text:
    Mae Harrison, Appellee, v. United States Fidelity & Guaranty Company, Appellant.
    Gen. No. 33,584.

      Opinion filed December 31, 1929.
    Eugene P. Kealy and Murphy O. Tate, for appellant.
    Alfred Roy Hulbert and Edwin C. Podewell, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

By this appeal the defendant insurance company seeks to reverse a judgment for $10,333.33, rendered against it after verdict on February 16, 1929. Plaintiff’s action, commenced July 31, 1928, is in assumpsit and is based upon defendant’s policy of automobile liability insurance issued to William A. Radtke on March 11, 1927, for the term of one year.

In plaintiffs’ declaration (one special count) the policy is set out in full, wherein it is stated that defendant company insures said Radtke, called the assured,

“Against liability for loss and/or expense, arising or resulting from claims upon the Assured for damages in consequence of an accident occurring within the limits of the United States and Canada during the term of this policy, by reason of the ownership, maintenance or use . . . of the automobile . . . described herein resulting in:

“(A) Bodily injuries . . . , suffered by any person or persons, excepting:” (Here follow certain exceptions not pertinent to the present issues.)

The policy is limited in its coverage to a loss arising in the use of a “Buick sedan, No. 1,651,812,” and, as originally written, contained a provision limiting the amount of recovery by any one person in any one accident to $5,000, but prior to the accident hereinafter mentioned this amount was increased by indorsement to $10,000. In the policy the defendant further agrees:

“(1) To depend in the name and on behalf of the Assured any suit brought against the Assured to enforce a claim, whether groundless or not, on account of damages suffered or alleged to be suffered under the circumstances hereinbefore described;

“(2) To pay the expenses incurred in defending any suit described in the preceding paragraph, also the interest on any judgment within the limits of the insurance hereby granted, and any costs taxed against the Assured on account thereof;

“ (4) To extend the inshrance provided by this policy so as to be available, in the same manner and under the same conditions as it is available to the named Assured, to any person or persons while riding in or legally operating any of the automobiles covered hereunder; . . .

“ (5) The insolvency or bankruptcy of the Assured hereunder shall not release the Company from the payment of damages for injuries sustained or loss occasioned during the life of this policy, and in case execution against the Assured is returned unsatisfied because of such insolvency or bankruptcy in an action brought by the injured, . . . then an action may be maintained by the injured person . against the Company under the terms of the policy for the amount of the judgment in said action, not exceeding the amount of the policy.”

Among the stated conditions of the policy are the following sections in “Paragraph B”:

“ (1) Immediate written notice of any accident with the fullest information obtainable at the time must be forwarded to the Home Office of the Company or to its authorized representative. If a claim is made on account of such accident, the Assured shall give like notice thereof, and . . .

“ (4) The Assured shall not voluntarily assume any liability; nor interfere in any negotiations or legal proceedings conducted by the Company on account of any claim; nor, except at Assured’s own cost, settle any claim; nor .' . .

“ (5) Whenever requested by the Company, the Assured shall aid in securing information, evidence and the attendance of witnesses in effecting settlements and in defending suits hereinbefore referred to. The Assured shall at all times render to the Company all reasonable co-operation and assistance.”

In the declaration plaintiff alleged the execution and delivery of the policy to Radtke in Chicago on its date; that on August 14,1927, Radtke was driving “the said automobile mentioned in the policy” from Chicago to Lake Geneva, Wisconsin; that plaintiff and her sister, Aimee Harrison, were riding therein upon his invitation; that he negligently ran the automobile off the road and into a ditch, and as a result plaintiff and her sister each sustained bodily injuries; that thereafter, on January 10, 1928, plaintiff and her sister brought separate suits against Eadtke to recover damages; that thereafter, during May, 1928, plaintiff’s suit was tried by a court and jury; that defendant by its attorneys defended the same in Eadtke’s behalf; that on May 23, 1928, the jury returned a verdict finding him guilty and assessing plaintiff’s damages at $16,000; that on May 26, 1928, judgment on the verdict was entered against him; that neither defendant nor Eadtke perfected an appeal from the judgment or sued out a writ of error; that the judgment still remains in full force and effect; that on June 26, 1928, execution thereon was issued and subsequently returned unsatisfied; and that Eadtke was and is insolvent. Plaintiff in the declaration directed particular attention to paragraph 5 of the policy, and alleged that, because of the provisions of the policy and the foregoing facts, defendant was indebted to her in the sum of $10,000, together with legal interest from May 26, 1928.

Defendant filed a plea of the general issue; also an amended special plea; in which are set forth sections 1, 4 and 5 of paragraph B of the policy. It is alleged that Eadtke, prior to the commencement of the suit against him, fraudulently and collusively entered into an agreement with plaintiff to defraud defendant “of the face value of the policy”; that to this end he delivered to it a false written report or statement of the accident, denying that it occurred because of his negligence and “laying the blame on a mythical third party”; that when testifying on the trial of plaintiff’s suit against him (defended by defendant’s attorneys) he, to defendant’s surprise, voluntarily assumed liability for the accident, and stated that he had fraudulently, entered into an agreement with plaintiff to defraud defendant, that while the suit was pending he was ‘ ‘keeping company” with plaintiff and her sister, that he had given a statement as to the accident to plaintiff’s attorney admitting responsibility, and that he had cooperated with plaintiff “in arranging the details of the friendly suit”; that, wholly regardless of his obligations to defendant, he had neglected to properly cooperate with and render assistance to defendant in the defense of the suit; that thereby he had “breached” the policy contract; that, because of these facts and because plaintiff’s right to sue upon the policy “is merely under the subrogation provisions of the policy, ’ ’ she has no greater rights under the policy than Radtke; and that, hence, she is not entitled to recover any sum from defendant.

To the special plea plaintiff filed a replication in which she denied all charges of fraud and collusion, or that Radtke had at any time voluntarily assumed liability for the accident, or that he had not co-operated with defendant in defense of the suit; denied that Radtke had breached any of the conditions of the policy; and alleged that plaintiff’s right to sue defendant did not arise merely by subrogation, but that she was in effect an “unnamed beneficiary” of the policy.

Upon the trial plaintiff was represented by attorney Alfred Roy Hulbert and defendant by Murphy O. Tate, who on the former trial as one of defendant’s attorneys had conducted Radtke’s defense. Plaintiff introduced in evidence the policy and a certified transcript of the record of the former suit, in which were contained the pleadings, the verdict, the judgment, and the return of the execution unsatisfied. It was stipulated that defendant had received from Radtke timely notice of the happening of the accident. Plaintiff then rested.

Defendant then introduced the original report of the accident, signed by Radtke and dated August 16, 1927. He therein stated that it happened on “Aug. 14, 1927 at 3:15 o’clock a. m.” on “Higgins Road, at Buttermilk Corner”; that Mae Harrison, Aimee Harrison and Walter Martin were passengers in the car and were all injured; that Mae Harrison was taken to the “Palatine Hospital” and there was attended by Dr. Campbell of that hospital; and that “I was driving west on Higgins Road. From north on cross road there suddenly entered an automobile on Higgins Road in my path. I avoided him by quickly turning left; sudden turn threw my car out of balance and it tipped over. ’ ’

Defendant also introduced Radtke’s more detailed statement, dated August 22, 1927. It was stipulated that it was prepared in the office of Eugene P. Kealy, counsel for defendant in Chicago. Radtke therein stated in part:

“On August 14th, between 3 and 3:30 a. m., I was driving . . . west on Higgins road. . . . ,We were on our way to Lake Geneva, Wisconsin. The weather was clear and the concrete highway dry. I drove the car on an average of 25 miles an hour. . . . When I reached a point about 150 feet east of a cross road, I could see the lights of a car coming from the north. This southbound auto was about 50 feet north of Higgins Road when I first saw it; it did not stop or slow down, but turned to the east on Higgins Road; to avoid it running into my car, I turned to my left and my car went off the road and into the ditch on the south side of the road and about 15 feet west of the cross road. . . . Some people appeared in a car and took Martin and the two girls to Palatine Hospital. ... I went to the hospital about 9 a. m. . . . Dr. Campbell told me that Aimee Harrison and Martin were only slightly injured, but that Mae Harrison would have to stay, as she had received a severe injury to her spine. . . .

In summing up, all I can say is, that the car, southbound on the crossroad, in failing to stop or slow down at Higgins Road, caused me to turn into the ditch.”

Defendant, over objection, also introduced a letter addressed to and received by Radtke, signed by defendant, per Kealy as counsel, and dated May 24, 1928 (the next day after the jury had returned the verdict in the former suit.) Therein he was notified that, because of his claimed “fraud and violation of the terms of the policy,” defendant “renounces any and all liability” thereunder, by reason of the accident, wherein plaintiff and her sister were injured “while they were riding as guests in your automobile, insured under said policy,” and that the company had instructed Attorney Tate to take no further action in his defense, and that, should Tate do "so, it would not be responsible for attorney’s fees.'

Defendant also introduced (and the same was read to the jury) Badtke’s testimony given upon the former trial, as contained in a certain transcript, wherein it appears that he then testified on direct examination by Tate in part as follows:

“I am 35 years of age and unmarried; I had known Mae Harrison and her sister for about 3 years. I had been ‘keeping company’ with Aimee for some time prior to the accident. I saw her at least once a week. Since the accident I have seen her 6 or 7 times, generally at her home, and I have talked with her and Mae. about the suits they had brought against me. They knew I had an insurance policy. They told me ‘not to worry about anything, that the insurance company was going to take care of it all. ’ Later Hulbert telephoned me to call upon him, and I did so. He ‘asked me things concerning the accident, which I told him about.’ I saw him again. He had written out a statement, based on what I had told him, and later he mailed a copy to me, one to Martin and one to each of the girls. Later, I met him at the girls ’ home. The statement was read and he wanted me to sign it, but I refused. (This statement shown witness.) ‘There is one or two paragraphs in here which isn’t true, first, as to the speed, 40 to 45 miles an hour, and, second, this car coming out of the side road; it was just a frame; I was the one who suggested it in order to protect the girls. ’ Hulbert told me to read this statement over carefully and that ‘when the time came to testify the four of us would testify like in this statement.’ The ‘game ivas’ that ‘I, Martin and the girls were all going to testify to this story in order to hook the insurance company.’ . . . I saw Hulbert three different times. I did not then know that in the declarations which he had filed in the suits brought by the girls against me that I was there charged with wilful and wanton negligence and that I could be sent to jail if verdicts were returned against me and I did not pay. If I had known this I would not have been so anxious to help the girls.”

