangible, contingent expectancy and its value unascertainable. In Cowan v. Kane, 211 Ill. 572, it was so held, the court stating that whether the right will ever become more than an expectancy depends upon the wife surviving the husband and this may not occur. In Bennett v. Bennett, 318 Ill. 193, our court expressly held that a wife’s inchoate right of dower, in an estate in land, does not rise to the dignity of a vested right and before it has been consummated by the death of the husband is a mere expectancy. In the early case of Summers v. Babb, 13 Ill. 483, it was stated that the right to dower rests in action only. Before assignment it cannot be aliened by the widow nor sold on execution against her. She may release it to the owner of the fee but can not transfer it to a stranger. It attends the estate and is only severed from it by assignment and when assigned it then becomes the subject matter of sale and transfer. Bouvier states that it is not such a vested right or interest as cannot be taken away by legislative action and that until the death of her husband, the wife’s right of dower is not an interest in real estate of which value can be predicated and in Shaeffer v. Weed, 8 Ill. (3 Grilm.) 511, it was held that a wife’s claim for dower is not subject to mechanic’s liens.

Humphrey v. Clement, 44 Ill. 299 was a suit to compel specific performance of a contract for the sale and conveyance of a tract of land. It appeared that the seller tendered a deed which the buyer refused to accept and the reason why he refused to accept it was because the wife of the seller had not released her dower. The chancellor decreed a conveyance upon payment of the purchase price, the decree providing that in case the wife of the seller refused to join in the deed that then the buyer might retain $250 out of the purchase money. The Supreme Court held that the decree in so far as it authorized the retention by the purchaser of $250 as an indemnity against the contingent right of dower was erroneous, the court saying: “In fixing $250, or any other sum, the court is simply making a guess — as mere a guess as if we were to undertake to say, whether a white ball or a black ball would be drawn by lot from an urn containing an equal number of each color. If the husband were dead, the value of the wife’s dower might be approximately estimated by the tables of mortality, though even these tables, while furnishing reliable evidence of the value of a considerable number of lives, taken in the aggregate, are but an uncertain guide in fixing the probable duration of any individual life.

“But the fact in the present case, which reduces the decree to a mere guess, is, that the husband is still living, of about the same age and health of the wife, and, therefore, with at least equal probabilities of surviving, and yet the court must necessarily base its decree on the theory that the wife is to be the survivor. Yet we have no evidence, or indication even, that such will be the fact, and the foundation for the decree is therefore utterly wanting. ... we regard the decree as wrong in principle. It is an instance in which a court of chancery, in an extreme anxiety to do equity, really does a wrong, for want of the means with which to act. ... It (the court) can give him (the purchaser) the husband’s title, but it cannot compel the wife to release her dower, and it cannot decree compensation when there is no basis whatever for determining the amount.”

Appellee cites and calls to our attention Firebaugh v. Wittenberg, 309 Ill. 536; Ratzman v. Ratzman, 333 Ill. 461 and other authorities to the effect that an inchoate rig’ht of dower is an encumbrance within the meaning* of a contract to convey a merchantable title to land and that it is a valuable and substantial right or interest which cannot be divested or prejudiced without the wife’s consent, given in the manner provided by law. This is true. Counsel also call our attention to the case of Dogle v. American Fire Ins. Co., 181 Mass. 139 and Home Ins. Co. v. Mendenhall, 164 Ill. 458. In this last case it appeared that a policy of insurance was issued by the defendant to J. A. Mendenhall on two dwellings located on 80 acres of land purchased by the father of the plaintiff at a master’s sale. At the time of the issuance of the policy, October 27, 1889, the father had not received his deed from the master but had placed his son, the plaintiff, in possession thereof, for whom he had purchased the land, had informed his son that it was his and that he had made a will devising the premises to him. The son continued in possession and received the rents and profits and paid the taxes thereon. On March 5, 1894, during the life of the policy, the buildings were destroyed by fire and in sustaining a judgment against the company upon its contract of insurance and in favor of the plaintiff, the Supreme Court said that the title of the plaintiff was one in expectancy, but under certain conditions was sure to ripen into one absolute and that where the title of one is such, though not in fee, that he would suffer a loss or damage by the destruction of the premises, he may protect his interest, whatever may be the nature of it, by insurance. The court held that the plaintiff had a reasonable expectancy of inheriting and becoming the owner in fee, that his relation to the property was such that its destruction involved pecuniary loss to him and that therefore he had an insurable interest. “In the case here presented” said the court after referring to numerous authorities, “appellee (plaintiff) did not have a title in fee, but he had such an interest that pecuniary loss would have resulted to him in case of destruction of the premises by fire. The interest he had, such as it was, was fully disclosed to the agent of appellant, and appellant cannot now insist upon a forfeiture for the reason that the title of appellee was not as conditioned in the policy, when the full condition of this title was known to the insurer through its agent.”

