text:
    Wilson Garment Manufacturing Company, Inc. for use of Hardware Mutual Casualty Company, Appellee, v. Thomas S. Edmonds and Henry Russell Platt, Jr., Trustees of 237 South Market Street Building, Appellants.
    Gen. No. 41,498.

      Heard in the second division of this court for the first district at the October term, 1940.
    Opinion filed December 30, 1941.
    Angerstein & Angerstein, of Chicago, for appellants; Thomas C. Angerstein, George W. Angerstein, Charles Wolff and Marion J. Hannigan, all of Chicago, of counsel.
    Licalzi & Silverman, of Chicago, for appellee; Laurence A. Licalzi, Norman R. Silverman and Joseph B. Higgs, of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Plaintiff sued in tort, under the first paragraph of section 29 of the Workmen’s Compensation Act, to recover $350 paid to one of its employees as a lump sum settlement for injuries sustained by him in the elevator of a building maintained and operated by defendants as trustees, in which plaintiff was a lessee. Pursuant to trial by the court without a jury, judgment was. entered against defendants for $350 and costs, and they seek by this appeal to reverse that judgment.

The essential facts disclose that defendants as trustees maintained and operated a seven-story building at 237 South Market street, Chicago, wherein plaintiff, Wilson Garment Manufacturing Company, occupied space on the sixth floor as lessee and conducted its business of manufacturing ladies’ wearing apparel. Both plaintiff and defendants as trustees were subject to the terms and provisions of the Workmen’s Compensation Act of this State. Abe Sirota was employed by plaintiff as a sewing machine operator. His hours of employment were from 8:30 in the morning to 4:30 in the afternoon. February 22, 1939, after concluding his work, Sirota, while descending in the elevator with other passengers, was injured through the negligence of defendants’ servant. He was driven home by a friend, called his own doctor and did not return to work until about July 4, 1939. The morning following the accident Sirota reported his injuries to his employer and on the same day an investigator from the Hardware Mutual Casualty Company, which carried plaintiff’s insurance, called to see him. Nothing was said about compensation but, when asked whether he wanted medical attention, he told the investigator that he preferred his own doctor.

Subsequently Sirota made a claim against the owners of the building and June 27, 1939, effected a settlement for $350, releasing the owners from all liability for his injuries. Up to that time he had not been paid any compensation by his employer. After making a settlement with the owners of the building and receiving the aforesaid amount, Sirota lodged a claim against plaintiff for compensation under the act and shortly thereafter a settlement contract was entered into between plaintiff and Sirota, wherein it was agreed that plaintiff, as his employer, would pay him $350. This settlement agreement, together with a lump sum petition, was approved by the Industrial Commission on September 12, 1939, and the following day plaintiff paid the amount of the settlement through its insurance carrier, the Hardware Mutual Casualty Company. Plaintiff then brought this suit against defendants under section 29 of the Workmen’s Compensation Act to recover the amount paid Sirota pursuant to the settlement agreement. Its suit is predicated on the theory that, since both plaintiff and defendants were at the time operating under and subject to the Workmen’s Compensation Act, the injured employee had no right to recover for his injuries under sec. 29 except through his employer; that when his claim for compensation was filed with the Industrial Commission and settlement thereof approved by the commission and paid, plaintiff became entitled to recover from defendants, notwithstanding the fact that they had previously settled with the injured employee and obtained a release from him.

The first paragraph of section 29 of the Workmen’s Compensation Act of Illinois, upon which suit is predicted (Ill. Rev. Stat. 1939, ch. 48, par. 166, sec. 29, p. 1585 [Jones Ill. Stats. Ann. 143.44]) provides: “166. Injury caused under circumstances creating a legal liability in some person other than the employer —Liability.) § 29. Where an injury or death for which compensation is payable by the employer under this Act was not proximately caused by the negligence of the employer or his employees, and was caused under circumstances creating a legal liability for damages in some person other than the employer to pay damages, such other person having also elected to be bound by this Act, or being bound thereby under section three (3) of this Act, then the right of the employee or personal representative to recover against such other person shall be transferred to his employer and such employer may bring legal proceedings against such other person to recover the damages sustained, in an amount not exceeding the aggregate amount of compensation payable under this Act, by reason of the injury or death of such employee.”

