text:
    Carl C. Shellabarger, Appellee, v. George A. Nattier, Appellant.

      Opinion filed March 4, 1937.
    Rehearing denied April 6, 1937.
    J. Paul Carter, of Nashville, and William A. Miller, of Salem, for appellant.
    Wham & Wham, of Centralia, for appellee.
   Mr. Justice Murphy

delivered the opinion of the court.

This is an appeal by defendant to reverse a judgment for $7,000 in favor of the plaintiff, entered on the verdict of a jury in an action on the case for personal injuries, motion for new trial having been overruled.

The complaint contains three counts, and in each of them it is alleged the plaintiff was riding in W. E. Peterson’s automobile as a guest and that the injuries were sustained when the defendant’s automobile collided with the Peterson automobile on the paved highway a short distance east of Centralia. In the first count the defendant is charged with general negligence in the operation of his automobile; the second charges the defendant with having driven his automobile off the paved highway and against the automobile in which the plaintiff was riding; the third that the defendant was driving an automobile of the first division as described by statute and that he drove on a public highway at a speed greater than was reasonable and proper having regard to traffic and the use of the way. The statute which is alleged to have been violated is set forth in the count. Defendant denied all the charges of negligence.

As grounds for reversal, defendant contends that the court erred in admission and rejection of evidence in overruling his motions for directed verdict, in the giving and refusing of instructions and in overruling motion for a new trial.

Plaintiff introduced in evidence a. free hand drawing made by Homer Easley, a witness, who observed the location of the automobiles immediately after the accident. The drawing was made before the automobiles had been moved and showed the distance they were from the pavement, the direction from each other and certain other objects referred to in the evidence. The drawing was prepared in the presence of two persons and when Easley had completed it he asked them to attach their signatures to it as evidence of their approval of its correctness. They insisted the left front wheel of defendant’s automobile was 30 inches north of the pavement instead of 24 inches as Easley had it. Correction was made and they signed it. The drawing had certain pencil notations on it which went beyond the scope of what a drawing may contain and be admissible in evidence but when it was offered in evidence plaintiff’s specific objection was that it had been changed to get the witnesses’ signatures. The drawing was offered in explanation of the witnesses’ evidence and not as being mathematically correct. The fact that one distance which marked a measurement, thereon was changed to meet the observations of another did not destroy its admissibility. Defendant urges other objections against its admissibility, but he is limited here to the specific objection made at the trial and all others will be considered as waived. Terre Haute & Indianapolis R. Co. v. Voelker, 129 Ill. 540; Village of Prairie DuRocher v. Schoening-Koenigsmark Milling Co., 248 Ill. 57; People ex rel. Nelson v. Citizens State Bank, 274 Ill. App. 468. The particular objection made was not tenable and was properly overruled.

On cross-examination of plaintiff’s witness, Peterson, questions were asked as to a trip he had made to Patoka a few days after the accident. The evident purpose was for asking impeaching questions as to a conversation he had with certain persons. On redirect in answer to plaintiff’s question the witness stated that he went there by appointment with the defendant. This was objected to. The inquiry should not have proceeded further but in answer to the next question he stated that he went there in reference to a settlement. This was improper but we do not consider it so prejudicial as to cause a reversal. The inquiry was pursued further by this question, “A settlement in which he would pay you or you would pay him?” Defendant objected to the question on the grounds that it was leading. The question was not proper as calling forth matters in reference to a compromise but that reason was not assigned in the objection and is therefore waived. The question was not leading and the objection was properly overruled.

Defendant was permitted to prove that certain parts of his automobile were broken and, upon objection being made, was prevented from showing what parts had to be replaced with new parts. There was no error in this ruling.

Plaintiff testified that for a few days prior to this injury he had not been employed but that his last employment was as an accountant for which he received $110 per month. It did not appear that he had any other employment. Defendant says that proof was improper for the reason that it was not alleged in the complaint. The allegation in the complaint was that he had been and would be prevented from attending to his usual and ordinary affairs and duties and has lost and will lose divers great gains and profits he otherwise would have made and acquired. In Chicago & E. R. Co. v. Meech, 163 Ill. 305, after reviewing a number of decisions it ivas said, “The rule deducible from the cases in this State is, that in order to recover compensation for inability to work at the plaintiff’s ordinary and usual employment or business, all that is necessary in the declaration is the general averment of such inability, caused by the injury, and consequent loss and damage, and that proof of his particular employment or business and of his ordinary wages or earnings therein is admissible in evidence under such general averment, but that when it is sought to recover for loss of profits or earnings that depend upon the performance of a special contract or engagement, then these special and particular damages, and the facts on which they are based, must be set out in the declaration.” Chicago Union Traction Co. v. May, 221 Ill. 530. The evidence was properly admitted.

Defendant contends that there is no evidence tending to prove negligence and for that reason his motion for a direct verdict should have been given. The evidence discloses that the accident occurred about noon on the 31st day of May, 1935; that plaintiff as a guest of Peterson was riding with Peterson in a new automobile which Peterson had sold and was then on the way to make delivery to the purchaser. They drove in an easterly direction on the paved highway and, wishing to turn to the north into the aviation field, they first drove to the shoulder on the south side of the slab, and when another car passed, then proceeded in a northerly or north east direction across the slab toward the entrance to the aviation field. It appears that the defendant approached this place from the east and that the front of his automobile collided with the right hand side of the Peterson automobile. Plaintiff’s witnesses testified that the Peterson automobile was off or practically off the slab and on the shoulder on the north side when the defendant’s automobile crashed into it. Defendant and his witnesses testify that the Peterson automobile was on the slab crosswise of the west bound traffic lane. There is a similar sharp conflict as to the speed the defendant was driving and the distance he was from the crossing when the Peterson automobile started to cross the slab.

On the motion for a directed verdict the only question for the court was to determine whether or not there was in the record any evidence which with reasonable inferences to be drawn therefrom proved or tended to prove plaintiff’s claim and if there was, the motion should be overruled. Libby, McNeill & Libby v. Cook, 222 Ill. 206; Anderson v. Chesapeake & Ohio Ry. Co., 352 Ill. 561. The court did not err in overruling the motion for a directed verdict.

The defendant has argued the credibility of the plaintiff’s witnesses and the weight to be given to their testimony. In a case where the evidence is in conflict, as in this case, those are questions for the jury and their verdict will not be disturbed unless it is against the manifest weight of the evidence. There was ample evidence in this case to support plaintiff’s theory and since it was adopted by the jury, it should be permitted to stand.

Defendant.complains of the giving of plaintiff’s instruction No. 6 which is as follows: “The Court instructs the jury that if the negligence of two parties proximately contributes to cause an accident, through which a third party is injured, it is not alone a defense for one of said parties to show that the other was also guilty of negligence which contributed to cause the injury to the third party, if the third party was, at and before the time of the happening of the accident, in the exercise of ordinary care. ’ ’

The giving of this identical instruction was held to be reversible error in Grifenhan v. Chicago Rys. Co., 299 Ill. 590. The court said as an abstract proposition of law it was not materially wrong but criticized it in assuming the defendant was guilty of negligence; that it placed the burden upon the defendant of showing the negligence of the driver of the automobile in which plaintiff was riding was the proximate cause of injury and that it did not limit the negligence of defendant to that charged in the declaration. If the words “If the negligence of two parties proximately contributes to cause an accident through which the third party is injured” is an assumption that the defendant was negligent, then the defendant fell into the same error in his fourth instruction wherein it was said “that even though they find from the evidence that the defendant was guilty of negligence” and cannot now be heard to complain of the error of which he was likewise guilty.

Under the facts in this case we do not regard the words “it is not alone a defense for one of said parties to show that the other was guilty of negligence which contributed to cause the injuries of the third party,” if the third party was in the exercise of ordinary care, as telling the jury that the burden of proof was on the defendant to show that the negligence of the other party was the proximate cause. It is a statement of the legal proposition that where two persons are guilty of negligence, either one may be liable to the one injured. The jury could not have been misled by the reference to negligence, generally, for by the fifth instruction they were limited to the negligence of the defendant as charged in the complaint or some count thereof. It was not a reversible error to give instruction number six.

Complaint is made of instruction No. 8 on the ground that it assumes the plaintiff was in the exercise of due care. The reference in the instruction as to due care is 11 and that as approximate result thereof the plaintiff while in the exercise of due care and caution for his own safety was injured.” This is not an assumption of due care and various instructions were given which told the jury that before the plaintiff could recover he would have to prove that he was in the exercise of due care.

Complaint is made of instruction No. 9 which refers to the assessment of damages. Instruction similar in substance was approved in Donk Bros. Coal & Coke Co. v. Thil, 228 Ill. 233; Chicago & Milwaukee Elec. Ry. Co. v. Ullrich, 213 Ill. 170.

Objections are made as to the refusal of certain instructions tendered by the defendant but the court gave 16 instructions on behalf of the defendant and they sufficiently covered all propositions of law applicable to defendant’s defense.

The record is free from prejudicial errors and the judgment of the circuit court is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice John J. Sullivan

license: Public Domain

text:
    Kewanee Boiler Corporation, Appellant, v. The American Laundry Machinery Company, Appellee.
    Gen. No. 38,814.