Doyle v. American Fire Ins. Co., supra, was a suit brought by a tenant by curtesy to recover for the loss of a barn and its contents, occasioned by a fire. The title to the land upon which the barn stood was in the wife of the plaintiff and the only interest the plaintiff had was an inchoate right of curtesy. In holding that the plaintiff was entitled to recover the court cited Harris v. York Mut. Ins. Co., 50 Pa. St. 341 where it was held that a tenant by curtesy before the death of the insured’s wife had an insurable interest. The court also cited Clark v. Dwelling-House Ins. Co., 81 Me. 373 and Traders’ Ins. Co. of Chicago v. Newman, 120 Ind. 554 where it was held there could be no recovery. The court then said “We think that the tendency of the modern decisions is to relax the stringency of some of the earlier cases, and to admit to the protection of the contract all property standing in snch a relation to the person seeking insurance that its loss would probably directly affect his pecuniary condition. Under the statutes that we are considering, a tenant by the cur-tesy initiate has an inchoate right which is recognized and protected by law. Whether in any case it will become vested in a title depends on a contingency. The existence of such a right in real estate which has been conveyed away by the wife is an incumbrance upon the property, within the meaning of the common covenant against incumbrances. A grantee holding such a covenant, who procures a release of the right may recover from his grantor any reasonable sum paid to remove the incumbrance. Harrington v. Murphy, 109 Mass. 299. That the vesting of the right in an absolute title depends on a contingency does not affect the fact that it has a prospective value. So long as the right is recognized by the statute, this ought not to prevent the holder of it from bargaining for indemnity against its loss. The statutes in Pennsylvania and Massachusetts differ from those in Maine and Indiana by distinctly recognizing the rights of a tenant by the curtesy by name, while in the latter States tenancy by the cur-tesy is abolished, and the right of the husband depends on a statute of descent and on a limitation of the wife’s right of disposal of her real estate. Under the statutes of the two former States a husband’s right by the cur-tesy cannot be taken by the wife’s creditors, either before or after her death. In that respect it is like a wife’s right of dower. We are of opinion that under our statutes and decisions, a tenant by the curtesy initiate has an insurable interest in ordinary buildings on his wife’s land. It is contended that the value of such an interest in a building at the time of a fire cannot be estimated, and that, therefore, inasmuch as a contract for fire insurance is a contract for indemnity and not for profit, the contract cannot be enforced because the damages are incapable of assessment. This argument is not without force, and it justifies hesitation in holding such an interest to be insurable. In many cases it would require a balancing of probabilities on very uncertain grounds, but inherently it presents no question different in kind from those that often arise in court when the probable length of a particular life must be ascertained. In deciding it we have to determine the probable length of life of each of two persons. For ordinary cases there are tables in common use. Facts peculiarly affecting individual cases can be shown by testimony. In the case of a young husband in perfect health, whose wife is in the last stages of a disease well known to be fatal, it cannot be held that his inchoate right as tenant by the curtesy of her real estate is valueless, or that there would be great difficulty in determining its value. On principle there is no good reason for saying that such an interest in a husband is not insurable because its value depends upon the probable length of each of two lives. In many cases in which damages must be assessed for personal injuries, there is as much uncertainty as in estimating the present value of an inchoate right by the curtesy. The value of such rights must be determined whenever they come in question in suits upon covenants against in-cumbrances.”

This opinion recognizes the difficulty of assessing damages in a case like the instant one and states that in many cases it would require the balancing of probabilities. We agree with this statement and also with what was said in Humphrey v. Clement, supra, to the effect that if this judgment is to be sustained it must be based upon the theory that appellee is going to survive her husband, and having assumed that the court must then determine the amount of the value of her inchoate right of dower by guess.

In Harris v. New York Mut. Ins. Co., 50 Pa. St. 34, cited and relied upon by the Massachusetts court in Doyle v. American Fire Ins. Co., supra, it was held that under the statutes of that State, a husband as tenant by curtesy had a vested interest in his wife’s real estate and not a mere expectancy in the event he survived her and that his interest therein being vested, it was an insurable interest and he could effect a valid insurance thereon in his own name.