Defendants’ contentions are set forth at length in their motion to dismiss plaintiff’s statement of claim, which was overruled by the court, and in their affidavit of merits thereafter filed. They take the position that their payment of $350 to Sirota in settlement of his claim against them, because of injuries suffered in the elevator of the building for which they were trustees, is a bar to plaintiff’s action; that the personal injuries sustained by Sirota did not arise out of and in the course of his employment with plaintiff; that the settlement agreement entered into by plaintiff with Sirota and approved by the commission was not a finding for any compensation due him and did not constitute a fixing* or determination of the amount of compensation under the terms of the act, but was merely a compromise of a disputed claim entered into-for the purpose of avoiding* litigation; and, therefore, they say that the first paragraph of sec. 29 of the act is not applicable to the circumstances of this case.

In interpreting the first part of section 29 of the Workmen’s Compensation Act, the courts of this State have consistently held that where all parties are subject to the act, the common-law right of action of an employee against his employer or against any other person than his employer who is bound by the act, for negligently injuring him in the course of his employment, is abolished. O’Brien v. Chicago City Ry. Co., 305 Ill. 244; Havana Nat. Bank for use of Hartford Accident & Indemnity Co. v. Tazewell Club, 298 Ill, App. 393; Joseph Schlitz Brewing Co. v. Chicago Rys. Co., 307 Ill. 322. From the pleading’s in this case it must be conceded that both plaintiff and defendants were subject to the act, and that Sirota’s injuries were accidental. The other principal factor necessary to bring the parties within the act is the requirement that the employee must have been injured in the course of his employment. The reasons assigned and the considerations forming the basis of the settlement contract entered into between plaintiff and Sirota, and approved by the Industrial Commission as set forth in the agreement, include the denial by plaintiff that Sirota’s injuries arose out of and in the course of his employment, and it is said that “to avoid prolonged litigation, respondent [plaintiff] agrees to pay and petitioner [Sirota] agrees to accept the sum of $350 in a lump sum, in full of any and all claims . . . . ” It would thus appear that after Sirota filed his claim against plaintiff before the Industrial Commission, the employer took the position that Sirota’s injuries did not arise out of the course of his employment, and it may well be that defendants, in settling with Sirota, entertained the same views. Nevertheless, these considerations cannot be taken as decisive in determining whether Sirota’s injuries actually arose out of the course of his employment, so as to make the first paragraph of sec. 29 inapplicable to this case; that question must be resolved from the admitted facts pertaining to Sirota’s injuries, and the decisions of our courts construing the act under similar circumstances.

In Schafer v. Industrial Commission, 343 Ill. 573, the employer, a building contractor, was engaged in making certain improvements at the Dixon State Hospital. One of his employees who had finished work for the day proceeded to drive home in his own automobile, and, while the car was still on the hospital grounds and crossing a railroad track, it was struck by a passenger train and the employee was killed. The premises upon which the accident occurred did not belong to Ms employer but to the Dixon State Hospital and the question raised was whether his death arose out of and in the course of Ms employment. In discussing this question the court said: “The general rule followed in construing the Workmen’s Compensation act is that a person’s employe ment does not begin until he reaches the place where he is to work and that it does not continue after he has left that place. (Citing cases.) If, however, the employee is injured on the premises of the employer in going to or from the scene of his duties by a customary or permitted route within a reasonable time before or after work, the injury arises out of and in the course of the employment within the meaning of the Workmen’s Compensation act, and the employee or his beneficiary in the event of his death, is entitled to compensation for the injury. (Wabash Railway Co. v. Industrial Com., 294 Ill. 119; Western Coal Co. v. Industrial Com., 296 id. 408; Porter Co. v. Industrial Com., 301 id. 76; Crane Co. v. Industrial Com., 306 id. 56; Indian Hill Club v. Industrial Com., 309 id. 271; Schweiss v. Industrial Com., supra [292 id. 90].) . . .