Radtke’s version of the accident, as testified on the former trial, is in part:

“After we reached Higgins, road we stopped for about half an hour and . . . then started west again on that road. I saw a car coming with bright lights that passed me. I kept following the road ahead until the turn came. We went into the ditch. The lights of that other car blinded me as it approached. It was just after that other car had passed, say about 100 feet, that we went into the ditch. If the road had been straight at the time I would have made it, but it was a kind of a dangerous curve.”

.He further testified on direct examination:

“The first discussion I had with the girls about bringing a suit so as to make the insurance company ‘hold the bag’ was in the hospital. I paid the hospital fees for Mae Harrison. As to why I have made a ‘clean breast’ of this affair, it is because the girls ‘double-crossed me,’ and ‘my conscience bothered me’ so much that I couldn’t sleep last night. I tried to get you (Tate) at your home then I came down to your office at 8 o ’clock this morning and I told you the absolute facts. ' I did this of my own free will. I realize the shape I am now in on this.”

On said former trial Radtke was cross-examined by plaintiff’s attorney, Hulbert, as to the verbal statement given to Hulbert. It appears that on said trial this statement, as written out by Hulbert, was introduced in evidence. It is in substantial accord with Badtke’s detailed statement of August 22, given to defendant, except as to the speed at which Badtke’s car was moving, and except that, in the statement to Hulbert, Badtke stated that just before the accident he “saw a car coming east towards me with its bright lights burning, ancl, while I was passing him, I saw another car coming south on a country road about 300 feet awáy,” and except that, in the statement to Hulbert, Badtke stated that just prior to the accident all three passengers in his car had complained of the speed at which he was driving and had requested him to drive slower. Badtke further testified, on cross-examination on the former trial, that the story (as contained in both statements) about a car coming from a cross road “was not true”; that he “had no hesitancy about telling Hulbert something that was not true”; that the reason he did not tell Hulbert the whole truth about the accident was “due to the fact of the four parties getting together and arranging this”; that he made the suggestion to the girls about “framing” the insurance company at the hospital, about 2 or 3 weeks after the accident; but that “the girls never made any suggestion that he ‘frame’ a story.” At the conclusion of his testimony Badtke asked to be allowed to correct a statement made, and he stated: “You asked me whether I ‘framed’ the insurance company, in order for the girls to get the money? I did not.”

Neither Badtke nor any other parties were called as defendant’s witnesses on the trial of the present case.

It appearing, however, that.Kealy, counsel for-defendant, was actually engaged in court in another trial and could not be present, plaintiff’s attorney agreed to allow Tate to make a statement as to such facts (not conclusions) as Kealy would if present testify to, plaintiff’s attorney stating that he would not agree to be bound by the statement, etc. Thereupon Tate made a statement, containing some conclusions and incompetent matter (objected to by plaintiff’s attorney), in substance as follows:

That Kealy has been counsel for defendant in Chicago for more than 10 years; that he passes upon all claims in personal injury cases; that the only way he has of estimating “the value of a case” and deciding what is best to do from the company’s financial standpoint is from the written statements as to accidents, signed by assureds; that such value is determined by a number of factors, among which are, the extent of the injuries, the probable financial loss a plaintiff has sustained, whether or not the accident occurred because of the assured’s negligence, and whether or not it is a “nonliability” case; that in the present case, after he had read the statements or reports, given by Radtke, he “decided” that the accident was “unavoidable,” that Radtke was not guilty of any negligence, and that there was no liability for the accident either on the part of the company or Radtke; that Kealy, relying* upon Radtke’s statements and making no separate investigations as to the accident, instructed Tate, one of defendant’s trial attorneys, to defend said suit, which the latter did; and that neither he nor Tate knew that the accident happened in any different way until, during said trial, Radtke’s testimony was given.

In rebuttal, plaintiff testified in her own behalf, and Aimee Harrison for her. Plaintiff’s testimony was in substance as follows:

That it was three weeks or more after the accident that she first saw Radtke at the hospital, when he came to inquire as to her condition; that he then told her he had given a statement to the company in which he had stated that there was a car coming from a side road, and that she replied she “didn’t see any such car”; that she next saw him at the hospital in October, 1927, when in company with Martin he again called to inquire as to her condition, and that at this time nothing was said as to the accident; that she left the hospital in December and did not see him again until some time in February, 1928, when he called at her home and there was some conversation in the presence of her sister, about the suits that they had brought against him; that he called again at her home in March, 1928, and again in April, 1928; that on the latter occasion her attorney (Hulbert) and her sister were present and there was further conversation about the suits, but that no written statement as to the accident was then or ever shown to her; that neither at this meeting" nor at any other interview had with him, did he ever say to her that he had given a false statement to the company concerning a car on a cross road for the purpose of “framing” the company and to “protect” her; that she never “framed” anything; that prior to the trial in May, 1928, she never saw him or her attorney except at her home, because of her condition; that since that trial she has not seen him; that she does not recall any conversation in her home, at any time during the pendency of said suit and after she had left the hospital, when Badtke and Hulbert were present, at which the details of the accident were discussed; and that “no such thing ever occurred.”

Aimee Harrison’s testimony corroborated that of plaintiff in essential particulars. She stated that at no meeting had at their home, when Badtke or Hulbert or both were present, was any discussion had as to “framing” the company or giving to it a false statement, and that Badtke never said to her and plaintiff, or they to him, anything regarding “framing” the company so that they might be “protected.”

The main contention of defendant’s counsel is that the trial court erred in not granting their motion, made at the close of all the evidence, to direct a verdict for defendant. Counsel argue in substance that, by virtue of the provisions of paragraph 5 of the policy, plaintiff has no greater rights than Badtke; that one of the conditions under which the policy was issued (section 5 of paragraph B) was that, in the event of a suit being brought by an injured person against him and defended by the company, he should at all times “render all reasonable co-operation and assistance”; that Badtke did not do this, but on the contrary fraudulently made false statements to it concerning the accident and deceived it; that thereby judgment was rendered against him in favor of plaintiff; that, in addition, after the accident and before the trial at which the judgment against Badtke was rendered, he fraudulently colluded with plaintiff to fasten ultimate liability for plaintiff’s injuries upon defendant, whereas as a matter of fact the accident was unavoidable and not the result of his negligence; and that, hence, plaintiff cannot recover any sum from defendant in the present action. In support of their contention and arguments counsel cite several cases decided by New York and other courts.

It appears that in New York (section 109 of that State’s Insurance Law), and in many other States, there are statutes requiring that policies of liability insurance shall contain a clause substantially the same as paragraph 5 of the present policy. In 2 Berry on Automobiles, 6th Ed., 1929, sec. 2186, p. 1769, it is said that it has been held in.New York that “under this clause, the insurance company issuing a policy has the right to maintain any defense against an injured person that it could properly have urged against the insured, had he brought an action on the policy, but that the court will scrutinize with great care any defense based upon the nonobservance on the part of the insured of what may be called conditions subsequent, such as the plea of nonco-operation by insured with the company in the defense of the action.” In Weiss v. New Jersey Fidelity & Plate Glass Ins. Co., 228 N. Y. S. 314, 319, it is said:

“In an action of this character it is established that the insurance company may assert any defense against the injured person which it might have asserted in an action against it by the insured. . . . It is equally well established that the obligation of good faith in carrying out what is written in a contract is a contractual obligation of universal force, which underlies all written agreements.”

In Roth v. National Automobile Mut. Cas. Co., 195 N. Y. S. 865, the court, after stating certain claimed reasons actuating the New York legislature in amending the insurance law so as to require all policies to have a clause substantially the same as paragraph 5 of the present policy, said (p. 867):

“If such were the reasons which moved the Legislature to enact section 109 of the Insurance Law, and if insurance companies heretofore indulged in the practice of colluding with policyholders to put them through bankruptcy in consideration of escaping liability under their policies, it would not be unreasonable to assume that they might not hesitate to escape liability to an injured person under the act by colluding with the assured after an accident by procuring him to do some act forbidden by the policy or to omit to do some act which he was obliged to do. It would thus be incumbent upon the court to scrutinize with great care any defense in a case like this, which is based upon the nonobservance on the part of the assured of what may be called conditions subsequent, such as the plea of nonco-operation here urged.”

And the court, after considering the words “under the terms of the policy” (contained in clause 5 of the present policy) and the contentions of the company relative thereto, further said (p. 866):

“It seems to us that the Legislature did not intend to deprive the insurance company of any defenses which it could have properly urged against the assured under the provisions of the policy, had he brought an action thereon.”

It appears in the Both case that the plaintiff had recovered judgment against one Friedman for personal injuries received in an automobile accident, occasioned by the negligence of Friedman’s chauffeur; that execution on the judgment had been returned unsatisfied; that Friedman held a liability policy issued by the company; that the plaintiff sued the company to recover the amount of said judgment; that the defense was that Friedman had breached the policy in that he had failed to co-operate with the company in the defending of the former action by signing and delivering conflicting written statements, — one to defendant and one to the attorneys for the plaintiff; that there was no sufficient proof of collusion between the plaintiff and Friedman; that on the trial without a jury the court found that said defense had not been established and entered a judgment against the company; and that on appeal the judgment was affirmed by the Appellate division by a divided court. After referring to the fact (as in the present case) that it is not claimed that the assured refused or neglected to aid the company as to any request made of him, it is further stated in the majority opinion (p. 868):

“It is clear that the assured falsified, either in telling the company that his chauffeur had been notified not to take out the car, excepting with his express permission, or in stating that he had given the chauffeur permission to use the car, unless he was tricked into signing one or the other of the statements. It does not appear which of the statements signed by Friedman was true, nor was there any evidence showing under what circumstances either of these statements was prepared and signed. . . . We can find no reason for disturbing the conclusion which the court reached upon the facts.”