      Opinion filed March 30, 1937.
    Rehearing denied April 13, 1937.
    Winston, Strawn & Shaw, of Chicago, for appellant ; James H. Cartwright and Albert W. Potts, both of Chicago, of counsel.
    Teller, Le-vit, Silvertrust & Levi, of Chicago, for appellee; Carroll A. Teller and H. J. G-oldberger, of Chicago, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.

This is an action by plaintiff, Kewanee Boiler Corporation, an assignee of the lessee’s interest under a long term lease, against a subsequent (and the ultimate) assignee of such interest for reimbursement for expenditures made by plaintiff in performing the lessee’s obligations under the lease, all of which expenditures arose after defendant’s default and include rent paid to the lessor and taxes, insurance and similar charges which constitute additional rent due under the lease. Plaintiff, having elected to stand and abide by its amended complaint after the trial court had sustained defendant’s motion to strike same, judgment was entered October 25, 1935, in favor of defendant and against plaintiff for costs. This appeal followed.

The facts as alleged in plaintiff’s amended complaint are substantially that a lease of certain premises on West Washington street, Chicago, was entered into March 28, 1922, between Crilly Brothers, as lessors, and Kewanee Boiler Corporation, an Illinois corporation, as lessee, for a term of approximately 20 years, at a gross rental of $280,000, payable at the rate of $1,166.66 monthly; that under the terms of the lease the lessor constructed a building upon the leased premises and the 20-year period of the lease began from the time of the completion of the building-; that article 21 of the lease provided that the lessee’s interest might he assigned without the lessor’s consent, under certain conditions therein set forth, provided, however, that the obligations of the lessee and any assignee were not thereby released or discharged; that the aforesaid Kewanee Boiler Corporation entered into possession of the premises and performed the obligations of the lessee under the lease until on or about November 26, 1927; that thereafter there were five assignments of the lessee’s interest under the lease, which were as follows: November 26, 1927, Kewanee Boiler Corporation, the original lessee, to Kewanee Boiler Company, a Delaware corporation; December 10, 1927, the Kewanee Boiler Company, a Delaware corporation, to the American Radiator Company; December 14, 1927, the American Radiator Company to the Kewanee Boiler Corporation, plaintiff; February 1, 1929, the Kewanee Boiler Corporation, plaintiff, to the General Laundry Machinery Corporation; and October 28,1930, the General Laundry Machinery Corporation to the American Laundry Machinery Company, defendant.

It was further alleged that all said assignments were by written instrument duly executed by the respective assignors and that all the successive assignees, including both plaintiff and defendant, entered into agreements by which they assumed all the obligations of the lessee under the lease; that each of the assignees entered into possession of the leased premises under the respective assignments and the obligations of the lessee, under said lease, were at all times performed until February 28, 1933, when defendant abandoned said leased premises and refused further to perform the covenants of the lease; that from February 1, 1929, when the General Laundry Machinery Corporation received its assignment of the lease from plaintiff, until April, 1930, it paid the rent provided by the lease directly to the lessors; that in April, 1930, the lessors notified plaintiff that thereafter they would look to it for payment of rent due under the lease; and that plaintiff thereupon so advised the General Laundry Machinery Corporation and commencing with the month of May, 1930, the latter paid the monthly rental to plaintiff, which in turn paid same to the lessors.

It was then alleged that in June, 1930, defendant entered into a contract with the General Laundry Machinery Corporation whereby it purchased from said corporation substantially all its assets, including its name, good will, etc., and as a part of said contract defendant assumed the obligations of said General Laundry Machinery Corporation, including its obligations under the lease; that this transaction was consummated on or about October 28, 1930, and separate agreements of assignment of lease and assumption of liability thereunder were executed as of that date and delivered; and that defendant’s agreement of assumption of the lease was, in part, as follows:

“In consideration of the foregoing assignment, the undersigned hereby assumes and agrees to make all payments from and after November 1,1930, and to perform all the covenants of the lease above referred to, to be made and performed.”

It was also alleged that defendant thereupon entered into possession of the leased premises; that defendant’s assignor, the said General Laundry Machinery Corporation, thereafter became insolvent, its affairs being placed in the hands of a receiver, and that it has been ever since and is now totally insolvent; that at the time of such take-over of the assets and assumption of the liabilities of its assignor by defendant, the American Laundry Machinery Company was fully aware of the procedure theretofore followed in complying with the terms of the lease, and in paying the rent for the month of November, 1930, defendant delivered to the General Laundry Machinery Corporation its check for $1,166.67, payable to plaintiff, with the following letter dated December 1,1930:

‘ ‘ Gentlemen:

“Rental, property located at 822 West Washington Blvd., Chicago, Illinois.

“Enclosed is our check for $1,166.67 in payment of rent for the month of December on the property located at 822 West Washington Blvd., Chicago, in accordance with the terms of the lease on said property, which has been transferred to us.

“Please sign and return the enclosed receipt.

Very truly yours,

The American Laundry Machy. Co.,

W. L. Clawson,

Asst. Treasurer.”

It was further alleged that each month thereafter to- and including February, 1933, defendant sent plaintiff a like check covering such rent, together with a letter of similar import; that on or about February 27, 1933, defendant having been in possession of the leased premises under said lease, assignment and assumption for more than two years, notified plaintiff that it intended to vacate said premises immediately and that it would no longer perform the covenants and obligations of the lessee under said lease or make any payments due thereafter; that February 28, 1933, defendant did vacate the premises; that no rent has been paid by defendant since that date; that plaintiff took possession of said premises from defendant purely for the purpose of minimizing the damages and preventing a default in a sublease of a portion of same under a stipulation with defendant that the acceptance of possession of the premises was without prejudice to plaintiff’s right to enforce the liability of defendant under said lease, assignment and assumption; and that thereafter upon the demand of the lessors, plaintiff continued to pay the rental to them as well as taxes and insurance on the leased premises and perform the other covenants and conditions of the lease.

Attached to the amended complaint is a statement of the amounts paid by plaintiff and the dates and purposes of such payments. Said statement contains also an itemized account of the income from the portion of said premises covered by a sublease made originally by defendant, which income has been credited to the defendant by deducting same from the amounts claimed due from it. The tax payments made by plaintiff were for general taxes on the leased premises for the years 1930, 1931 and 1932, during which period defendant was in actual possession. The net amount of expenditures over income claimed by plaintiff to be due from defendant for the period from March 1, 1933, to August 1, 1934, is $23,094.54.

■ Plaintiff contends that its amended complaint stated a cause of action which defendant should have been required to answer.

The essential question presented for our determination is whether the ultimate assignee of lessee’s interest under a lease, who assumed the obligations of same, is liable for the performance thereof to an intervening assignee, who being- also liable for its performance, has performed the conditions of the lease pursuant to demand by lessor.

It must be borne in mind that defendant, the ultimate assignee, enjoyed the undisturbed possession of the premises until it saw fit to voluntarily abandon them, that it sublet a portion of same and that at the time of its abandonment it was and still is under its assignment entitled to the possession of the premises during the balance of the term of the lease. It must also be borne in mind that defendant, as well as plaintiff, not only was an assignee of the lease but assumed its obligations under an appropriate written instrument. There was no privity of estate between plaintiff, which was an intermediate assignee, and defendant, the ultimate assignee. Neither was there any direct contract between plaintiff and defendant.

Preliminary to our discussion of the major issue involved it is well to consider the rules applicable generally to lessors, lessees and assignees of lessees in their relationship with each other. We think the following propositions, as stated in plaintiff’s brief, are clearly established:

“First, That an assignee of the lessee’s interest under a long term lease who does not agree to perform the lease during the balance of the term may be held liable for performance only during the period of his occupancy. During that period such assignee is liable to:

“ (a) The Lessor — by privity of estate;

“(b) The Lessee — and any intermediate assignee, who, being also liable on the lease, has performed the same — on the well settled principle that where two persons are liable for the performance of an obligation and one of such persons performs and the other enjoys the benefit of the performance then the person performing may recover over against the person who enjoys the benefits and should, therefore, bear the burden.

“The liability of such assignee for subsequent breach may be terminated by reassignment.

“Second. An assignee of the lessee’s interest under a long term lease, who assumes and agrees to perform the lease during the balance of the term, may be held liable by the lessor for performance both during the period of his occupancy and after reassignment. While in possession such assignee is liable to the lessor, the lessee and any intermediate assignee, who, being liable so to do, has performed the lease all in the same manner as one who has not expressly assumed the obligations. After termination of his occupancy such assignee is liable to the lessor and to his assignor by contract.”

That an assignee of a long term lease, who had assumed the obligations of same and thereafter reassigned said lease, is liable to the lessor for rent accruing after such reassignment is conclusively settled in Springer v. DeWolf, 194 Ill. 218, where the court said at p. 224: “The appellant [original assignee] received a conveyance of the leasehold estate, received possession of such estate and assumed to pay the rent. There was thereby established between the appellant and the appellee [lessee] a privity of contract and a privity of estate. That privity of estate was terminated by the conveyance and transfer of possession of the demised premises to McGinniss. But the privity of contract — the contractual liability of the appellant — was not thus terminated. No valid reason is apparent to us why the appellant should not pay the rent he assumed.” To the same effect are Johnston v. Messinger, 226 Ill. App. 397 and Kagan v. Gillett, 269 Ill. App. 311.