■ “In the present case the nature and place of Trumble’s [employee] employment contemplated the necessity for entrance to and exit from the hospital grounds. The private road through these grounds afforded a vehicle the only way or means of access to the barn under construction from the public highway. The use of the private road for entrance and exit by automobiles at appropriate times was incidental to Trumble’s employment. The arbitrator, the Industrial Commission and the circuit court were justified in finding that the accidental injury which resulted in Trumble’s death arose out of and in the course of his employment.”

In Hoffman v. Knisely Brothers, 199 Ill. App. 530, plaintiff was employed by defendant and paid on an hourly basis. He was doing sheet metal work on the roof of a building in the course of construction, access to which was had from the floors of the building by means of a stairway. Hoffman worked until noon on the day in question, and, upon his return from lunch, found that there was not enough work for all the men on the job for that day and advised his foreman that he was going to the shop and if there was no work there that he was going home. He proceeded to descend the stairway and on the way down fell over an open side of the stairway to the floor below and died as a result of injury received. The employer contended that these facts did not present a case indicating that Hoffman’s injury arose out of and in the course of his employment, but the court held otherwise and said: “In that [employer’s contention] we do not concur. The leaving of the premises where he was employed was so closely connected with his employment as to render it a necessary incident thereof. As said in Terlecki v. Strauss, 85 N. J. L. 454 (4 N. C. C. A. 584): ‘It is a necessary implication of the contract that the workman shall come to his work and shall leave with reasonable speed when the work is over.’ In that case the employee suffered an accident while combing her hair in preparation to go home. The court said that while the employment was not the proximate cause of the accident ‘it was a cause in the sense that, but for the employment, the accident would not have happened,’ and held that the accident arose out of and in the course of the employment. It further said that it would be too narrow a construction to limit the benefit of the statute to the time the workman is actually employed. There can be little doubt that on authority the relation of master and servant could be deemed to have existed while the workman was getting out of the building where he had to go in his employment.”

The case of Crane Co. v. Industrial Commission, 306 Ill. 56, supports the views expressed in the foregoing decisions. It was there said: “This court has said after a somewhat exhaustive review of the decisions, that the great weight of authority appears to be that if the injured employee was on the premises of the employer in going from his work, leaving within a reasonable time and following the customary route off the premises, the accident will be held to arise out of the employment.”

We think the circumstances of the case at bar present the elements necessary to bring the employee within the general rule. Sirota, on the day in question, left plaintiff’s shop immediately following the end of his day’s work and followed the customary route for leaving the premises. The fact that his employer was not the sole tenant of the building and that other tenants and the public generally had a right to use the elevator is not of controlling importance. The essential fact is that Sirota had the right to use the elevator and that it was the only reasonable means provided for coming to and going from his work. We are therefore of opinion that, regardless of the provisions of the settlement agreement, the facts clearly indicate that the injuries to Sirota arose out of and in the course of his employment and that he was entitled to claim compensation therefor. The fact that it was a disputed claim does not alter the facts disclosed by the record; nor is it of controlling importance that the parties settled the disputed claim for the purpose of avoiding litigation. In all the decisions that we have had occasion to examine, the courts considered the facts and circumstances in each case to determine whether the injury was compensable under the act and the general trend of the decisions, as indicated in Scholl v. Industrial Commission, 366 Ill. 588, is that “the Workmen’s Compensation act should receive a liberal construction.”