And in a specially concurring opinion by one of the judges it is said (p. 868):

“I do not think that the failure of the insured to co-operate after the accident, not induced by plaintiff, constitutes a defense. To hold otherwise puts the plaintiff at the mercy of the owner, who is presumptively hostile. This was not intended by the statute.”

In Hermanee v. Globe Indemnity Co., 223 N. Y. S. 93, two actions (tried together) were brought by plaintiffs, husband and wife, against the company, and each recovered a judgment against it for the respective amounts of judgments previously recovered against one Seides, the assured. The wife had been injured in a collision (caused by Seides ’ negligence) of his automobile and a bus, in which she was a passenger. The company had defended Seides in the former suits. The judgments against the company were reversed by the reviewing court, and new trials granted, because the trial court had erred in submitting to the jury a question of waiver. One of the judges, however, dissented upon the ground (p. 98) that “plaintiff had some beneficial interest in the policy under section 109 of the Insurance Law . . . and defendant, having made an election to defend the action, cannot now, as to the plaintiff, assert nonliability under the policy.”

In Coleman v. New Amsterdam Casualty Co., 213 N. Y. S. 522, plaintiff had a verdict against the . company, which on its motion the trial court set aside and dismissed the complaint. It appears that the company had insured Endicott Drug Store, Inc., against loss from liability because of error in filling a prescription; that plaintiff had previously recovered a judgment against the drug company and execution had been returned unsatisfied, etc.; that the company’s defense was the assured’s failure to co-operate, etc.; that the jury, in addition to the general verdict, had answered in plaintiff’s favor the special question whether there was a “material breach” by the assured of its covenant to co-operate with the company in defending plaintiff’s action; that, when plaintiff began his action against the assured, a representative of the company asked an officer of the assured “what there was to this claim of negligence,” and whether or not the prescription had properly been filled; that the officer replied, “I won’t tell you anything about it unless I am going to be defended”; that the officer, although admitting that a mistake had occurred, refused to say what the mistake was or to verify an answer; that after futile attempts to secure further information the company disclaimed liability; and that in the original suit against assured there was a judgment by default. It is manifest that these facts are materially different from those in the present case. It does not here appear that Eadtke refused to co-operate with or assist defendant, or refused compliance with any request of defendant to that end. The trial court in its opinion in the Coleman case said (p. 523):

“What constitutes co-operation is usually a question of fact. (Citing numerous decisions in New York and elsewhere.) It may be excused as a matter of law, if improperly demanded. Thus, a refusal to sign an answer, if no defense in fact existed, cannot be a failure to co-operate. (Citing Collins’ Ex’rs. v. Standard Accident Ins. Co., 170 Ky. 27, 31.) But, while the meaning of ‘co-operation’ cannot be expanded to include assistance in a sham defense, it cannot be contracted to exclude a fair statement of the facts of the case. The insurer has a right as a matter of law to know from the assured the facts upon which the injured asserts his claim, in order to determine for itself whether it should contest or attempt to settle the claim.”

The Coleman case finally reached the New York Court of Appeals, and there the action of the trial court in dismissing the plaintiff’s complaint was affirmed (247 N. Y. 271.) In its opinion the Court of Appeals said (p. 275):

“The argument is made that the effect of section 109 of the Insurance Law is to create an original obligation in favor of the injured claimant for the amount of any judgment recovered' against the holder of.the policy without reference to any breach of condition as between the insurer and assured. We see no basis for such a ruling. . . . By express provision of the statute, the action is to be ‘maintained by the injured person . . . against such corporation under the terms of the policy.’ If the terms could be disregarded, insurers would be helpless to defend themselves against chicanery or covin. They might then be held though there had been neither notice of the claim nor opportunity reasonably prompt to investigate the merits. . . . The plaintiff argues that a bankrupt holder of a policy colluding with the insurer could refuse to co-operate, and thus enable the insurer to cheat the statutory remedy. With equal force, the defendant can argue that a bankrupt assured could collude with a claimant to fasten upon the insurer a fictitious -liability. . . . Assured and claimant must abide by the conditions of the contract.”

In Metropolitan Casualty Ins. Co. v. Albritton, 214 Ky. 16, where the facts are similar to those in the present case and the provisions and conditions of the policy are almost identical, the holdings and decision of the Kentucky Court of Appeals are contrary to those of the New York court in the Coleman case. It appears that the plaintiffs, Albrittons, had recovered separate judgments against the assured, Mimms, for personal injuries and for property damage, received in an automobile accident, and, after executions had been returned unsatisfied, they separately sued the company and recovered judgments against it, which the reviewing court affirmed. It further appears that to the plaintiffs’ declarations the company’s answers had set forth certain facts tending to show that the assured had not “co-operated” with the company; that prior to the trials the court had sustained plaintiffs ’ demurrers to these portions of the answers; and that these rulings were assigned as the company’s first ground for reversal. In holding that no error had been committed in sustaining the demurrers, the court said (p. 19):

“The first one proceeds upon the theory that neither plaintiff has any rights under the policy except that of subrogation to those of Mimms, the assured, under it, and which we are convinced is altogether erroneous. The excerpt above, taken from the policy conferring a right of action upon the injured person against the company (defendant) in case of insolvency or bankruptcy of assured, was' a stipulation, for the exclusive benefit of such injured person, and it thereby created under the policy a dual obligation on the company in the event of the .conditions named; one to the damaged person because of the accident growing out of either personal injuries or property lost, and the other to the assured; and those obligations when- they arose under the policy were totally independent of each other. Neither the assured by anything he might do could defeat plaintiff’s cause of action under that clause > >

In connection with this Albritton case, the holdings and decision in Patterson v. Adan, 119 Minn. 308, may be referred to, in which case, however, the policy sued upon did not contain any clause similar to paragraph 5 of the present policy, and the proceedings against the company were by garnishment on the judgment obtained against the assured. After an exhaustive discussion it was held that the trial court had erred in discharging the company as garnishee, saying (p. 314):

“We therefore hold that, in a policy such as this, where the company has come into the litigation and assumed exclusive control thereof under its contract, it recognises a liability, if it fails to defend successfully, to pay the assured the amount of the judgment it so permits to be established, not exceeding the sum stipulated in the policy, and also that, as to the plaintiff, it should be considered that such judgment is a debt due the assured from the company, and not dependent on any contingency.”

In Solomon v. Preferred Acc. Ins. Co., 229 N. Y. S. 257, plaintiff, while riding as a passenger in an automobile of one Ohrbach received injuries and in a prior suit she had recovered a judgment against him and, an execution having been returned unsatisfied, she sued the company, which had issued a policy (containing provisions and conditions similar to the policy in question) to Ohrbach. Before the trial of the prior suit he had given to the company a written statement of the occurrence, which exonerated him from liability and placed the blame for the accident upon the driver of another car. The company defended the prior suit. One of the defenses in the suit against it (tried by the court without a jury) was that Ohrbach had failed to “co-operate” with it, in that upon the trial of the prior suit he had testified to a state of facts which showed that his negligence was the proximate cause of plaintiff’s injuries. There was a finding and judgment against defendant and on the appeal the judgment was reversed and a new trial ordered. The main ground urged in the Appellate Court for’ a reversal was that, after Ohrbach had given his testimony tending to show negligence on his part, defendant, to. establish its said defense, was not allowed by the trial court to introduce Ohrbach’s said detailed statement given to it. The objection, that said statement was “not binding on this plaintiff,” was sustained. This ruling was held to be erroneous but the court in the opinion further said (p. 260):

“We express no opinion on the weight, and still less on the conclusiveness, of any of the evidence as bearing upon the issues presented. Since there is to be a new trial, . . . we deem it appropriate to point out that, when Ohrbach’s statement to the defendant has been put in evidence, it is open to the plaintiff to introduce testimony tending- to explain it, or the circumstances under which it was given, and, generally, to disprove its weight as establishing Tack of co-operation’ on the part of the assured. Similarly it is competent for plaintiff to prove knowledge on the part of the defendant of the nature or substance of Ohrbach’s testimony before it undertook his defense as against the previous suit of the present plaintiff.”

The Solomon case is cited by defendant’s counsel as strongly supporting their contention, that the trial court in the present case should have directed a verdict in defendant’s favor. We do not so regard the case, but think it an authority sustaining the contrary contention of plaintiff’s counsel. Furthermore, Badtke’s statements in both reports to defendant did not, on their face, exonerate him from liability as claimed, and we do not think that either defendant, or its counsel (with his ten years of experience), could have been deceived into believing that the accident was unavoidable and not due to any negligence on Badtke’s part., Both statements, clearly in our opinion, disclose a decided lack of care on his part. From the statement of August 22, it is apparent that he was driving his car at an excessive rate of speed and did not have it under proper control. Moreover, if, as he says in the statement, he saw a car approaching Higgins Boad and about 50 feet north of it (and to his right) when he was at a much greater distance from the intersection, it was his duty to slow down and allow said other car to pass in front of him and he was guilty of negligence in not so doing. On the trial of plaintiff’s suit against him he testified that his statement, made in said report to defendant of August 22, about a car coming from the north on a crossroad, was untrue. But otherwise his testimony given on the stand in said suit did not differ materially from his statement of the accident as given to defendant. In both said testimony and said statement it appears that he negligently allowed his car to get off of a dry concrete highway and into a ditch on the southerly side of the highway and that he was at the time traveling at an excessive rate of speed and did not have his car under proper control.