There can be no question, therefore, that defendant by its contract, assuming the obligations of the lease, became liable to the lessors to perform all the covenants of the lease, including that to pay rent during the entire remainder of the term thereof, regardless of whether it reassigned the lease or abandoned the premises. By its contract of assumption as a prior assignee, plaintiff’s liability to the lessors also continued, notwithstanding its reassignment of the lease.

As heretofore shown plaintiff’s immediate assignee was the General Laundry Machinery Corporation, which in turn assigned the lease as part of the general assignment of its assets to defendant, the latter assuming its assignor’s liabilities, including the specific assumption of the obligations of the lease. While the General Laundry Machinery Company is unquestionably liable to plaintiff as its immediate assignee under its contract of assignment and assumption, that company being insolvent, a judgment against it would be worthless and if limited to that remedy plaintiff would be precluded from recovery.

Plaintiff recognizing its liability and having been called upon by the lessors after defendant’s abandonment of the premises to make the payments provided to be paid by the lessee, and having complied with the lessor’s demand for such payments, is it entitled to reimbursement from defendant, which is primarily liable as the ultimate assignee of the balance of the term of the lease? This precise question has not heretofore been decided in this State, but upon reason and principle we can perceive no valid reason why defendant, the ultimate assignee, and as such still entitled under its assignment of the lease to the possession of the premises, should not pay the rent it assumed.

In Moule v. Garrett (1872) L. R. 7 Exch. 101, where the lessor recovered from the lessee damages for breach of a covenant to keep the premises in repair, committed while a subsequent assignee by mesne conveyance was in possession, and the lessee thereupon brought an action against such subsequent- assignee who had assumed the obligations of the lease and where practically the same contentions were advanced by the defendant as are advanced here, the court said at pp. 103-104:

‘ ‘ Cockburn, O. J. I am of opinion that the judgment of the Court of Exchequer is right, and that it must be affirmed. The defendants are the ultimate assignees of a lease, and the plaintiff, who is suing them for indemnity against the consequence of a breach of a covenant contained in that lease, is the original lessee. There is no doubt that the breach of covenant is one in respect of which the defendants, as such assignees, are liable to the lessor, and that they have acquired by virtue of mesne assignments the same estate which the plaintiff originally took. And I think that taking this estate from the assignee of the plaintiff, their own immediate assignor, they must be talcen to have acquired it, subject to the discharge of all the liabilities which the possession of that estate imposed on them under the terms of the original lease, not merely as regards the immediate assignor, but as regards the original lessee.

“Another ground on which the judgment below may be upheld, and, as I think, a preferable one, is that, the premises which are the subject of the lease being in the possession of the defendants as ultimate assignees, they were the parties whose duty it was to perform the covenants which were to be performed upon and in respect of those premises. It was their immediate duty to keep in repair, and by their default the lessee, though he had parted with the estate, became liable to make good to the lessor the conditions of the lease. The damage therefore arises through their default, and the general proposition applicable to such a case as the present is, that where one person is compelled to pay damages by the legal default of another, he is entitled to recover from the person by whose default the damage was occasioned the sum so paid. This doctrine, as applicable to cases like the present, is well stated by Mr. Leake in his work on Contracts, p. 41: ‘Where the plaintiff has been compelled by law to pay, or, being compellable by law, has paid money which the defendant was ultimately liable to pay, so that the latter obtains the benefit of the payment by the discharge of his liability; under such circumstances the defendant is held indebted to the plaintiff in the amount. ’

“Whether the liability is put on the ground of an implied contract, or of an obligation imposed by law, is a matter of indifference: it is such a duty as the law will enforce.' The lessee has been compelled to make good an omission to repair, which has arisen entirely from the default of the defendants, and the defendants are therefore liable to reimburse him.

“Willes, J. I am of the same opinion, on the ground that where a party is liable at law by immediate privity of contract which contract also confers a benefit, and the obligation of the contract is common to him and to the defendant, but the whole benefit of the contract is taken by the defendant; the former is entitled to be indemnified by the latter in respect of the performance of the obligation.

“Blackburn, J. I am of the same opinion, for the reasons given by my Brother Channell in the court below. ’ ’

In Burnett v. Lynch (1826) 5 Barn. & C. 589, referred to in Moule v. Garrett, supra, where the lessor had recovered from the lessee for breach of covenant to keep the premises in repair, committed while the assignee of the lessee was in possession, without any assumption of the obligations of the lease by such assignee, it was held that the lessee might maintain an action on the case founded in tort against the assignee for failure to perform the covenants of the lease during the time such assignee was in possession.

In Ashford v. Hack (1849) 6 U. C. Q. B. 541, where the lessee had been obliged to pay damages to his lessor for the failure of an assignee of his assignee to pay the rent and keep the premises in repair, in holding that the lessee was entitled to recover from the second assignee the amount which he had paid to the lessor, the court said at p. 542:

“Here the declaration, it is quite clear, shews at any rate no right of action in covenant by the lessee against Hack; and all that is said in Barrett v. Lynch in support of the action, founded as it was there on the plainest principles of justice, applies with at least equal force in the present case; for this defendant had not contracted with the plaintiff, who is suing him in tort, but took the place at second hand from Ramsay, through whom the plaintiff could derive no right of action. In this case, the plaintiff stands neither in the place of the lessor nor of his assignee, nor did he himself enter into any contract with the defendant, so that he could establish no action founded on contract. He would be absolutely without remedy at law, unless he could sustain this action; and it is fortunate that such a decision as that in Barrett v. Lynch has removed all difficulty. ’ ’

In Mason v. Smith, 131 Mass. 510, it was held that, even in the absence of any assumption of the obligations of the lease, a lessee may recover both from his assignee and a second assignee the taxes accruing during their respective terms, which the lessee had been obligated to pay to the lessor through their default. In 35 C. J., sec. 105, p. 1001, it is said that “the assignee is liable to the lessee for breach of covenants running with the land, although there has been an intermediate assignment; and the lessee is also liable in the nature of a surety as between himself and the assignee for the performance of the same covenants.”

In Studebaker Corp. v. Aetna Savings & Trust Co., 21 F. (2d) 385, decided by the United States Circuit Court of Appeals (seventh circuit), the Studebaker Corporation being the assignee of the lessee’s interest under a lease assigned the entire balance of the term to the Buck Company, which in turn assigned same to the defendant bank in trust. The Studebaker Corporation was called upon to pay and did pay to the lessor the rent accruing after the assignment of the lease by the Buck Company to the defendant bank. In that case it did not appear that the defendant had assumed the covenants of the lease, but the court, after concluding that the defendant was in possession or control of the premises, held at p. 387:

“We are of opinion that defendant must, under the circumstances, be held directly liable to pay the rent to plaintiff, as its landlord; but, if not, the facts show that there was privity of estate between defendant and the owner of the fee, to whom plaintiff, being obligated to pay the rent, did pay it, and is subrogated to the rights of the owner.

“Again, plaintiff may be held to have a right of recovery because, if there was an obligation on defendant to pay the rent to any one, then plaintiff was a mere surety for defendant, and it should repay.”

In Sun Realty Co. v. Rosenstein (Cal.), 290 Pac. 1053, after holding that where assignees of lease assumed lessees’ obligation, the lessees were sureties to lessor for assignees, who, as between themselves and lessor were principals, it was said at p. 1054:

‘ ‘ The legal relation here created is analogous to that of a grantee of a mortgagor who takes real property subject to a mortgage and agrees to pay such indebtedness. He becomes in law the principal debtor of the mortgagee, and the mortgagor becomes his surety.”

It will be noted that the fundamental basis upon which recovery was allowed in all the cases cited was the existence of liability upon the part of both the lessee and the assignee to the lessor. It is true that these cases all deal with defaults of subsequent or ultimate assignees during their occupancy of the leased premises, but, in our opinion, there is no reason why the principles of law invoked are not equally applicable where the ultimate assignee’s defaults are coupled with its voluntary and deliberate abandonment of the premises. The doctrine applied in Moule v. Garrett, supra, that “where one person is compelled to pay damages by the legal default of another, he is entitled to recover from the person by whose default the damage was occasioned the sum so paid, ’ ’ we deem particularly applicable to the situation presented here. We think that the conclusion is inescapable that, since, where there is no assumption of the obligations of a lease by a subsequent assignee, the right of the lessor is extended to the lessee and any intermediate assignee to recover against such subsequent assignee for his defaults during his occupancy of the premises, then a fortiori when there is an assumption of the obligations of the lease by the subsequent assignee and the lessor’s rights are thus enlarged, the rights of the lessee or any intermediate assignee are equally enlarged to the extent that said lessee or intermediate assignee may recover against the subsequent assignee on such assumption.