It is urged, however, that payment of a lump sum settlement with approval of the commission is not a finding or determination of the amount of compensation legally payable under the act, where the settlement contract shows on its face that it was a compromise of a disputed claim made for the purpose of avoiding litigation. Counsel for defendants argue that not only must compensation be legally payable to the injured employee so as to entitle his employer to recover against a negligent third party, but, in addition thereto, the amount of compensation payable must be fixed and determined; and they say that in the instant case there was no finding, award or determination by the commission of the amount of compensation due Sirota under the terms of the act but only the approval of a compromise settlement between the parties growing out of a disputed claim. If our conclusion is correct that this accident was compensable under the act because it was accidental and arose out of the course of Sirota’s employment, the terms of the settlement agreement are of secondary importance. If Sirota was entitled to receive compensation for his injuries, any contrary views entertained by the parties or reasons assigned by them for compromising their differences should not militate against plaintiff’s right to recover under the act.

Lastly, it is urged that the court erred in fixing plaintiff’s damages at $350, the amount paid by plaintiff to Sirota under the terms of the settlement agreement. Defendants’ counsel argue that the measure of damages in an action under the first paragraph of section 29 of the Workmen’s Compensation Act is not the amount of compensation paid or payable by plaintiff employer but is the damages suffered by him, and that the amount recoverable shall not exceed the aggregate amount of compensation payable under the act; that proof of the amount of compensation paid by plaintiff does not fix the amount of damages but merely fixes the aggregate or maximum amount that may be recovered and the court, in case of trial without a jury, should fix the amount of damages to be recovered within the aggregate or maximum amount; and that it was, therefore, error for the court to enter judgment for the exact amount of compensation paid when there is no evidence in the case showing the actual amount of damages sustained by Sirota. Defendants take the terms of the settlement contract as accurate and from that conclude that Sirota’s average earnings were $18 a week, notwithstanding his testimony that his average weekly earnings were never less than $38. Then computing his loss on the basis of what Sirota would be entitled to under the Workmen’s Compensation Act, namely, $9 a week for nineteen weeks, they say that the aggregate amount recoverable was $171; or in the alternative, if Sirota’s testimony be taken as correct, the rate of compensation would be $15 a week, the maximum rate provided by the act, or an aggregate for the nineteen week period of $285. The determination of the measure of damages depends upon the construction of the first paragraph of sec. 29. This section was fully discussed in Joseph Schlitz Brewing Co. v. Chicago Rys. Co., 307 Ill. 322, wherein the employer filed suit under the first paragraph of sec. 29 to recover from a third party for an injury to one of its employees after the employer had become liable to pay compensation. In that case all the parties, as here, were subject to the act. The court held that sec. 29, which provides that the employer shall be subrogated to the right of action which the employee has against a third party causing the injury, merely transfers to the employer the same cause of action which the statute takes from the employee and does not create a new cause of action in the employer. In discussing the amount of damages which the employer is authorized to sue for and recover the court said: “The damage he [employer] is authorized to sue for and recover is the damage sustained by the employee, not exceeding the aggregate amount of compensation payable by the employer under the act.” The common-law right of an employee was abolished when the act became effective. O’Brien v. Chicago City Ry. Co., 305 Ill. 244. If, as held in the Joseph Schlits Brewing Co. case, supra, sec. 29 merely transfers to the employer the same canse of action which the statute takes from the employee and does not create a new cause of action in the employer, the inquiry arises as to what cause of action the employer acquires under the act. Under the common law the employee could have sued for and recovered all damage sustained by him for his injury and the only limitation for recovery by the employer under the act is that it shall not exceed the aggregate amount of compensation payable by the employer under the act. It therefore seems to us that if sec. 29 simply transfers to the employer the right of action taken from the employee, the employer would be entitled to recover the same elements of damages against defendants as the employee could have recovered at common law. This would include not only loss of time but also his medical bills and other expenses incurred. Taking the lesser figure of $18 a week as the basis for computing Sirota’s damages, it would aggregate $342 for nineteen weeks, without taking into consideration his doctor’s bill and other elements of damage. Therefore, the measure of damages fixed by the court, which does not exceed the aggregate amount paid by the employer, is not excessive. Sirota’s testimony before the Industrial Commission sustains the finding of the court as to the measure of damages. Accordingly, we are of opinion the judgment of the trial court should be affirmed and it is so ordered.