In the case of Guerin v. Indemnity Ins. Co., 107 Conn. 649, 142 Atl. 268, decided by the Supreme Court of Connecticut, it appears that the facts and the provisions of the policy are similar to those in the present case. The plaintiff had recovered a judgment against Le Clerc (assured), execution had been returned unsatisfied, and the plaintiff sued the company, whose defense was lack of co-operation on the part of assured in the defense of the former suit, and especially the claimed making of an untruthful report of the accident, which was contrary to his subsequent testimony, virtually admitting that plaintiff’s injuries were caused by his negligence. Plaintiff obtained a judgment in the suit against the company, which was affirmed. The reviewing court said in its opinion (p. 270):

“It remains to be considered whether there was such a breach of this condition of the policy by the assured. The duty resting upon the assured under this clause of the policy was to render to the defendant co-operation and assistance, presumably assistance in establishing any defense which it might have to an action upon the policy. He signed the statement, Exhibit 1, giving a version of the facts which tended to exonerate him from blame for the accident. It could hardly be said that this constituted any failure in co-operation with the defendant, but rather the reverse. Later, upon the trial, he gave another version of the facts, which was substantially different from and conflicted with his previous statement, and which was practically a confession that the accident was the result of his negligence. It is not alleged or claimed that Le Clerc testified falsely upon the trial. ... It cannot be said, therefore, that there was a failure of co-operation and assistance by reason of truthful testimony given by Le Clerc upon the trial. A failure to report the accident or to give notice of the suit or to give any information regarding the accident might constitute a breach of this covenant. . . . Upon this record it cannot be said that the court erred in reaching the conclusion that there was no breach of this condition of the policy.”

In Francis v. London Guar. & Acc. Co., 100 Vt. 425, it was held-that, in an action' against an automobile owner’s insurer for the amount of a judgment recovered against the insured, defendant has the burden of establishing its affirmative defense that insured failed to co-operate with defendant in defending the original suit, in accordance with the requirements of the policy.

In Conroy v. Commercial Casualty Ins. Co., 292 Pa. 219, it was decided that, where the policy provided for co-operation on the part of the insured with the insurer, the latter, in order to relieve itself from liability, must show a breach of contract that is something more than a mere technical departure from the letter of the policy, and that it really suffered a substantial prejudice and injury by the conduct of the insured. The question of collusion between the insured and the person injured also was discussed, the court stating in its opinion (p. 226):

“Where there is a finding that deliberate misstatements were made to the prejudice of the surety in collusion with the one injured, there is such fraud as will prevent judgment. (Citing Bassi v. Bassi, 165 Minn. 100.) A lack of good faith must be proved, . . . and it is not to be inferred merely from the close relations of the parties, as, for example, father and daughter-in-law. (Citing U. S. Casualty Co. v. Drew, 5 Fed. Rep., 2nd, 498.) ”

In Maryland Casualty Co. v. Lamarre (N. H.), 140 Atl. 174, decided by the Supreme Court of New Hampshire, it was held to be a question of fact whether the insured in an automobile liability policy acted honestly and in good faith in the promotion of justice, in encouraging the prosecution of his wife’s suit against him for injuries which she had sustained, testifying therein that he was drunk, admitting his liability, describing his wife’s sufferings and disability, and expressing the hope that she would recover a substantial verdict.

We have reviewed the above decisions, conflicting on some points, of the courts of other jurisdictions, inasmuch as opposing counsel in their respective briefs state that they have been unable to find any adjudicated case in either the Supreme or Appellate Courts of Illinois directly bearing upon defendant’s counsels’ main contention and arguments. Our additional search fpr such a case has not been rewarded.

In view of the general trend of these decisions and holdings, the terms and provisions of the policy, the pleadings in the present case, the conflicting testimony on the question of collusion, and of all the facts and circumstances in evidence, we are of the opinion that the trial court did not err in refusing to direct a verdict in defendant’s favor. Whether Radtke rendered all reasonable co-operation and assistance to defendant, whether he intentionally made false and' fraudulent statements to defendant as to the accident shortly thereafter, whether defendant relied upon the same or it or its counsel were deceived thereby, and whether Radtke after the accident and before the trial of the suit against him fraudulently colluded with plaintiff to fasten ultimate liability for her injuries upon defendant, were all questionsof fact for the jury and not for the court to determine. And it certainly cannot be said that the jury’s verdict is manifestly against the weight of the evidence. And we think that the judgment entered upon the verdict is amply sustained by the law, according to the general current of authority in jurisdictions outside of Illinois, and should be affirmed.

Defendant’s counsel also complain of the instructions to the jury. .Thirteen were given — three offered by plaintiff and ten by defendant. Three others offered by defendant were refused. It is contended that the giving of instruction Ho. 2, offered by plaintiff, was error. Considering the instruction in its entirety and in connection with all other .given instructions, we cannot agree with the contention. It is urged in the argument in connection with this instruction that plaintiff did not prove that the particular car mentioned in the policy was the car involved in the accident. Plaintiff alleged in her declaration that it was the same car; defendant did not deny the fact in its special plea and its plea of the general issue did not put in issue the fact; furthermore, in defendant’s letter to Radtke of May 24,1928, introduced by defendant, there is a direct admission of the fact. And we do not think that the court committed error in refusing to give the three refused instructions offered by defendant, especially when all given instructions are considered. We are of the opinion that the jury were fairly instructed. .

The judgment appealed from is affirmed.

Affirmed.

Barnes, P. J., and Scanlan, J., concur.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    The People of the State of Illinois ex rel. John S. Rusch, Defendant in Error, v. Edward Johnson, Plaintiff in Error.
    Gen. No. 33,503.

      Opinion filed December 31, 1929.
    Nash & Ahern, for plaintiff in error.
    John A. Swanson, State’s Attorney, for defendant in error; Edward E. Wilson and John Holman, Assistant State’s Attorneys, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

Plaintiff in error, Edward Johnson, was a judge of election and acted as such in the 23d precinct of the 20th ward of Chicago, Illinois, at a general primary election held April 10, 1928, and in a proceeding in the county court of Cook county, based on section 13 of article II of the City Election Law, Cahill’s St. ch. 46, 267, p. 1196,1929 Ed., he was adjudged guilty of contempt of that court and ordered committed to the county jail for a period of one year. He prosecutes this writ of error.

A petition was filed in the county court December 20, 1928, by John S. Eusch, chief clerk of the board of election commissioners of the City of Chicago, against plaintiff in error. It alleged misbehavior on the part of plaintiff in error in his office as judge of election at the said polling place, and averred that such misbehavior constituted contempt of court, and it prayed a rule on him to show cause why he should not be held in contempt of court. A rule was entered, and thereafter a sworn answer was filed by the plaintiff in error. It contained much irrelevant matter, which was properly stricken by the court on motion of the defendant in error. The relevant part denied the charges contained in the petition.

The plaintiff in error contends that “there is no evidence to sustain the respective charges of contemptuous acts set forth in the petition.” The defendant in error rightfully insists that the plaintiff in error is not in a position to raise the instant contention. The defendant in error introduced in evidence the poll books, registers and Republican and Democratic tally sheets, and all these have been omitted from the bill of exceptions. Defendant in error also introduced Exhibit 9, which was a tabulation, by the witness Lee, of names that appeared on the poll books that were not on either of the registers, and this exhibit does not appear in the bill of exceptions. It is clear from evidence in the bill of exceptions that the omitted exhibits tended strongly to sustain the charges against the plaintiff in error, and under the well known rule stated in People v. Niehoff, 266 Ill. 103, 105, we must presume that these exhibits tended to sustain the charges. We might add, however, that in the present state, of the bill of exceptions we find sufficient evidence to show that the plaintiff in error was engaged in a conspiracy to place illegal ballots in the box and that as an election official he aided and abetted the commission of overt acts in furtherance of the conspiracy. The plaintiff in error has apparently argued the instant contention, and one other, upon the assumption that common-law rules govern the present proceedings. “That the legislature intended to abolish the common-law rule in this class of contempts can hardly be doubted from the language of the statute which expressly provides for a trial ‘in open court on oral testimony in a summary manner without formal pleadings. ’ ” (People v. Sylvester, 242 Ill. App. 565, 571-2, and cases therein cited.)

The plaintiff in error contends that “the People, acting by its representative, the State’s Attorney, or the Special Assistant’s Attorney-General entered into an agreement with Johnson to confer immunity upon him in consideration of his testimony. Johnson carried out his part of that contract and testified before Judge O’Connor. The State is now estopped from prosecuting Johnson, either under the Criminal Code or under the contempt provision of the election laws.” It appears that in the case of People v. Reed, tried in the criminal court of Cook county before Judge O’Connor in October, 1928, wherein the defendants were charged with conspiracy to steal, by divers means, the general primary election for certain candidates, the People called plaintiff in error as a witness. In the present proceeding he testified, in effect, that a special assistant attorney general told him that if he testified for the State in the case of People v. Reed, nothing would befall him but that if he did not, they would make trouble for him in the county court. Counsel for plaintiff in error, as we understand their argument, insist that when plaintiff in error testified for the State in the aforesaid case he did so under a contract of immunity and that not only the State in criminal cases, but also the judge of the county court in the present proceedings, was bound by the contract. The distinction between a contempt and a criminal offense is clearly pointed out in the case of People v. Panchire, 311 Ill. 622. The instant contempt charge is a purely statutory proceeding. When the plaintiff in error became a judge of election he thereby became an officer of the county court, and the power to punish for contempt an election official for misbehavior in office is vested in the county court by section 13. If the assistant attorney general had promised the plaintiff in error immunity from criminal prosecution for acts committed in the election in question, that fact .would not prevent the county court from hearing and determining the present contempt charges. But even if the plaintiff in error were being prosecuted in a criminal case he would be in no position to interpose a claim of immunity. In the present proceeding he testified that the evidence he gave for the prosecution in the case before Judge O’Connor was false and that he knew it was false at the time that he testified. Before a defendant in a criminal case can interpose a plea of immunity he must show that in the testimony he gave and for which he claims immunity, he made a full and truthful disclosure of the facts. (People v. Bogolowski, 317 Ill. 460, 467.) Plaintiff in érror contends that this rule should not be enforced against him in the present case because the evidence shows that the State “paid him and terrorized him into acting as a false witness in the criminal case.” We shall dispose of this theory of fact in our answer to his next contention.