The major contention stressed by defendant in its brief and on oral argument to sustain the action of the trial court in striking plaintiff’s amended complaint is that all the assignments of the lease, including the assignment to it, were invalid in that they did not conform to the terms of the lease. Under its provisions the lessee was given the privilege of assignment without the consent of the lessor, with the continuing liability, however, of such lessee to be bound by its covenants. The lease also provided that any assignment “shall be inoperative and have no effect” unless (1) the instrument evidencing same is in writing, (2) the assignee in the assignment expressly accepts and assumes all the terms and covenants of the lease and becomes bound personally to comply with them, (3) the acceptance by the assignee is under seal, (4) the acceptance by the assignee is acknowledged, (5) the assignment is recorded in the recorder’s office of Cook county, Illinois, and (6) a duplicate of the assignment, duly executed, is delivered to the lessors within five days following its delivery to the assignee.

Although it occupied the premises for more than two years and paid the stipulated rent during that period, defendant now insists that because its contract of assignment and assumption, as well as all the previous contracts of assignment and assumption, did not comply with all the foregoing formal requisites of the lease, the assignment to it of the balance of the term of the lease was absolutely null and void. This position is untenable.

In plaintiff’s assignment to the General Laundry Machinery Corporation and the assignment by the General Laundry Machinery Corporation to defendant, all the requisites for assignment specified in the lease were complied with except those providing for the recording of such assignments and the delivery of a copy of them to the lessors. The assignments were in writing under seal and acknowledged, and the respective assignees expressly assumed the obligation of the lease. Under these circumstances it is preposterous to argue that such assignments were void. A lessee has a right to assign his term without the lessor’s consent in the absence of a prohibitive restriction in the lease. Even where the lease contains an absolute prohibition against assignment without the lessor’s consent, the rule is that an assignment in violation of such a prohibition is voidable and not void and the lessor may waive the condition. In addition to its occupancy of the premises under its assignment, defendant sublet a portion of them and collected rent from its subtenant until its abandonment. Such a sublease could have been made only on defendant’s assumption that it was a valid assignee, enjoying the rights and privileges of such and in a position to perform the obligations of a subleasor. (Everett v. Sexton, 280 Ill. App. 350.) The important specifications of the lease as to assignments were in each instance complied with and such as were not, could, of course, have been waived by the lessors, who must be held to have done so since they raised no objection to the occupancy of the premises by the tenants under the respective assignments. Defendant is still the ultimate assignee, the owner of the leasehold estate and entitled to the possession of the premises. While the lessors recognized the validity of all the assignments, they had the privilege of looking to any one of the assignees for payment of the amount due under the lease. Having insisted upon and secured payment from plaintiff for defendant’s defaults in the payment of the rent due from it, no satisfactory reason has been advanced why, in fairness and justice, defendant, having agreed to perform, should not be compelled to reimburse plaintiff.

It matters not whether plaintiff’s right to recover is predicated upon the doctrine that it is entitled to be subrogated to the lessors’ rights against defendant, whether, having made the payments to the lessors the defendant should have made, plaintiff is entitled as a surety to be indemnified by defendant which was primarily liable, whether both plaintiff and defendant being liable to the lessors, plaintiff performing the obligation and defendant enjoying the benefit of performance or being entitled to enjoy such benefit, the former should be allowed to recover over against the latter, or whether “being compellable by law” to pay and having paid the rent because of the default in payment by defendant, which was “ultimately liable to pay,” plaintiff is entitled to recover from defendant whose default occasioned the damage. In our opinion plaintiff’s complaint sufficiently states a cause of action and defendant should have been required to answer it.

Such other points as have been urged have been considered, but in the view we take of this cause we deem it unnecessary to discuss them.

For the reasons stated herein the judgment of the circuit court is reversed and the cause remanded with directions to vacate the order striking plaintiff’s complaint and for such further proceedings as are not inconsistent with the views expressed herein.

Reversed and remanded with directions.

Friend and Scanlan, JJ., concur.


text:
    The People of the State of Illinois for the Use of Joseph Heidinger, Appellant, v. United States Fidelity and Guaranty Company, Appellee.
    Gen. No. 39,191.
    Opinion filed March 30, 1937.

      Edward L. Bracklow, of Chicago, for appellant.
    Robertson, Crowe & Spence, of Chicago, for appellee ; Eugene P. Kealy and Carl E. Abrahamson, both of Chicago, of counsel.
   Mr. Presiding Justice John J. Sullivan

delivered the opinion of the court.

This appeal seeks to reverse the judgment of the circuit court entered April 24, 1936, in favor of the defendant, United States Fidelity & Guaranty Company, after the dismissal of plaintiff’s complaint on defendant’s motion, and also an order entered April 10, 1936, denying plaintiff’s motion for an order of default and judgment against defendant for its alleged failure to plead or answer within the time provided by statute.

This is an action upon the official bond of George E. Heatley, a constable, to recover damages of $235 and costs, the amount of a judgment in trover secured by Joseph Heidinger (hereinafter for convenience referred to as plaintiff) against the said Heatley in the circuit court April 9, 1934. The constable had seized an automobile under a writ of attachment in a proceeding brought by one William Roll of Blue Island, Illinois, against one Mrs. E. E. Rose, its alleged owner. Heidinger brought a replevin action to recover the automobile. The writ of replevin having been returned “no property found,” the cause was tried as an action in trover and the aforesaid judgment for $235 and costs against Heatley was rendered April 9, 1934, in the circuit court upon appeal from a judgment in Heatley’s favor entered before a justice of the peace.

It is alleged in the complaint in the instant case that ‘ ‘ on or about the 20th day of August, 1933, said George E. Heatley, as constable of Worth Township, Illinois, and under authority of that office, took possession of one 1931 Ford standard coupe . . . property of the plaintiff”; that “thereafter said George E. Heatley unlawfully withheld from plaintiff said automobile and refused to surrender the same to plaintiff”; that “on the 9th day of April, 1934, in the case of Joseph Heidinger v. George E. Heatley, in the circuit court of Cook county . . . the court decided that the said George E. Heatley unlawfully withheld possession of said automobile from the plaintiff and awarded judgment to the plaintiff in trover in the sum of Two Hundred Thirty-five ($235) Dollars . . . ”; that “said judgment is final, and that the said George E. Heatley now stands convicted of unlawfully and illegally withholding possession of said automobile from plaintiff”; and that ‘ ‘ said judgment and costs have not, nor have any part thereof, been paid by said George E. Heatley, or any one on his behalf.” Recovery is sought here against the defendant, United States Fidelity and Guaranty Company, as surety upon the official bond of the constable, upon the theory that “the finding in the judgment of trover that the constable wrongfully withheld plaintiff’s property, constitutes a breach of the bond. ’ ’

After it had been served with summons the defendant filed its appearance and on March 16, 1936, served plaintiff’s attorney with written notice that it had on the same day filed in the office of the clerk of the circuit court its written motion to dismiss plaintiff’s complaint on the following ground:

“1. It appears from the Complaint that this is a suit upon a constable’s official bond by the plaintiff, Joseph Heidinger, who alleges that his property was unlawfully taken possession of by said constable under authority of his said office; that thereafter the said Joseph Heidinger did institute a replevin action against the said George E. Heatley, constable, and did recover a judgment in trover against the said defendant for the sum of Two Hundred Twenty Five Dollars ($225).

“2. That as a matter of law, the plaintiff having-elected to institute an action of replevin against the defendant, George E. Heatley, as constable, and having recovered a judgment in said action, is barred from maintaining an action on the said George E. Heatley’s official bond as constable.”

Plaintiff’s written motion of April 8, 1936, for default and judgment because of defendant’s failure “to plead or answer within the required statutory time” was denied April 10, 1936, and on April 24, 1936, defendant’s motion to dismiss the complaint was sustained and judgment entered against plaintiff as heretofore stated.

Plaintiff contends that the obligation of the bond being joint and several, he had the right to maintain his action against the principal or surety or both and that his unsatisfied judgment against the constable is no bar to his instant action against the surety; that the trial court in dismissing- his complaint erroneously invoked the doctrine of election of remedies; and that “the filing- of a paper denominated a motion to strike with a clerk is ineffective as a motion.”

Defendant’s theory is that plaintiff having elected to institute an action of replevin against the constable and having recovered a judgment in trover in said action, is precluded from thereafter maintaining an action against the surety on the official bond, since the plaintiff was put to an election of remedies; and that its motion to dismiss plaintiff’s complaint was properly filed and the hearing thereon was in accordance with the recognized and established practice in the circuit court.

The principal question presented for our determination is whether the election of plaintiff to proceed against the constable in the first instance operated as • a bar to further proceedings against the surety on his bond.

No case has been cited and diligent search has failed to reveal one wherein a court of review of this State has had presented to it or decided this precise question under a factual situation such as is presented here. This dearth of authority may well be explained by the fact that it is almost universally recognized that an unsatisfied judgment against a constable for Ms official misconduct does not preclude an action against his surety for breach of his bond.