Judgment affirmed.

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


source: Caselaw Access Project

author: Mr. Justice Friend

license: Public Domain

text:
    Acme Feeds, Inc., Appellant, v. Victor Daniel, Defendant, A. C. Baker et al., Copartners as Baker Heyne Company, Garnishees, Old Second National Bank of Aurora, Illinois, Appellees.
    Gen. No. 41,569.
    Heard in the second division of this court for the first district at the December term, 1940.
    Opinion filed December 30, 1941.
    L. A. Wescott, of Chicago, for appellant; A. D. McMahon, of Chicago, of counsel.
    Sears, O’Brien & Streit, of Aurora, for certain appellee; Barnabas F. Sears, of Aurora, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Victor Daniel, a tenant farmer in Kane county, Illinois, in pursuance of a common practice employed in rural districts of this country, made a loan of some $3,800 at the Old Second National Bank of Aurora for the purpose, inter alia, of acquiring and fattening 91 head of hogs, to be later sold when market conditions became favorable, and gave the bank his note for the amount involved, secured by chattel mortgage on the hogs, both dated March 1, 1938, maturing eight months thereafter. The mortgage was duly recorded in Kane county, pursuant to statutory provision. Previously, Daniel had made a bill of sale and conditional sales agreement on the same hogs to secure payment of feed which plaintiff, Acme Feeds, Inc., sold to him, but both of these instruments were unrecorded.

June 23, 1938, after learning from the records at the courthouse that the bank had a mortgage on Daniel’s chattels, Acme Feeds advised the bank in writing that Daniel had, on January 31,1938, executed a bill of sale on the same hogs covered by the mortgage, claiming that the bill of sale was superior to the chattel mortgage, at the same time notifying the bank that the amount due for feed would have to be paid in full out of the first hogs sold, and that if any of the money was retained by the bank, Acme Feeds would look to it for payment. Replying to this letter June 30,1938, the bank said that it had taken the matter up with its counsel, that there was no prior mortgage of record, that it considered the recorded chattel mortgage a first and superior lien on the hogs in question, and that the bills of sale given to secure Acme Feeds’ account were subordinate to the bank’s lien.

July 5, 1938, Daniel went to the bank and requested permission to sell 42 of the 91 hogs covered by the mortgage, on condition that he would remit the proceeds to the bank to be applied on the mortgage indebtedness. This permission was granted by the bank’s officers and pursuant thereto Daniel, on July 6, 1938, hauled 42 of the hogs to the Union Stock Yards in Chicago, to be sold by Baker Heyne & Co., commission merchants. Before selling the hogs Daniel told both Baker and Heyne that the bank had a mortgage on the hogs and that the proceeds of the sale were to go to the bank. The hogs were sold, but for some reason not appearing of record remittance was not made that day by the commission firm. Two or three days later Daniel received a letter from Baker and Heyne, dated July 7, 1938, saying that about three o’clock that afternoon they had received a telephone call from Acme Feeds advising them that Daniel was indebted to it and it held a mortgage against Daniel’s hogs. They told Daniel that “we will hold bill and proceeds until further notice.”

July 9, 1938,. the commission firm received notice from the bank that it claimed the entire proceeds of the sale under its mortgage and demanded the money. By reason of the respective claims made upon it, the commission firm retained the fund. Thereafter, July 29, 1938, Acme Feeds caused a garnishment writ to be served upon Baker Heyne & Co. The Old Second National Bank filed an intervening petition claiming the proceeds of the sale and Acme Feeds filed its answer thereto. A hearing by the court, without a jury, resulted in finding and judgment that the intervening petitioner have and recover from the garnishee the sum of $450.32. Acme Feeds has prosecuted this appeal to reverse that order.