The plaintiff in error contends that the trial court erred in admitting against him the testimony he gave before Judge O’Connor. He argues, as we understand . it, that the State would be estopped from using his testimony before Judge O’Connor as an admission against him for the reason that the State’s “special detectives and special counsel” procured him to give false testimony before Judge O’Connor, and that the county court, in a proceeding like the one before us, is a special agent in behalf of the State, and is also barred from using the testimony because of the said conduct of the State’s “special detectives and special counsel.” It is a sufficient answer to this contention to say that the proof overwhelmingly shows that the testimony of the plaintiff in error in the present proceeding that he was induced or coerced to give false testimony in the trial before Judge O’Connor, is false. The record in this case discloses a brazen attempt by the plaintiff in error, in support of which he did not hesitate to commit perjury, to defame an assistant attorney general who acted for the prosecution in the case tried before Judge O’Connor. How devoid of merit the present contention is will appear from the followingThe defendant in error introduced in evidence only excerpts from the testimony given by the plaintiff in error before Judge O’Connor, while the plaintiff in error saw fit to introduce the entire testimony given by him on that occasion. Having himself introduced the same evidence, he is in no position to insist upon the instant alleged error. (Bogart v. Brazee, 331 Ill. 160, 181; John Griffiths & Son Co. v. Mann, 255 Ill. App. 618 [Abst.].) .

The plaintiff in error contends that the court erred in admitting the testimony of the witness Lee “as to the result of a tabulation made by him of names appearing on poll books but not on the registers.” As the exhibits to which the testimony of Lee related were in evidence, the trial court could determine, from an inspection of the same, the weight, if any, that should be attached to the testimony of Lee. The present contention is technical, and without merit. (See People v. Sylvester, supra, p. 570, where the court passed upon a similar contention.)

The plaintiff in error next contends that in any event" there was no evidence to sustain the second and third findings of the judgment order and that “as the judgment assessed an aggregate penalty for'three findings ,of overt acts, a failure of evidence to sustain any one of those findings, requires a reversal.” Our ruling as to the first contention raised by the plaintiff in error disposes of the instant one.

The plaintiff in error was appointed by the" county court to the honorable and important office of a judge of election. His plain duty, under his oath of office, was to guard the ballot box, but he betrayed the trust reposed in him and aided and abetted a conspiracy that had for one of its objects the placing of illegal ballots in the box. The record discloses that the conspirators did not hesitate to use violence in furtherance of their objects. Such a conspiracy is in its nature treasonable, for it strikes at the very life of the Republic.

The judgment of the county court should be and it is affirmed.

Affirmed.

Barnes, P. J., and Gridley, J., concur.


text:
    Charles A. Phelps, Appellant, v. Columbia Phonograph Broadcasting System, Inc., Appellee.
    Gen. No. 33,528.

      Opinion filed December 31, 1929.
    Gray Phelps and Arthur O. Graves, for appellant.
    Eastman, White, Hawxhurst & Lind, for appellee; Homer C. Dawson, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.

This is an original attachment brought by the plain- . tiff, Charles A. Phelps, against the defendant, Columbia Phonograph Broadcasting System, Inc., a corporation. Plaintiff’s affidavit alleges that defendant “is indebted to him, after allowing all just credits and set-offs, in the sum of $5,,472.70, upon an account for legal services rendered, secured and furnished, amounting to the sum of $5,000; court reporter’s services, secured and furnished, amounting to the sum of $358.91; and moneys paid, laid o.ut and expended amounting to the sum of $113.80”; that defendant “is not a resident of this State and that its place of residence is at New York City, in the State of New York.” A bond was filed and a writ of attachment issued. Later, defendant entered a special appearance for the sole purpose of moving the court to quash the writ, for the reason that the affidavit and declaration filed “both show on their face” that the plaintiff’s claim is for unliquidated damages and that “an original attachment will not lie in Illinois for unliquidated damages.” The court sustained the motion, quashed the writ and dismissed the suit at plaintiff’s costs. Plaintiff has appealed.

Sections 1 and 2 of the Attachment Act, Cahill’s St. ch. 11, TÍ1T1 and 2, so far as they are material to the question before us, are as follows:

‘ ‘ Section 1. . . . That in any court of record having competent jurisdiction, a creditor may have an attachment against the property of his debtor, or that of any one or more of several debtors, when the indebtedness exceeds $20, in any one of the following cases:

“First — "Where the debtor is not a resident of this State. . . .,

‘ ‘ Sec. 2. To entitle a creditor to such writ of attachment, he or his agent or attorney shall make and file with the clerk of such court, an affidavit setting forth the nature and amount of the indebtedness, after allowing all just credits and set-offs, and any one or more of the causes mentioned in the preceding section, and also stating the place of residence of the defendants, if known, and if not known, that upon diligent inquiry the affiant has not been able to ascertain the same.”

Plaintiff contends that the court erred in quashing the writ and dismissing the suit. Defendant contends that the court ruled correctly and for the reason that. “an original attachment will not lie in Illinois for an unliquidated claim,’’ and it cites in support of its position the following cases: Steele-Wedeles Co. v. Shoodoc Pond Packing Co., 153 Ill. App. 576; Lepman & Heggie v. Inter-State Produce Co., 205 Ill. App. 270; Capes v. Burgess, 135 Ill. 61, and Duncan Lumber Co. V. Leonard Lumber Co., 332 Ill, 104, 106. The last case cited has no bearing upon the Attachment Act, Cahill’s St. ch. 11.

In American Lumber Co. v. Leach, 207 Ill. App. 62, the court, in discussing the question now before us, analyzes and comments on the other three cases cited by defendant, and we are in accord with what is there said as to these cases. We have examined the briefs in Lepman & Heggie v. Inter-State Produce Co., supra, and we find that counsel for plaintiff and defendant assumed in their arguments that an original attachment would not lie to recover unliquidated damages, and the only question discussed was whether the damages claimed were liquidated or unliquidated. The so-called rule that under the Illinois Attachment Act, Cahill’s St. ch. 11, an original attachment will not lie to recover unliquidated damages, owes its origin to Steele-Wedeles Co. v. Shoodoc Pond Packing Co., supra, and while "the court stated that the rule must be considered as settled, the only case cited in support of it (Capes v. Burgess, supra) passed upon the Garnishment Act, Cahill’s St. ch. 62.

In Humphreys v. Matthews, 11 Ill. 471, 472, the claim was one for unliquidated damages and the court had before it the question as to whether an action of account, against a nonresident, could be commenced by original attachment. It was there said:

“Our attachment act is very broad, and the benefit of its provisions is not confined to any particular form of action. Any creditor is authorized, under certain circumstances, to sue out an attachment, and the statute is silent as to the nature or form of the action in which the writ may issue. The law was designed to furnish a creditor with the means of collecting his debt, in a case where he would be unable to do so in the ordinary mode of proceeding, and we can see no reason why it should not be as applicable to actions of account as to any other class of cases. . . .

“As to the sufficiency of the affidavit, there can be no question. After setting forth the dealings between the parties, and the nature of the indebtedness, with great particularity, it alleges that the defendant, by means of the premises, is indebted to the plaintiff in the sum of four hundred and fifty-three dollars and fifty-four cents, and that said defendant is not a resident of the state. Upon- such an affidavit an attachment may properly issue.”

The attachment act then in force, in so far as it related to the nature of the claim allowed under it, was practically the same as the present one. In American Lumber Co. v. Leach,, supra, the court challenged the correctness of the rule laid down in Steele-Wedeles Co. v. Shoodoc Pond Packing Co., supra, and undoubtedly would have held contrary to it if it had been necessary to the decision of the case to do so. Hoosier Veneer Co. v. Trusts & Guarantee Co., 283 Fed. 1, was an attachment action begun in an Illinois court for the recovery of damages for a breach of contract. After the case was removed to the federal court, upon motion of defendant, the attachment writ was quashed and the suit dismissed, and upon appeal the order of the district court was reversed and the cause was remanded with directions to overrule the defendant’s motion to quash and for further proceedings. On a petition for a rehearing defendant contended that the attachment writ was not taken out in aid of a pending suit under section 31 of the Illinois Attachment Act, Cahill’s St. ch. 11, If 31, but was an original attachment proceeding and that therefore it would not lie because the damages were not liquidated. In passing upon this contention the court said (p. 8):

“But, however much discussion may be indulged respecting the interpretation of section 31, or of the point now for the first time pressed, we believe that the later view of the Supreme Court of Illinois would impel the conclusion that the attachment in the present case may stand as ‘original,’ rather than as ‘in aid.’ See Humphreys v. Matthews, 11 Ill. 472, and May v. Disconto Gesellschaft, 211 Ill. 310, 71 N. E. 1001.”