Defendant cites Briley v. Copeland, 14 Ill. 38, People v. Zingraf, 43 Ill. App. 337, and Presson v. Worthen, 66 Ill. App. 457, which it claims support its position that plaintiff, having elected to institute an action of replevin against Heatley as constable and having-recovered a judgment in trover in said action, could not thereafter maintain an action on his official bond, since plaintiff “was put to an election of remedies.” We do not consider these cases at all applicable.

In the Briley case, supra, the only question before the court was whether the justice of the peace who originally tried the cause had jurisdiction by reason of the amount of money involved. Concluding its brief opinion, the court there said that “a party may, at his election, sue the constable directly, or bring an action against Mm and Ms sureties on his official bond. ’ ’ This statement was purely dictum, but, in any event, it lends no support to defendant’s position. Even a strained construction of the language used could not twist it into holding that an unsatisfied judgment against the constable, whom it was elected to sue directly, precluded a subsequent action against the sureties on his official bond.

In the Zingraf case, supra, the facts as stated by the court are that “the action is upon the bond of a constable, against him and his sureties, alleging as the breach of the condition ‘to faithfully discharge the duties of his office as constable, ’ that Zingraf refused to surrender to Shambaugh property of hers which he had levied upon under an execution against her, upon her claim that it was exempt under the statute. The declaration shows that she had recovered a judgment in trover against him, for the conversion of the property, but without satisfaction.” While the court stated that “the briefs are mainly for or against the proposition, that judgment in trover against the constable is a bar to any recovery upon his official bond, ’ ’ it went on to say “whether the circuit court held that proposition to be the law and decided the case upon it, we have no means to ascertain,” and based its decision upon the insufficiency of the allegations of fact in the declaration to show “official misconduct, constituting a breach of the condition of the bond.” But Justice Gary, who wrote the opinion of the court, in commenting upon the proposition above referred to, did say that “it would seem easier in the great conflict of authority to show that such a judgment [against the constable] fixed the liability of the defendants [sureties], than that it discharged them,” citing Freeman on Judgments, sec. 180, and Black on Judgments, secs. 588, 590. Reference to Freeman’s work discloses that the author assumes and considers as established the right of a party who has secured a judgment against a sheriff or constable but without satisfaction, to proceed against the sureties on his official bond, and that the conflict of authority mentioned by Justice Gary is rather as to the effect of the judgment against the principal for the purpose of charging, the sureties on his bond in the subsequent action against them. Black on Judgments is to the same effect.

In Presson v. Worthern, supra, cited by defendant, the facts as stated therein are: “Appellee Worthen, a constable, having an execution against J. A. Press-on, levied the same upon four hogs and a box, which was the property of appellant [C. C. Presson]. The hogs were recovered by appellant in an action of replevin before a justice of the peace. The box was not found, and appellant did not seek to recover the value thereof, or damages for the wrongful taking and detention of the property. Afterward appellant brought an action on the constable’s official bond for the recovery of these items, together with damages for time lost and expenses incurred in the prosecution of the replevin suit.” It will be noted that the aggrieved party recovered his hogs in his replevin action against the constable and that he sought no damages against him for the wrongful taking and detention of his property. The court held at p. 459: “The law does not permit the plaintiff to split one cause of action. He cannot replevy part of the property, and then institute another replevin suit for another part. If he fails to secure part of the property under the writ, he must recover its value in the same suit, or be barred from recovery thereof. The aggrieved party is put" to an election between remedies, and, if he chooses replevin, must recover his damages in that action.” This case presents an entirely different aspect than the instant case and the court properly held that “the law does not permit the plaintiff to split one cause of action.” There was no unsatisfied judgment in the replevin action against the constable in that case, and, in our opinion, the conclusion reached by the court that “the aggrieved party is put to an election between remedies, and, if he chooses replevin, must recover his damages in that action,” must be considered only in the light of the peculiar facts in that case.

If we assume for instance that a constable under a writ of attachment wrongfully seized a watch of a third person, which was treasured more as a keepsake than for its intrinsic value, we think that it would be preposterous to contend that it is the law that such third person’s action of replevin, brought in the hope of recovering such keepsake, which was unsuccessful to that end but resulted in an unsatisfied judgment in trover, barred him from recovery against the surety on the constable’s bond.

A recovery against a sheriff or constable alone, without satisfaction, for a matter which constitutes a breach of his official bond, is not a bar to a subsequent suit against his sureties on the bond. (Brandt on Suretyship, sec. 694.)

In Treasurers of State v. Sureties of Oswald, 2 Bailey Law (S. C.) 214, where it was contended that recovery in assumpsit against a sheriff discharged the sureties on his official bond, the court said at p. 215:

“The legal proposition, arising out of the defendant’s plea, is, that they were discharged by the judgment obtained against their principal, Oswald. As applied to joint and several obligations, there can be no question, that a judgment against one of several obligors, without satisfaction, is no bar to a recovery against the others. Whatever may be the effect of the recovery against Oswald, as to his own liability, the liability of these defendants remains precisely as it was before. They were not parties to that suit, nor would they have been liable in that form of action: if liable at all, it is upon their bond, and in this form of action; and their liability must be resolved by the rule before laid down, about which there is no difficulty. ’ ’

In State v. Cason, 11 S. C. 392, it was held that a judgment recovered against a sheriff, after the expiration of his term for moneys received while in the office, is no bar to a subsequent action against the sheriff and the sureties on his official bond, jointly executed, alleging breaches generally and setting forth the recovery of this judgment against him, and his failure to pay the same.

In Charles v. Haskins, 11 Iowa 329, the court held at pp. 334, 335: “The next question presented for our consideration is, whether the judgment against Has-kins is a bar to the right of plaintiff to recover, as against the sureties, upon the official bond. . . . The relation existing between the sheriff and his bondsmen is that of principal and sureties. And, although under our statute a party aggrieved by any breaches of the bond, may sue the principal and sureties together, yet he is not compelled so to do. Nor by his election to sue the sheriff alone is he precluded his remedy against the sureties.” To the same effect are People v. Schuyler, Sheriff, 4 Com., 173; 3 Kent’s Com., 85; Johnson v. Chapman, 3 Penn. 18; Purdy v. Wolffe, 16 S. & R. 79; Commonwealth v. Evans, 1 Watts 437; Paine v. Fox, 16 Mass. 129; People v. Dunlap, 13 John., 437; Casey, Judge v. Wilman, 9 Mass. 116; Barley v. Butler, 2 Shep. 112; United States v. Hoyt, 1 Blatchley 326; Mussulman v. Commonwealth, 7 Barr, 240; State v. Woodward, 7 Iredell 296; Eagles v. Kern, 5 Whart. 144.

Upon reason and principle, supported by all the authorities on the subject which we have been able to find, we are impelled to hold that plaintiff’s right to maintain this action against the surety on the constable’s official bond is not barred by the prior unsatisfied judgment in trover against the constable. We have found no authority to the contrary.

Plaintiff’s contention that his motion for default and judgment should have been sustained because defendant filed its motion to dismiss the complaint in the office of the clerk of the court instead of presenting it to the court in the first instance is purely technical.

If the defendant believed that the complaint did not state a cause of action, it had the right to make its written motion to dismiss rather than otherwise plead or answer. Its motion was filed within apt time and notice of its filing was served upon plaintiff. The motion to dismiss under the Civil Practice Act takes the place of the demurrer under the old practice and, while strict conformity to the spirit and intention of the rules of procedure now in effect required that such a motion be presented and argued in open court in the first instance, we are constrained to hold that the conduct of defendant in filing its motion with the clerk and thereafter calling it up before the court for disposition, should not deprive it of the benefit of said motion. With defendant’s motion to dismiss the complaint pending and undisposed of, plaintiff’s motion for default and judgment for “the failure of the defendant to plead or answer within the required statutory time” was properly overruled.

For the reasons stated herein the order of the circuit court of April 10, 1936, is affirmed but the judgment order of April 24,1936, is reversed and the cause remanded with directions to deny defendant’s motion to dismiss plaintiff’s complaint and for such further proceedings as are not inconsistent with the views expressed herein.

Affirmed in part, reversed in part and remanded with directions.

Friend and S candan, JJ., concur.


author: Mr. Justice Friend

text:
    E. J. Albrecht Company, Appellant, v. The Fidelity and Casualty Company of New York, Appellee.
    Gen. No. 38,962.
    Opinion filed March 30, 1937.
    Cassels, Potter & Bentley, of Chicago, for appellant ; Barry Gilbert and E. Douglas Schwantes, both of Chicago, of counsel.
    H. L. Howard and William Greene, both of Chicago, for appellee.
   Mr. Justice Friend

delivered the opinion of the court.

Plaintiff brought suit on a public liability insurance policy issued by defendant to recover a sum paid in settlement of a judgment entered against plaintiff, as well as the costs of litigation and attorney’s fees incurred in defending the suit. The court sustained defendant’s motion to dismiss the complaint for failure to state a cause of action, and plaintiff having-elected to stand by its complaint, judgment was entered in favor of defendant. This appeal followed.