In Clark v. Dwelling-House Ins. Co., supra, referred to in Doyle v. American Fire Ins. Co., supra, it was held that a husband has no insurable interest in his wife’s property. After stating that the statutes of Maine had removed the last vestige of the common law marital rights of a husband in the real estate of his wife, the court said: “He would be no more affected by the burning of her house, than he would by the burning of any house which he was merely occupying rent free, or which he might possibly inherit. It has never been held, as far as we know, that a son has an insurable interest in the property of his father, which he had only a chance of inheriting. Nor has it been held, to our knowledge, that a mere occupier, without any estate, or claim of right has an insurable interest. The burning of this house undoubtedly subjects the plaintiff to inconvenience, and perhaps to the expense of providing another home. So would he, had he been living rent free and at sufferance in the house of his father, or brother, or son, in which he had no estate. While he may be affectionately concerned about his wife’s property, we do not see that he has any pecuniary interest in it, legal, equitable, or even ponderable, or which the courts can measure, or which he can insure under our law. We have examined the judicial decisions in other states, holding that a husband has an insurable interest in his wife’s property, and we think it will be found in all of them that the husband had by the law some fixed cognizable estate, or interest, in his wife’s property, which the wife could not divest. A loss of the property by fire was, in such case, a direct pecuniary loss to the husband. The possible estate the husband may acquire by descent after the death of his wife, if he survives her, and she be solvent, has no existence before her death. Before her death he has no estate, but only a chance of acquiring one. The wife’s right of dower exists in her husband’s lifetime, though it is then inchoate; but we know of no case where a wife has attempted to insure such a right. ’ ’

“A widow has an insurable interest in land in which she has a dower estate to the value of her dower interest. But the wife in possession with the husband of his property although with inchoate right of dower has no insurable interest therein.” 26 Corpus Juris 36. In support of the text the author cites Traders Ins. Co. of Chicago v. Newman, 120 Ind. 554 which was cited and commented upon in Doyle v. American Fire Ins. Co., supra. In that case James M. Newman and Elvira J. Newman, his wife, brought a joint action on an insurance policy issued by the defendant to the husband alone. It appeared in that case that the legal title to the premises upon which the property destroyed was located was in Elvira Newman, the wife, and the court held that the husband, under the law of that State, had no present right of enjoyment and no interest in the rents and profits of his wife’s real estate; that all he had was a mere expectancy, and that if a fire destroyed the improvements he met with no pecuniary loss any more than if the marriage relation did not exist between himself and the owner; that inasmuch as the policy was issued to the husband, a right of action thereunder was solely in him, but that inasmuch as he had no insurable interest in the property, the contract of insurance was unenforcible.

This insurance policy did not insure the dwelling which was destroyed by fire but insured appellee against all direct pecuniary loss which she might sustain by reason of its destruction. It was a contract to pay an amount of money equal to the loss appellee has suffered. If she was not legally damaged, she can maintain no action on the policy. A policy of insurance has been defined as a contract whereby for an agreed premium, one party undertakes to compensate the other for loss on a specific subject,' by specific perils. Bouvier Law Dictionary. Indemnity against loss is the essence of a contract of insurance and the undertaking is personal to the insured. The policy is not an insurance of the specific thing without regard to the ownership but is a specific agreement of indemnity with the person insuring against such loss or damage as he may sustain. Newark Fire Ins. Co. v. Turk, 6 F. (2d) 533, 43 A. L. R. 496.

In the instant case it was stipulated that the -legal title to the land and the dwelling thereon at the time the insurance policy was issued and at the time the dwelling was destroyed by fire was in appellee’s husbands’ trustee in bankruptcy. She was not living on the land or in the dwelling that was destroyed and had no homestead estate therein. Its condition, its state of repair, its continuance or destruction were matters over which she had no control.

Appellee further insists that appellant by its acts and conduct acknowledged that the appellee had an insurable interest in this property and having accepted the premium from appellee, it is now estopped from denying its liability to pay. An insurable interest at the time of the issuance of a policy of insurance and at the time of the loss are essential to the validity of an insurance policy, 14 B. C. L. 905, 906, and the courts hold that where the insured has no insurable interest, a policy issued to such a person is void as against public policy and where a policy is void, neither a waiver nor estoppel can be invoked. Agricultural Ins. Co. v. Montague, 38 Mich. 548.

In the instant case the officers of appellant had no lawful right to pay out the funds of their mutual company in satisfaction of a claim for a loss to a person who had no insurable interest in the property destroyed and the trial court erroneously rendered judgment in favor of appellee. The judgment of the circuit court of Winnebago county is reversed.

Judgment reversed.