In its original opinion the court stated that there was a diversity of opinion in the Appellate Court reports as to the correct interpretation of section 1 of the act, but when Humphreys v. Matthews, supra, and May v. Disconto Gesellschaft, 211 Ill. 310, were called to its attention, it held contrary to the ruling in Steele-Wedeles Co. v. Shoodoc Pond Packing Co., supra. The claim in Hoosier Veneer Co. v. Trusts & Guarantee Co., supra, was one for unliquidated damages. May v. Disconto Gesellschaft, supra, was an original attachment proceeding. The affidavit stated that the defendant was indebted to the plaintiff, “after allowing all just credits and set-offs in the sum of $5,000, upon certain drafts and acceptances,” obtained by the defendant “by means of gross forgeries and various other criminal and fraudulent devices. ’ ’ Certain garnishees were served and plaintiff filed a declaration in trespass on the case by which it sought to recover the indebtedness mentioned in the affidavit. The garnishees answered admitting an indebtedness. May (appellant) interpleaded and set up an assignment to him of the money in the hands of the garnishees. Afterwards plaintiff filed an amended declaration in assumpsit. May moved the court to quash the writ and dismiss the suit, and discharge the garnishees, because (inter alia) the cause of action had been changed by filing the amended declaration. The court said (p. 315):

“The parties to this appeal unite in assuming that an action ex delicto cannot be the basis of an original attachment suit, and it is urged by appellant that as the cause stated in the original declaration was one clearly in tort, it must be held to have been an action in tort and that as a consequence thereof the attachment writ and all proceedings thereunder were void and appellant’s assignment of $3,000 of the fund was therefore effective. An inspection of the language above quoted from the affidavit for attachment shows that the action is brought to recover money which the defendant obtained by fraud and misrepresentation, and while an action ex delicto may be brought, it is also true that the plaintiff may waive the tort and sue in assumpsit- for money had and received. ... It follows, therefore, that as the affidavit set forth the nature and amount of an indebtedness for which a suit in assumpsit could be brought, it was sufficient to give the court jurisdiction.” (Italics ours.)

We agree with American Lumber Co. v. Leach, supra, and Hoosier Veneer Co. v. Trusts & Guarantee Co., supra, that May v. Disconto Gesellschaft, supra, is an authority against a contention like defendant raises. In the latter case the damages claimed were unliquidated, but the court held that the affidavit was sufficient to give the court jurisdiction of the subject matter, and Hoosier Veneer Co. v. Trusts & Guarantee Co., supra, and American Lumber Co. v. Leach, supra, are to the same effect. Therefore, in considering the bearing of these cases upon the instant question, it must be borne in mind that the contention of the defendant is based upon- the theory that where the damages claimed are unliquidated, the court has not jurisdiction of the subject matter of the suit, and the defendant by its special appearance challenged the jurisdiction of the court as to the subject matter. A lack of jurisdiction of the person may be waived, but a lack of jurisdiction of the subject matter cannot be-conferred even by agreement, and may be raised by parties or the court at any,time, and therefore the cases just cited — in each of which unliquidated damages were claimed — directly bear upon the instant question.

The basis of the defendant’s conténtion is that the word “indebtedness” in section 2 must be held to mean a liquidated claim. In 6 C. J. 81, it is said: “The remedy by attachment is not confined to cases where debt, in the technical sense, exists; it extends to every demand arising ex contractu where any fixed standard for determining the amount is supplied by the contract itself or the law acting upon it.” (Italics ours.) The author cites many cases in support of this text. In Drake on Attachment, 5th Ed., p. 12, the author says:

“It (debt) is a word in common use, and must needs have a natural, plain and ordinary signification; and wherever, as in connection with the subject of attachment, it occurs in a statute, it comes within the principle of construction expressed in Dwarris on Statutes, 573, that ‘the words of a statute are to be taken in their ordinary and familiar signification and import, and regard is to be had to their general and popular use; ’ and laid down by Kent, that ‘the words of a statute, if of common use, are to be taken in their natural, plain, obvious, and ordinary signification and import.’

“Blackstone says, ‘The legal acceptation of debt is, a sum of money due by certain and express agreement; as by a bond for a determinate sum; a bill or note; a special bargain; or a rent reserved on a lease; where the quantity is fixed and specific, and does not depend upon any subsequent valuation to settle it.’

“This, however, is not the popular acceptation of the word. In general use it is not regarded as a technical word, nor written or spoken in a restricted or technical sense; bttt is universally employed as expressing whatever one man owes another, in any form of liability arising ex contractu. This, too, is its signification, as given by all English lexicographers.” (Here the author cites the definitions given by seven well known lexicographers.)

In Fisher v. Consequa, 2 Wash. C. C. 382 (opinion by Mr. Justice Washington of the United States Supreme Court), in passing upon the Pennsylvania Attachment Act, which allowed attachment in cases of debt, it is said (pp. 385-8):

“What is a debt? In strict language, it is a precise sum due by express agreement, and does not depend upon any after calculation to ascertain it. . . . But is this the only case within the mischief intended to be remedied by this law? Surely, an inhabitant of Pennsylvania is not less injured by the want of a remedy to recover what is due to him by a foreigner, upon a sale of property, where no price was stipulated, than he would be if a fixed price had been agreed on. In the latter case, the defendant is indebted to the plaintiff in a precise sum; and in the former, a sum equal to the value of the property sold, not then, it is true, liquidated, but depending upon the value to be fixed at the trial. The uncertainty of the sum due, does not, in the common understanding of mankind, render it less a debt. A promise, whether express or implied, to pay as much as certain goods or labour are worth, or as much as the same kind of goods may sell for on a certain day, or at a certain market; or to pay the difference between the value of one kind of goods and another, creates, in common parlance, a debt; and the person entitled to performance does not speak of his claim, as for damages, but for a debt, to the amount which he considers himself entitled to.”

In Roelofson v. Hatch, 3 Mich. 277, the court, in passing upon the meaning of the word “indebtedness” in the attachment act of that state, said:

< £ There are many contracts where, although the damages are not liquidated in the contract, yet by well established rules of law they are capable of being ascertained definitely upon proof of the facts, and to hold, that in all this class of cases, the plaintiff is debarred of this remedy, would be to defeat, in a great measure, the purposes sought to be secured by its enactment. . . . What is an indebtedness? It is the owing of a sum of money upon a contract or agreement and in the common understanding of mankind, it is not less an indebtedness that such sum is uncertain. The result of a contrary doctrine would be, to hold any liability which could only be the subject of a general indebitatus assumpsit, quantum meruit, or quantum valebant count in a declaration, such an indebtedness as could not be the subject of this remedy by attachment. . . .

“In the present ease the contract furnishes such standard, equally as does any contract for goods sold, or work or labor done, without express agreement as to price or compensation.” (Italics ours.)

In Carland & Bierne v. Cunningham, 37 Pa. St. 228, it was held that under an attachment act which allowed attachment in cases of debt an attachment would lie for such damages resulting from the breach of a contract as may be reduced to certainty by a definite standard. In Connecticut the statute gave the “process” to creditors against their debtors, and in New Haven Steam Saw-Mill Co. v. Fowler, 28 Conn. 103, it was said:

“Lawyers often speak of a debt as that for which an action of debt will lie, meaning by it a sum of money due by certain and express agreement; but in a less technical sense, says Bouvier, it means any claim for money. And in a still more enlarged sense, it denotes any kind of a just demand. It is, therefore, equally proper to say of one who is under obligation to discharge some duty, or to pay damages for its non-performance, that he is a debtor, as it is to say the same of one who is under obligation by bond to pay a sum of money.”

In Wilson v. Wilson, 8 Grill. 192, the court held that the term “indebted” in the Maryland Attachment Act was not to be construed in a technical or strict legal sense and that an attachment might issue on any demand arising ex contractu, where the contract ascertains the amount of indebtedness, or fixes a standard so certain as to enable the plaintiff, by affidavit, to aver it, or the jury, by their verdict, to ascertain and find it. In Lenox, Maitland & Renwick v. Howland, 3 Caines 323, in passing upon the New York Attachment Act, which required a creditor to swear that the party is indebted to him in the sum of $100 or upwards, the court held that “it does not follow that the demand is to be certain as to fall within the technical definition of a debt, or as to be susceptible of liquidation, without the intervention of a jury. . . . Being indebted is synonymous with owing; it is sufficient, therefore, if the demand arises on contract.” Many other attachment cases to the same effect as the foregoing might be cited.

Under section 31 of our Attachment Act, Cahill’s St. ch. 11, jf 31, an attachment in aid will lie even for a tort claim and a plaintiff may commence a tort action and immediately thereafter sue out a writ of attachment in aid of the suit. (Schulenberg v. Farwell, 84 Ill. 400.) Section 31 provides that plaintiff, in his affidavit, must show “his right to an attachment under the first section of this Act,” and, therefore, even in a tort action he must aver that the defendant is indebted to him in a certain amount, thus plainly showing that the legislature did not use the words “debtor” and “indebtedness” in a narrow and strictly technical sense. In our judgment section 31 cannot be ignored entirely in interpreting sections 1 and 2, and with such a broad, liberal attachment in aid section, why should sections 1 and 2 be given the interpretation that defendant contends for, especially as many of the courts of the United States, in interpreting attachment acts, have disregarded Blackstone’s narrow, technical definition of the word “debt”?' If the defendant’s contention is correct, then a creditor is barred from the benefit of original attachment under any contract for goods sold, or, work or labor done, where there is no express agreement as to price or compensation, although the value of the goods or services is clearly ascertainable by competent, legal evidence. The mere fact that witnesses might differ as to the value of the goods or services should not deprive a creditor of the benefit of the act, as the law fixes a standard for determining the value of the goods or services-. The defendant’s construction, in our opinion, does violence to the plain intent of the act, and in practice would emasculate what was intended to be a useful remedy for a creditor.

After a very careful consideration of the important question involved in the present appeal, we have reached the conclusion that as the plaintiff’s demand arises ex contractu an original attachment will lie even though the claim is for unliquidated damages. Whether original attachment would lie in tort actions is not before us for determination.

The judgment of the superior court of Cook county is reversed and the cause is remanded with directions to the trial court to overrule the defendant’s motion to quash the writ of attachment and for further proceedings not inconsistent with this opinion.

Reversed and remanded with directions.

Barnes, P. J., and Gridley, J., concur,


author: Mr. Presiding Justice Wilson

text:
    Lillian Bollenbach, Appellee, v. Jacob Bloomenthal and Edgar Bennecke, Trading as Bloomenthal & Bennecke, Appellants.
    Gen. No. 33,419.