The complaint alleges that in the summer of 1932, E. J. Albrecht Company was erecting a bridge over the Desplaines river, near Lyons, Illinois; that in order to protect itself against loss and expense resulting from injuries suffered by persons not in its employ, the Fidelity & Casualty Company of New York, defendant herein, issued a public liability insurance policy covering damages on account of bodily injuries suffered “as the result of an accident,” and agreed as well to defend, in plaintiff’s name “every suit, even if groundless, brought against the assured on account of bodily injury or death covered by this policy”; that August 19, 1932, while the policy was in force, James Spelina, Jr., who was not in plaintiff’s employ, was struck by numerous shot fired from a shotgun by Ernest Sporry, plaintiff’s superintendent then in charge of construction; that Spelina brought suit against plaintiff and Sporry for assault and battery; that defendant was notified of the pending suit but denied liability under the policy and refused to defend, whereupon plaintiff engaged its own counsel, who tried the case; that a judgment was rendered against plaintiff for $12,000, which was affirmed upon appeal on remittitur of $9,000, and ultimately settled for $2,500; that in addition to this sum plaintiff incurred costs, expenses and attorneys’ fees, aggregating $4,421.60, for all of which defendant became liable under its policy.

Under the provisions of the policy defendant agreed “to insure the Assured against loss from the liability imposed by law upon the assured for damages, including damages for loss of services, on account of bodily injuries or death alleged to have been suffered, as the result of an accident occurring while the policy is in force, by any person or persons not employed by the Assured, . . . ” and “to defend, in the name and on behalf of the Assured, every suit, even if groundless, brought against the Assured on account of bodily injury or death covered by this policy, and to pay, irrespective of the limits expressed in the declarations, all expenses incurred by the Company in defending any suit, including all costs taxed against the Assured, the premiums on appeal bonds and release of attachment bonds filed by Assured in such suits, and the interest on that part of any judgment that is not in excess of the applicable limit of this policy.”

The question presented is whether under the allegations of the complaint, Spelina suffered injuries “as the result of an accident.” A consideration of this question, on facts pertinent to those here involved, is embraced in some four of five cases heretofore decided in Illinois, Ohio, Mississippi and Wisconsin. The earliest of these is Briggs Hotel Co. v. Zurich Accident & Liability Ins. Co., 213 Ill. App. 334, decided in 1919. One, Eddy, injured while on the sidewalk adjacent to plaintiff’s premises, brought suit against the Briggs Hotel Company, in an action of trespass, alleging that the hotel company had committed an assault and battery upon him, inflicting injuries. Under the provisions of a policy similar to the one at bar, the insurance company was notified of the suit but it took the position that the injuries were not such as were covered by the policy, and refused to defend. The hotel company thereupon undertook the defense of Eddy’s suit on its own account and expended the amount there in controversy. Later it sued the insurance company for indemnity and recovered the expenses of litigation. The judgment was reversed on appeal, the court holding that Eddy’s suit, alleging a wilful and malicious assault, was clearly not of the character contemplated by the policy, which only indemnified plaintiff against losses “respecting bodily injuries . . . accidentally suffered or alleged to have been suffered,” and that “Eddy’s declaration, filed in his suit against the Hotel Company, negatives the accidental nature of such injuries by asserting that they were inflicted willfully and maliciously. ’ ’

Next followed the case of Commonwealth Casualty Co. v. Headers, 118 Ohio St. 429 (decided in 1928). The Supreme Court of Ohio, under similar circumstances, held that an insurance company, which had issued a public liability policy to Headers, who operated an auto livery, was not obliged to defend an action brought by one Malacek against Headers for injuries resulting from an assault and battery committed on Malacek by one of Headers’ drivers. Characterizing the injury as “a clear case of assault and battery, willfully and intentionally inflicted,” the court said it had no difficulty in reaching the conclusion that the damages sustained were not covered by the policy, which indemnified plaintiff only against “accidental” injuries. The basis for the decision and the reasoning of the court in reaching its conclusion, may be found in the following excerpts from the opinion (pp. 432, 433):

‘ ‘ The policy covers accidental injuries, and the term ‘accidental’ in this policy must be interpreted in the same manner as that term would be interpreted in any ordinary accident policy; that is to say, an injury or death does not occur by accident when it results from willful, intentional, personal violence inflicted by another. The situation is not strengthened any in behalf of the defendant in error by reasoning that anything is an accident that is out of the ordinary and unexpected. There is no doubt that this assault and battery was wholly unexpected, and was quite out of the ordinary, but that does not constitute it an accident. . . . Surely no one would claim that a party holding an ordinary accident insurance policy covering all forms of external accidental injuries could recover under such a policy damages sustained by reason of a willful and intentional injury inflicted by another. That kind of an injury would afford no better ground for a recovery than would an injury self-inflicted. ’ ’

In Georgia Casualty Co. v. Alden Mills, 156 Miss. 853 (decided in 1930), the court, upon similar facts, reached a different conclusion. From the stipulated facts it appears that the foreman of Alden Mills, and another employee, committed an unprovoked assault on Joseph Pendergraft, who brought suit against AÍ-den Mills for the injuries inflicted, charging assault and battery. The casualty company, which had issued a public liability policy, refused to defend the suit, contending that the injuries were not covered by the terms of the policy. The sole question presented was whether the injuries suffered by Pendergraft were “accidental” under the provisions of the policy. In discussing the casualty company’s liability the court said (p. 861):

“The question, therefore, is whether a person who has been assaulted and injured by another, without any provocation on his part, has suffered an accidental injury. There is a diversity of opinion on this question among the courts, but the great weight of authority, and we think the better reasoned cases, holds that injuries sustained by a person while defending himself from an unprovoked assault are within the terms of a policy insuring him against injury accidentally inflicted — that an injury inflicted on one who did not voluntarily enter into the affray in which he was injured is an accident.” (Citing Fidelity & Casualty Co. v. Johnson, 72 Miss. 333, Stephens v. Railway Officials’ & Employees’ Acc. Ass’n, 75 Miss. 84; Hutson v. Continental Casualty Co., 142 Miss. 388; Holmes v. American Ins. Co., 142 Miss. 636; Provident Life & Accident Ins. Co. v. McWilliams, 146 Miss. 298; Great Southern Life Ins. Co. v. Campbell, 148 Miss. 173.)

In reaching this conclusion the court adopted the reasoning that whether an injury is accidental is to be determined from the standpoint of the person injured, and “if the injury comes to him through external force, not of his choice or provocation, then as to him the injury is accidental.” In answer to the contention of the casualty company that if the policy in question covered Pendergraft’s injury it was void, because its effect would be to furnish a motive to insured to violate the law, the court pointed out that Alden Mills did not itself commit the unlawful act upon Pendergraft, although it was responsible therefor under the doctrine of respondeat superior, and that since the policy was valid on its face and did not expressly undertake to indemnify Alden Mills against its own unlawful acts, it could not be invalid because its effect was to indemnify insured against the consequences of the illegal or criminal acts of others, without participation on the part of insured. Taxicab Motor Co. v. Pacific Coast Cas. Co. of San Francisco, 73 Wash. 631, holding that “one may lawfully insure another against the consequences of such acts [illegal acts] committed by servants and employees, if such acts are not directed by, or participated in, by the insured,” was cited to support this conclusion. “If this were not so,” said the Washington court, “bonds taken to insure against the misappropriation or embezzlement of funds by employees generally would be void. ’ ’

Within the year following the decision in the Alden Mills case the same question came before the court in Robinson v. United States Fidelity & Guaranty Co., 159 Miss. 14, and it was urged that the court had not given due consideration to the cases of Briggs Hotel Co. v. Zurich Accident & Liability Ins. Co. and Commonwealth Casualty Co. v. Headers, supra. However, the court adhered to the position it had taken, stating that these cases were considered and treated as holding contrary to the doctrine announced in the Alden Mills case, but that in the opinion of the court the conclusions reached in its former opinion were in accord with reason and authority, and should be adhered to.

The precise question recently arose in Fox Wisconsin Corp. v. Century Indemnity Co., 219 Wis. 549 (1935). The complaint in that case alleged that one, Earl Ferguson, while rightfully in plaintiff’s theatre, was assaulted by an employee and injured; that when suit was instituted by Ferguson against the theatre, the insurance company refused to defend under the provisions of a policy providing for indemnity for injuries accidentally sustained, whereupon plaintiff answered the complaint and defended the suit, with the result that Ferguson was awarded $300 damages and costs of suit, which plaintiff paid. The indemnity company demurred to the complaint on the ground that it did not state a cause of action. The trial court sustained the demurrer, but on appeal the order was reversed and the cause was remanded. In discussing the terms of the policy, as to whether or not the damages sustained by Ferguson were accidental, the court said (p. 551):

“WFether or not an injury is accidental under the terms used in the policy here involved is to be determined from the standpoint of the person injured. The meaning that must be accepted is that attributed to practically identical words used in a policy described in Button v. American Mut. Accident Ass’n, 92 Wis. 83. The facts show that the injury to the patron came to Mm through force not of Ms own provocation. From Ms standpoint, then, the injuries were ‘accidentally sustained. ’ (Washington Theatre Co. v. Hartford Acc. & Indem. Co., 9 N. J. Misc. 1212.) In the absence of some provision in the policy AvMch excludes liability for such injuries, the meaning of ‘accidentally sustained’ becomes plain and controlling. Damage having resulted because of bodily injuries sustained by a patron of the theatre because of the care, maintenance or use of the theatre, it becomes a liability of the insurer under its contract. The patron, whose injury gave rise to the liability, was assaulted, and, in a sense, the act was unlawful and intentional; still, considered objectively, it occurred without the agency of the patron, and, so far as these particular parties are concerned, the act may be, and legally is to be, termed accidental.” (Citing Georgia Cas. Co. v. Alden Mills, 156 Miss. 853.)

Adopting and amplifying the reasomng of the Alden Mills case, the court continued as follows (pp. 551, 552):

“The appellant is subject to the liability for damages floAving from the tortious conduct of its employee. This liability is imposed upon assured by law under the rule of respondeat superior. Although the appellant may be held liable for such tort, it cannot be said that it committed the assault, nor that it authorized it. Thus the appellant has not placed itself outside the terms of the policy, and we find no limitation or qualification under wMch the respondent can escape its liability to the appellant. Respondent agreed to indemMfy appellant for loss by reason of liability resulting from bodily injuries accidentally sustained by a patron in appellant’s theatre. We do not consider it necessary to enlarge upon the significance of the terms of the policy. We hold that the liability here imposed by law upon appellant for the act of its servant arises out of the operation of the business just as directly as if some appliance used in connection therewith had failed to function properly, and the patron had been injured because of such failure. ’ ’

The Mississippi and Wisconsin cases are based on the theory that both from the standpoint of the employer, as well as the victim of the assault, the occurrence was an accident. They hold that the employer was in no sense the perpetrator of the assault and therefore can be held liable only under the doctrine of respondeat superior; that as to the victim of the assault, if it was unprovoked and he was not the aggressor, the occurrence was not the natural and probable consequence of his conduct, and was therefore accidental. Since the decision in the Briggs case, courts in Illinois and other States have consistently held that the insured under an accident policy may recover for injuries or death resulting from an unprovoked assault committed upon him, where he was not the aggressor. In Fidelity & Casualty Co. v. Johnson, 72 Miss. 233, the assured was hanged by a mob. In a suit brought on an accident policy, insuring him against “bodily injuries sustained through external, violent and accidental means,” it was contended by the insurance company that the hanging was intentional, but the court held against the contention, saying:

“In these and all like cases in which death occurs by violent means, external to the man, and against or without intention or concurrence of will on the part of the man, death may probably be called an accident. . . . ‘An injury may be said objectively to be accidental, though subjectively it is not; and, if it occurs without the agency of the insured, it may logically be termed accidental, though it was brought about designedly by another person.’ . . . There is, upon authority, hardly room for .controversy as to the rightfulness of the action of the court below in refusing to charge the jury that death by hanging at the hands of a mob was not an accident. ’ ’

In Nalty v. Federal Casualty Co., 245 Ill. App. 180, a policeman, in the course of his duty, stopped two suspicious looking characters and they shot and killed him. When suit was brought on an accident insurance policy the casualty company contended that his death was not the result of accidental means within the meaning of the policy, but the court held that the shooting was not a result to be expected by deceased and that viewed from the standpoint of the deceased it was accidental. A similar conclusion was reached in Williams v. Prudential Ins. Co., 271 Ill. App. 532, where an insane person provoked a policeman to shoot him, and it was held that his death was accidental because he was legally irresponsible for his conduct.

In Ziolkowski v. Continental Cas. Co., 270 Ill. App. 286, which came to this branch of the Appellate Court several times on appeal, the principal question involved was whether recovery could be had for the fatal stabbing of insured under an accident insurance policy, and a judgment permitting recovery by plaintiff was ultimately affirmed. (284 Ill. App. 505. Appellate Court affirmed by the Supreme Court of Illinois at the February, 1937, term.) In addition to the foregoing decisions, and others cited by plaintiff, we find it to. be the general rule under the workmen’s compensation laws of the various States that an injury resulting from a wilful assault on an employee does not prevent the injury from being “accidental” within the meaning of the various statutes. (72 A. L. R. 110 and numerous cases therein cited.)

In Commonwealth Casualty Co. v. Headers, supra, the Ohio court evidently supported its conclusion that the injuries suffered by Malacek as the result of an assault and battery, wilfully and intentionally inflicted, were not accidental upon the theory that “a party holding an ordinary accident policy covering all forms of external, accidental injuries could not recover under such a policy damages sustained by reason of a willful and intentional injury inflicted by another. That kind of an injury would afford no better ground for a recovery than would an injury self-inflicted.” Whether or not that is the law of Ohio we are not required to determine, but under the decisions in this State and other jurisdictions the general rule that a person wilfully assaulted may recover under an accident insurance policy where he is not the aggressor, is well established. If Spelina, assaulted by plaintiff’s foreman, had carried an accident policy, he would have been entitled, under the rule in this State, to recover for the injuries suffered, on the theory that they were “accidental.”.

The consequences that may result from the rule and reasoning employed in the Headers case are shown by a subsequent decision of the Court of Appeals of Ohio, in American Casualty Co. v. Brinsky, 51 Ohio App. 298, 200 N. E. 654, opinion filed in 1934. Brinsky brought suit against Max Meyer, and others, for damages resulting from a collision between Brinsley’s truck and one driven by defendants ’ agent. He charged willful and wanton conduct. Upon trial the court found the issues in favor of plaintiff and specifically held that defendants were guilty of “willful and wanton conduct.” Defendants carried liability insurance with the American Casualty Company, qualified to do business in Ohio, and the casualty company’s attorneys used the Headers case as authority for the contention that the ordinary public liability policy did not cover a case where the injured person in an automobile accident received his injuries as the result of willful and wanton conduct. The insurance company’s contention was sustained, and recovery was denied assured. If a like doctrine were to be adopted in Illinois, it might seriously affect the rights of automobile owners in this State carrying liability insurance under the so-called Illinois “guest law,” which requires a guest passenger to allege and prove that his injuries were incurred as the result of wilful and wanton conduct on the part of the owner or driver.

Defendant argues that the facts found in Spelina v. Sporry, 279 Ill. App. 376, indicated that Spelina, when shot by plaintiff’s superintendent, was in the act of taking away a plank, and therefore the assault upon him by Sporry was not unprovoked. The question in the case at bar is whether the complaint stated a good cause of action, and that question is to be determined from the allegations of the instrument. But even if we were to go outside the record we should be obliged to hold, as we did in Spelina v. Sporry, supra, that the assault by shooting in that case was unprovoked, unwarranted and actionable.

After a careful consideration of all the authorities, we have reached the conclusion that the Alden Mills and Fox-Wisconsin Corporation cases, supra, are in accord with reason and the greater weight of authority, and that the losses and expenses incurred by plaintiff in this case come within the provisions of the policy herein. It follows that the order of the circuit court dismissing the complaint and entering judgment in favor of defendant was erroneous. The order will therefore be reversed and the cause remanded for further proceeding’s not inconsistent with the views herein expressed.

jReversed and remanded.

John J. Sullivan, P. J., and Scanlan, J., concur.


text:
    Mary Sommerio, Appellant, v. Prudential Insurance Company of America, Appellee.
    Gen. No. 39,037.
    Opinion filed March 30, 1937.
    Golan & Golan, of Chicago, for appellant; Samuel L. Golan and A. Lawrence Hoffman, of Chicag'o, of counsel.

      Hoyne, O’Connor & Rubinkam, of Chicago, for appellee ; Nathaniel Rubinkam and Willliam S. Allen, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Plaintiff brought suit in the municipal court to recover $2,000 upon a receipt given her deceased husband, pursuant to an application for life insurance, no policy having issued. The case was tried by the court without a jury, resulting in findings and judgment against plaintiff, and this appeal followed.

The essential facts disclose that April 20, 1930, Joseph Ditore, defendant’s agent, took an application for intermediate monthly life insurance, which required no medical examination, from Thomas Som-' merio. At the same time Sommerio paid Ditore the first monthly premium of $3.26, and received in return the following receipt:

“It is understood that if this payment is equal to the full first monthly premium on said policy (but not otherwise), the insurance shall take effect from the date of the application, in accordance with the provisions of the policy applied for, provided said application is approved and accepted at the Home Office of the Company, in Newark, N. J., under the plan, for the ' premium paid and amount of insurance applied for and provided the life proposed was in sound health on the date of the application. It is further agreed that said Company will return the amount mentioned hereon if it declines to grant a policy on the above life.” (Italics ours.)

Ditore severed his connection with defendant shortly after the application was taken. Upon the hearing of the cause he and plaintiff both testified that when the premium was paid by Sommerio, and the receipt given, Ditore assured the applicant that the policy would be effective as of that date. The application was forwarded to the home office in Newark, New Jersey, where a question arose as to the correctness of some of the answers made in the application, and after considerable delay Lloyd T. Mickle, an assistant superintendent, called on the Sommerios and on May 9,1930, procured a second application, giving a receipt for the original. Sommerio died June 3, 1930. Upon refusal of the company to pay the amount of the insurance applied for, suit was instituted.