      Opinion filed January 2, 1930.
    Edward W. Rawlings, for appellants; Don C. Wray, of counsel.
    Joseph H. Hinshaw and William A. Hanson, for appellee.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

This is an appeal from a judgment for $8,000 entered in the superior court of Cook county in favor of the plaintiff Lillian Bollenbach and against the defendants Jacob Bloomenthal and Edgar B. Bennecke, co-partners, doing business as Bloomenthal and Bennecke, based upon an action for trespass on the case brought to recover damages sustained by reason of the negligence of the defendants in and about the extraction of a tooth of the plaintiff on the 30th day of October, 1925. The cause of action was tried on the 1st, 3rd, 9th and 15th counts of the declaration.

The first count avers that the plaintiff, for a reward, hired the defendants to extract a defective tooth; that she, herself, was in the exercise of due care for her own safety;, that the defendants so carelessly, negligently and unskilfully handled and managed said tooth and the instruments and apparatus in the treatment and extraction thereof, that a certain metal filling and crown of said tooth was caused to and did pass down the throat of the plaintiff and lodged in her lungs and thereby the plaintiff was injured, etc.

The third, ninth and fifteenth counts were practically the same as the first with a slight differentiation in the language used.

The fourth count charged negligence in general terms in that the defendants so negligently and carelessly performed the operation and handled the instruments in question that, as a result, the accident occurred.

No point is made on this appeal as to the amount of the damages.

From the facts, it appears that the plaintiff, Lillian Bollenbach, was a teacher in the Starrett School for girls, located in Chicago. On October 30, 1925, plaintiff was suffering from a severe toothache and called upon Dr. Honoroff, a dentist, who examined her tooth and found that it was infected. He thereupon gave her a card upon which the tooth to be extracted was indicated and sent her to the defendants. One of the defendants, Dr. Bloomenthal, agreed that the tooth should be extracted under a general anaesthetic. A young lady assistant then put an apron on the plaintiff, the instruments were laid upon the table, a prop placed in the patient’s mouth to keep it open and the anaesthetic administered. According to the defendants, a mouth pack was then inserted in the back part of the mouth to prevent air rushing in, to make the induction of the anaesthetic quicker, and to prevent foreign particles, whether of tooth or filling from passing down the windpipe tract. During the extraction, the tooth split into a number of pieces, some of which were picked up by Dr. Bloomenthal. The patient was then allowed to revive and the mouth pack and the mouth prop were taken out.

Dr. Bloomenthal testified that when he saw the roots were out, he attempted to assemble the rest of the tooth and the filling, but they were so fractured and had flown around so much, that there was no sure way of knowing whether or not there were any more unaccounted for.

Plaintiff testified that while resting on the couch, after the operation, it was hard for her to get her breath and that she felt like a person who had phlegm in his throat and she tried to cough in order to remove it. After a 15-minute rest she went home. She testified that she suffered from that time on with a persistent cough and a condition resembling asthma; that this condition continued for a considerable length of time. She was later taken to the Illinois Central Hospital for tests and, in November 1925, an X-ray disclosed the presence of a foreign body in the bronchial tube. She was directed by her physician to go to Tucson, Arizona, and was treated by a number of physicians. On January 24, 1926, during a severe coughing spell, she coughed up a portion of the tooth and the filling, — both of which were introduced in evidence and marked as an exhibit in the cause. The exhibit identified by the plaintiff consisted of a good sized amalgam filling with a piece of the tooth attached.

The case proceeded to trial upon the theory that the facts were sufficient to invoke the doctrine of res ipsa loquitur.

It is urgently insisted on behalf of the defendants that the facts do not bring the case within that rule; that under the averment of the declaration the doctrine of res ipsa loquitur is inapplicable; that even though it were applicable, the presumption raised by it is rebutted by the evidence; that the verdict is manifestly against the weight of the evidence; that the court erred in permitting counsel for the plaintiff to argue the doctrine of res ipsa loquitur to the jury as applicable to the case; that the court erred in giving certain instructions on behalf of the plaintiff and permitting the asking of certain hypothetical questions which invaded the province of the jury.

From the facts in the case it appears that, at the time of the operation in question, plaintiff was under an anaesthetic in the office of the defendants, entirely without consciousness, incapable of knowing or understanding what went on and without power to direct or control the manner or means employed, or safeguards taken, and without opportunity of knowing whether or not the operation had been successfully performed. These were all matters entirely within the care, knowledge and control of the defendants. The doctrine of res ipsa loquitur asserts that whenever a thing which ' produces an injury is shown to have been under the control and management of the defendant, and the occurrence is such as in the ordinary course of events does not happen if due care has. been exercised, the fact of injury itself will be deemed to afford sufficient evidence to support a recovery in the absence of any explanation by the defendant to show that the injury was not due to his want of -care.

While negligence as a general rule is. not to be presumed, yet under the doctrine of res ipsa, loquitur, the injury itself may afford sufficient prima facie evidence of negligence, and a presumption of such negligence may be created by the circumstances under which the injury occurred. This presumption remains until rebutted. It therefore devolved upon the defendant, under such circumstances, to overcome the presumption, and it becomes a question of fact for the jury as to whether or not the defendant has successfully accomplished this result. A court should not interpose its judgment for that of a jury under such circumstances, unless it can say that the facts are so overwhelmingly in favor of the defendant that, as a matter of law, the finding of the jury, under such circumstances, should be set aside.

We do not feel in the case at bar that we should substitute our opinion for that of the jury. We are unwilling to say that the explanation offered on behalf of the defendants was sufficient to overcome the presumption as a matter of law.

The Supreme Court of this State in the case of Feldman v. Chicago R. Co., 289 Ill. 25, in its opinion says:

“The rule is that negligence is never presumed, but that the circumstances surrounding the case where the maxim of res ipsa loquitur applies, amount to evidence from which the facts of negligence may be found; that is, in a case within the maxim of res ipsa loquitur, proof of the circumstances of such case and of the injury constitutes a prima facie case of negligence, and will justify a verdict unless such prima facie case is overcome by proof showing that the party charged is not at fault. (Chicago Union Traction Co. v. Ciese, supra; Chicago Union Traction Co. v. Newmiller, 215 Ill. 383; Chicago City Railway Co. v. Rood, 163 id. 477; New York, Chicago and St. Louis Railroad Co. v. Blumenthal, 160 id. 40; Hart v. Washington Park Club, 157 id. 9.) The burden rested upon defendants in error to overcome the presumption of negligence arising from the circumstances in this case. The record contains no evidence explaining the cause of the accident or overcoming the presumption of 'negligence.”

The defendants in the- case at bar undertook to show that they exercised reasonable care in the manner in which the extraction of the tooth was performed, but this evidence did not account for the manner in which, nor how, the filling and part of the tooth came to lodge in the throat of the plaintiff. The jury had a right to draw the conclusion from the facts, that the defendants had not properly provided against the happening of just such a condition. To the same effect see Chicago City R. Co. v. Barker, 209 Ill. 321; Rost v. Kee & Chapell Dairy Co., 216 Ill. App. 497; Johnson v. Marshall, 241 Ill. App. 80.

A very similar situation appears to have been involved in the case of Toy v. Mackintosh, 222 Mass. 430. In that case the court said:

“The jury properly could not have been instructed that upon the evidence their verdict must be for the defendant. Accordingly the defendant’s first request was refused rightly. The jury were not obliged to believe the expert testimony, offered by the defendant, that to allow the tooth to fall into the plaintiff’s throat was consistent with due care, although such testimony was not contradicted. Lindenbaum v. New York, New Haven & Hartford Railroad, 197 Mass. 314,. 323. We are of opinion that the question whether the defendant was negligent in permitting the tooth to be inhaled by the plaintiff when he was. in an unconscious condition was for the jury. ’ ’

It is insisted, however, that the declaration was insufficient to support a recovery based upon the doctrine of res ipsa loquitur. An examination of the counts of the declaration discloses, however, that they are general in their character, charging the defendants with negligently and carelessly performing the operation and failure to use due care in the extraction of the tooth. No specific act of negligence is charged.

In the case of O’Rourke v. Marshall Field & Co., 307 Ill. 197, relied upon by the defendants in support of their contention, it appears that the negligence charged was specific in its character, and not a general charge of negligence.

The case of Feldman v. Chicago R. Co., 212 Ill. App. 482, also cited in support of this contention, appears to have been reversed by the Supreme Court in the case already referred to, viz., Feldman v. Chicago Railways Company, 289 Ill. 25, and it was therein held that the charges of negligence in the declaration were sufficiently general to support a recovery on the ground contended for, namely, under the doctrine of res ipsa loquitur.

We are unable to say that any error was committed by the trial court in permitting counsel for plaintiff in his argument to the jury to point out the facts and to discuss the inferences that might be drawn therefrom. Counsel had the right to argue to the jury that they might draw their conclusions as to negligence from the circumstances and the facts in evidence.

It is insisted that the giving of instruction number 12, on behalf of the plaintiff, was error. This instruction has been approved in United States Brewing Co. v. Stoltenberg, 211 Ill. 531, and in cases cited in that opinion. We see no force in the argument that instruction number 15; given on behalf of the plaintiff and instruction number 10, given on behalf of the defendants, are contradictory. Instruction number 15, given on behalf of plaintiff, was a correct instruction. We doubt very much whether instruction number 10, given on behalf of the defendants, should have been given: The defendants are in no position to complain, because .instruction number 10 was favorable to defendants.

In the case of Bald v. Nuernberger, 267 Ill. 616, relied upon by the defendants, two contradictory instructions were given, but the one given on behalf of the successful party in that trial was bad and, consequently, the argument presented that they were contradictory and in conflict, was ground for reversal. That situation does not exist in the case at bar.