The question presented is whether plaintiff can recover on her husband’s application and the receipt given him, the policy never having been issued. In LaBarre v. Prudential Ins. Co. of America, 284 Ill. App. 653 (Abst.), 2 N. E. (2d) 354, we held under similar circumstances that recovery could not be had on a receipt and application identical to the receipt and application here in question, where the application was not approved in accordance with the provisions of the receipt, and plaintiff’s decedent died before the policy issued. There was evidence in that case tending to prove that the policy was rejected and that one of the defendant’s agents had on several occasions called to so advise the decedent but was unable to find him. It was plaintiff’s contention that because the agent had accepted the initial premium and defendant had elected to retain same until after decedent’s death, that it was bound to pay the amount of the policy, but we held that the record supported the contention that the policy was not approved, as required under the provisions of the receipt given deceased, and therefore no contractual relationship was created which would obligate the defendant to pay the amount claimed.

In the ease at bar the policy was neither approved nor rejected, and plaintiff takes the position that the provision in the receipt making the insurance effective from the date of the application, “provided said application is approved and accepted at the home office of the Company at Newark, N. J.” was waived by defendant through the representation of its agent, Di-tore, who assured the applicant that the policy would be effective as of the date the application was made. This contention raises two questions: (1) Did Ditore have authority to waive the provisions of the receipt, and (2) was it competent for plaintiff to prove Ditore’s authority as agent by his own testimony?

Ditore testified that he was an “insurance salesman,” and also occupied the position of assistant superintendent in one of the offices of the Prudential Insurance Company in Chicago; that as such he had some four or five salesmen under his charge, and that it was his duty to see that they were doing their work properly and selecting acceptable risks. It appears from the uncontroverted evidence that Ernest M. Berger was the superintendent in charge of the office, and that there were several assistant superintendents, including Mickle and Ditore. Berger, who had been in charge of the Chicago office for some twenty-seven years, testified that an assistant superintendent has no power to waive the conditions in the receipt; that Ditore and other agents had so-called instruction books issued to them, which defined their duties and powers, and that the waiver of conditions in the receipt was not included in the authority given Ditore or other agents; that the assistant superintendent merely looked over the accounts of the agents who were working under him, wrote business for them, and supervised their activities. Defendant produced other evidence to the same effect.

The only evidence adduced by plaintiff to show Ditore’s authority was his own testimony, but it has been consistently held by authorities in this and other States that the power of an agent can be proved only by tracing it to the source of his alleged authority, i. e., his principal (Dodson v. Loaleen Mut. Benefit Ass’n, 247 Ill. App. 283; Merchants Nat. Bank v. Nichols & Shepard Co., 223 Ill. 41), and that an agency cannot be shown merely by the statements and declarations of the alleged and supposed agent. (Patton v. Young, 233 Ill. App. 515.) Plaintiff concedes this to be the rule, but states in her reply brief that defendant did not specifically object to Ditore’s testimony. An examination of the record rebuts this assertion, because it appears, not only from the supplemental abstract of record filed by defendant but from a careful reading of the record itself, that defendant’s counsel objected to substantially all the questions directed to Ditore relating to his authority.

As applicable to the question of proving agency, plaintiff further contends that it may be shown by the agent’s own testimony that such a course of conduct or dealings was pursued, as will justify the presumption of his authority to act and bind his principal. It is argued that Ditore had authority to take applications, collect the premiums, forward the applications to the home office, and deliver the policies when issued, and that this constituted him a general agent. It is known from common experience that all solicitors of insurance, no matter how limited their authority may be, are authorized to accept an application and the payment of the initial premium, and to forward same to the proper office, and, when the policy is issued, to deliver it to insured, but this does not constitute them general agents if their authority is in fact otherwise limited, and in order to show that a solicitor has broader powers, or the powers of a general agent, it is incumbent upon the party so contending to show, by competent evidence other than the testimony of the agent himself, the specific authority claimed.

Plaintiff in her brief and reply brief, and on oral argument, relied principally on Nieman v. Security Benefit Ass’n, 350 Ill. 308, and Massachusetts Mut. Life Ins. Co. v. Sexton, 255 Ky. 309. In the Nieman case the district manager of the defendant company, in the presence of its medical examiner, asked the applicant certain questions, the answers to which the medical examiner wrote in the application. To questions whether she had ever been an inmate of an asylum, sanitarium or hospital, or whether she had consulted a physician in the last five years or been rejected by another insurance company, she gave affirmative replies. The district manager, however, wrote negative answers to all of these questions in the application, which was then signed. The by-laws of the company, a mutual benefit society, required delivery of the certificate and its signature by the applicant while the applicant was in good health, and forbade the waiver of conditions of its policies by its agents. A certificate of insurance was issued and the premium paid. Shortly thereafter the applicant died and the beneficiary sued on the certificate. The court, in the course of its opinion, said that ‘ ‘ a general agent, clothed with power to solicit insurance, receive the application and forward it to the company, receive and deliver the policy and collect the premium, has power to waive a condition of the policy notwithstanding that power is negatived by provisions in the policy and his contract of employment.” It appears from the opinion that the district manager at the time he delivered the certificate knew the applicant was not in good health, and the court said there was ample proof in the record that the condition of the policy that it should not go into effect until it was delivered to and signed by insured while in good health ‘ ‘was waived by appellant. ’ ’ The elements of fraud by the company’s agent and his knowledge as to the physical condition of the assured are emphasized in the opinion, and, when considered together with the fact that the district manager took the application, distinguishes the decision from the case at bar.

In Massachusetts Mut. Life Ins. Co. v. Sexton, supra, an action was brought upon a life insurance policy by the legal representative of insured, who was killed a day or two after application was made but before delivery of the policy and before payment of the first premium. The court held that a general agent of a life insurance company, notwithstanding contrary provisions in the application, is authorized to agree that the insurance was to go into immediate effect, and with reference to the failure of the applicant to pay the initial premium, which had been waived by defendant’s general agent, it was said that “manifestly, if a policy provision may be altered or waived by the general agent, there is no reason why a similar provision (payment of premium) in the application may not be altered or waived.” Plaintiff’s counsel asserts that the Kentucky case is “on all fours” with the case at bar, but there, again, the uncontroverted evidence showed that the general agent had taken the application, and there was no question as to his authority. In this proceeding Ditore’s authority was sharply contested, and there is no contention that he was general agent and no competent evidence that he had authority to waive conditions in the receipt.

We find in defendant’s brief numerous decisions holding that evidence of an insurance agent’s power to take applications, collect the premiums, forward the applications to the company for its acceptance or rejection, and deliver the policies when issued to the applicants, does not show authority on the part of such agent to make contracts of insurance. It was so held in Patterson v. Prudential Ins. Co. of America, 23 S. W. (2d) 198 (St. Louis Court of Appeals, Mo.), a case where Edward Young signed the application and paid the first premium, for which a receipt was issued identical in form to that in the case at bar. One Henry Fritz was an assistant superintendent of the insurance company in its St. Louis office. He solicited the insurance and it was claimed that he promised plaintiff that her son, Edward Young, was immediately insured. Young was killed a week later in an automobile accident, and no policy was ever delivered to plaintiff, but the evidence indicated that the application had been approved and the policy Would have issued had the accident not occurred. In reversing a judgment for plaintiff, entered pursuant to the verdict of a jury, the court said that it knew of no exception to the rule that evidence of an insurance agent’s power to write applications, collect and forward applications and deliver policies, does not show his authority to make contracts, and that “looking to the four corners of the receipt, . . . we cannot avoid the conclusion that it was not an unqualified acceptance on the company’s part, ...”

A similar conclusion was reached in Field v. Missouri Life Ins. Co., 77 Utah 45, 290 Pac. 979, where under a similar form of receipt and payment of a premium it was held that oral representations as to when the policy should take effect, made contemporaneously with the execution of the application, were merged in the written instrument and cannot be relied on as against the express terms of the receipt. Other cases so holding are Miller v. Illinois Life Ins. Co., 255 Ill. App. 586; Braman v. Mutual Life Ins. Co., 73 F. (2d) 391, and Jacobs v. New York, Life Ins. Co., 71 Miss. 656, 658, 15 So. 639.

After carefully considering the facts and the arguments advanced by counsel, we have reached the conclusion that no competent showing of Ditore’s authority was made by plaintiff to justify the contention that he had power to waive the provisions of the receipt. The record rather supports the conclusion that as assistant superintendent his powers were limited and that he was under the direct authority of Mr. Berger, who had charge of the office. In the cases relied on by plaintiff the applications were taken by a general agent, as to whose authority there was no issue or controversy. That presents a different question. In order to recover upon an application where it is claimed that the approval of the policy was waived by the agent, a clear showing should be made that the agent had authority to waive provisions of the receipt, and, in the absence of such showing, oral conversations had contemporaneously with the signing of the application should not be given effect as against the express written provisions of the receipt stating otherwise.

For the reasons stated the judgment of the municipal court should be affirmed, and it is so ordered.

Judgment affirmed.

John J. Sullivan, P. J., and Soanlan, J., concur.