The error urged as to the giving* of instruction 13, on behalf of the plaintiff, is without force in that the instruction, if anything, is more favorable to the defendants than to the plaintiff. Moreover, it was an abstract instruction and could result in no harm sufficient to be considered reversible error.

An examination of the hypothetical question presented to the experts called on behalf of the plaintiff and the answers thereto, did not, in our opinion, invade the province of the jury. The facts presented by the evidence in the case were such as to create, in our opinion, a cause coming within the doctrine of res ipsa loquitur. Such being the case, it presented a question ' of fact for the consideration of the jury and placed the burden of proof on the defendants to rebut the presumption of negligence. We are unable to say, as a matter of law, that this has been done and, therefore, the judgment of the trial court should be sustained.

For the reasons stated in this opinion, the judgment of the superior court is affirmed.

Judgment affirmed.

Ryner and Holdom, JJ., concur.


text:
    James Nelson et al., Plaintiffs in Error, v. John J. Burns, Defendant in Error.
    Gen. No. 33,521.

      Opinion filed January 2, 1930.
    Harper E. Osborn and Slottow & Leviton, for plaintiffs in error; Harper E. Osborn and Charles Leviton, of counsel.
    James G. Skinner, for defendant in error.
   Mr. Presiding Justice Wilson

delivered the opinion of the court.

This is a writ of error to review a decree entered in the superior court of Cook county sustaining a general and special demurrer to the bill of complaint filed by James Nelson et al., complainants, against John J. Burns, defendant. Complainants elected to stand by their bill and it was dismissed for want of equity.

The bill of complainant charges that one Joseph Nelson, at the time of his death, was possessed of certain real estate known as 3958 and 3960 West Madison Street in the City of Chicago, and that he entered into a lease with the defendant, John J. Burns, by which he demised to the said defendant the first floor, known as number 3958 West Madison Street, also all of the second floor of the premises known as 3958-3960 West Madison Street, for a term of 14 years, commencing January 3, 1916, and terminating January 2, 1930, at a monthly rental of $264; charges that section 12 of said lease provided as follows:

“Twelfth: In consideration of the considerable outlay and cost of permanent improvements made by Lessee, in and about the said premises, it is further covenanted and agreed also, that at the termination of this lease by lapse of time (provided in all cases, however, that the Lessee has made and kept all of the covenants of this lease, theretofore to be performed), the said Lessee shall have the first refusal of securing another lease of the said premises in question, or any part thereof, for another term. In the event that the respective parties hereto cannot agree as to terms and conditions of any extension or new lease, and provided that such agreement has not been reached on or before May first, 1929, then an appraisal shall be made by three disinterested capable persons to determine a fair rental value of such premises for a new term. Such appraisers shall be owners of property in that part of the City of Chicago, County of Cook and State of Illinois, in which the premises in question are located, and such appraisers shall not be related to any of the parties in interest by consanguinity or affinity, who shall be selected in the following manner: The Lessee shall elect one appraiser and notify the Lessor in writing of the name of the person so chosen, and the Lessor shall thereupon, or within ten days, thereafter, choose one appraiser and notify the Lessee in writing of the person chosen, when the two persons so chosen shall within ten days thereafter, choose a third appraiser, and the three persons so chosen, or -any two of them shall proceed forthwith to appraise and establish the fair rental value of such lease on said premises for such new term, and the said appraisers, in making said appraisals, shall take into consideration the adaptability of said premises and improvements for the purposes for which they are used and for which purposes a new lease is desired, and also consideration shall be taken as to the value of improvements made or to be made by said Lessee, and said appraisers shall notify in writing within ten days thereafter the said Lessor and Lessee of the appraisal so made by them, and the decision of said appraisers, or any two of them, shall be final and binding. ’ ’

Charges that section 6 of said lease provided that the lessee covenanted and agreed upon the termination of said lease, to surrender and deliver up said premises; charges that the said Joseph Nelson died and that the complainants became possessed of the title to said real estate; charges that the value of said real estate has greatly enhanced and that the premises leased to the said defendant are worth a rental value , far in excess of the sum named in the lease; charges that the said defendant falsely and fraudulently claims • and pretends that under the terms of said lease, and particularly paragraph 12, he is entitled to a lease for a further length of time after the expiration of the one under which he is holding possession; charges that the, said defendant demanded the sum of $150,000 from Nelson during his lifetime as a condition for the delivering up of possession at the expiration of the term, January 2, 1930; charges that the complainants and the lessee have not been able to come to any understanding with respect to any extension or renewal of the lease in question; charges that the complainants have had numerous opportunities to rent said premises from January 2, 1930, at an increased rental, but that when prospective tenants have visited the premises in question, the defendant has falsely and fraudulently represented to them that he had a right to occupy the premises after January 2,' 1930, and intended to continue in possession thereafter; charges that, by reason ■ of said statements, the said defendant has cast a cloud upon the title of complainants which prevents them from leasing or otherwise disposing of the property and has caused irreparable loss to the complainants; charges that the said Burns will continue so to do unless restrained from so clouding the title.

The bill prays that the defendant be enjoined from interfering or attempting to interfere with the leasing of said premises, or from casting a cloud upon their title and interest by claiming any rights in the premises after the termination of the lease on January 2, 1930, and for such other relief as may be granted.

Section 12 referred to in the bill, as originally drawn and .presented to the defendant for signature, contained a provision to the effect that the lessee should have the first refusal of purchasing the premises outright, or securing a 99-year lease as to the premises set forth in the lease or any other adjacent ground or property owned by the lessee., This was stricken out and a notation to that effect inscribed on the margin of the lease opposite the section in question, signed by Nelson and Burns.

Stripped of its verbiage, the bill of complaint amounts to a request to a court of equity to restrain the defendant from clouding the title of the complainants by making statements to prospective lessees that he was entitled to another term under the lease in question.

. Defendant insists that the bill is filed for the purpose of procuring a declaratory judgment as to the construction of clause 12 of the lease and cites Willing v. Chicago Auditorium Ass’n, 277 U. S. 274, wherein the court in its opinion, says:

“Obviously, mere refusal by a landlord to agree with a tenant as to the meaning and effect of a lease, his mere failure to remove obstacles to the fulfillment of the tenant’s desires, is not an actionable wrong, either at law or in equity. And the case lacks elements essential to the maintenance in a Federal court of a bill to remove a cloud upon title. The alleged doubt as to plaintiff’s right under the leases arises on the face of the instruments by which the plaintiff derives title. Because of that fact, the doubt is not in legal contemplation a cloud, and the bill to remove it as such does not lie.”

The court found in that case that plaintiff simply sought a declaratory judgment in regard to the lease between himself and his landlord. It is insisted on behalf of complainants that this is not an attempt to procure a declaratory judgment, but that the defendant by his statements to prospective lessees, that he intended to remain upon the premises under his lease, after January 2,1930, was actionable in that he had no rights under the lease and, therefore, by such statements was injuring complainants;

Courts do not undertake to construe provisions of leases before a cause of action arises and will not undertake to construe them for the purpose of guiding litigants in regard to some future course of conduct. Neither does a case of this character come within the section of the Chancery Act Cahill’s St. ch. 22, § 50, giving to nisi prius courts the right to hear and determine bills to quiet title and to remove clouds.

There is no question of title involved in this proceeding. Both the landlord and the "tenant agree that the title is in the landlord. A tenant cannot dispute his landlord’s title. The lease, itself, is not a cloud. Complainants, however, seek to create a cloud by reason of statements of the tenant concerning a clause of that lease. We do not believe this is sufficient to place this proceeding among that class of cases intended by the provisions of section 50 of the Chancery Act, Cahill’s St. ch. 22, If 50. Chicago Auditorium Ass’n v. Cramer, 8 Fed. (2d) 998.

The provision of the lease contained in the instrument entered into by and between the parties, if in itself a cloud, was created by the acts of both the defendant and the complainants. In our opinion, however, section 12 of the lease is more than a cloud. It'is a claim under which the defendant asserts his right to a new lease. It may be a good claim or it may be a doubtful claim, but it is more than a cloud.

We see no force in the argument that he should be enjoined from calling the attention of prospective lessees to this clause in his lease, by insisting that his intention is to assert his rights thereunder. If he remained silent, under such circumstances, he might later be estopped by his conduct and silence from asserting his claim. If he should be asked by a prospective lessee as to what his rights were as a tenant in possession under his lease, he certainly would be obligated to explain his position. There appears to be- nothing-secret about the facts upon which the defendant bases his claim for a future lease. It is in writing and in the lease and in the possession of complainants and easily accessible to prospective lessees. By a simple reading of this section, they would be fully advised as to the rights, if any, of the defendant.

For other reasons the bill is demurrable. Spoken words are not construed as a cloud upon a title, especially when uttered by a person in possession of the premises. Possession alone is sufficient to create a right which the law says entitles a person in possession to be made a party to any proceeding involving a right.or title in the land. Parker v. Shannon, 121 Ill. 452; McCarty v. McCarty, 275 Ill. 573.

Complainants were not in actual possession of the premises in question and the premises were not unoccupied. A bill to remove a cloud upon the title can be maintained only where premises are unoccupied, or in possession of the one seeking to remove the cloud. Hooper v. Traver, 336 Ill. 275. This possession by the complainants must be an actual possession and not a constructive possession. Eaton v. Home Missionary Society, 298 Ill. 476.

Section 12 of the lease appears to be based upon a consideration caused by permanent improvements made or to be made upon the premises by the lessee. Complainants have made no tender in their bill of the cost of the improvements, nor offered tó do equity. If, as a matter of fact, improvements were made upon the premises, based upon the clause in the lease that the defendant was to be given á new term, in our opinion complainants might be required by a court of equity to do under the circumstances what equity would deem fit and proper.

The demurrers to the bill of complaint were properly sustained.

For the reasons stated in this opinion, the decree of the superior court is affirmed.

Decree affirmed.

Ryner and Holdom, JJ., concur.