It is not here contended that the unrecorded bill of sale and conditional sales agreement afforded plaintiff any priority "over the bank’s recorded chattel mortgage, but it is urged that when the mortgaged chattels were sold with only the verbal consent of the mortgagee, they became released from the lien of the mortgage and that the proceeds from the sale thereupon became subject to garnishment by plaintiff, a judgment creditor. Plaintiff’s counsel argue that consent to the sale should have been in writing, but no supporting authority is cited. In Anderson v. South Chicago Brewing Co., 173 Ill. 213, oral consent by the president of a corporation to the sale of property by the owner, on which the corporation held a chattel mortgage, was held to be valid. (Citing Jones on Chattel Mortgages, sec. 458; Cage v. Whittier, 17 N. H. 312; Pratt v. Maynard, 116 Mass. 388.)

The fundamental question involved in this proceeding is whether the sale of the mortgaged chattels, with the bank’s consent and upon the condition that the proceeds of the sale would be applied in payment of the mortgage debt, had the effect of releasing the chattels from the lien of the mortgage. If that result was attained by sale of the hogs, as plaintiff contends, its right as a creditor to attach the proceeds of the sale by garnishment would logically follow. On the other hand, if the sale under the circumstances disclosed by the undisputed evidence did not affect the bank’s lien but merely caused it to attach to the proceeds, then plaintiff acquired no right paramount to that of the bank by virtue of its recorded chattel mortgage.

Plaintiff’s position is predicated upon the erroneous assumption that the hogs were sold in the “usual course of business,” and its counsel rely on several Illinois decisions where special circumstances such as unconditional assent to a sale, fraud, or waiver existed. In this proceeding plaintiff cannot claim that it was misled or deceived because of the ostensible possession of the hogs by the mortgagor, since it was fully aware of the bank’s recorded mortgage and of the circumstances attending Daniel’s transaction with the bank. It is clear from the evidence that the bank did not intend to waive any of its rights, but granted Daniel permission to sell the hogs upon the express stipulation that its mortgage lien would attach to the proceeds of the sale. It is a fundamental rule of law that waiver must be predicated upon knowledge of an existing right and ah intention to relinquish it. (Perin v. Parker, 126 Ill. 201.) The evidence adduced upon the hearing clearly indicates that the bank was fully aware of its rights under the mortgage and had no intention whatever of relinquishing them when Daniel sought and obtained permission to sell these hogs.

Although the courts of our State have not had occasion to pass upon the precise question, we find decisions in other States amply supporting the bank’s position. 36 A. L. R., beginning at page 1379, contains a general discussion of the right of the chattel mortgagee in respect of proceeds of sale of mortgaged property by the mortgagor, and, at page 1384, it is said to be the general rule that where the consent of the mortgagee to the sale of the mortgaged chattels by the mortgagor is conditioned upon the latter’s agreement to apply the proceeds of the sale upon the mortgage debt, the mortgagee does not lose his right to the proceeds by such consent, and that “a sale in good faith by the mortgagor at the instance of the mortgagee, who acted in good faith, the proceeds of the sale to be applied in payment of the mortgage debt, does not destroy the mortgagee’s right to the proceeds.” (Citing Muse v. Lehman, 30 Kan. 514, 1 Pac. 804.) In the case at bar the good faith of the mortgagor, as well as that of the bank, cannot be questioned.

In Scurry v. Quaker Oats Co., 201 Iowa 1171, 208 N. W. 860, plaintiff, the mortgagee of some corn, consented to the sale thereof by the mortgagor when market conditions became favorable, upon condition that the proceeds from the sale be delivered to plaintiff. After the sale and delivery of the corn by the mortgagor, garnishment proceedings were instituted by a judgment creditor and the money was thereafter paid into court. Upon trial it was held that the mortgagee’s consent operated to release the lien of the mortgage and judgment was entered in favor of the creditor. The Supreme Court, reversing the judgment, said: “Since the appellee, by virtue of its garnishment, acquired only the right of the mortgagor, the controversy must be viewed as one arising between the mortgagee and the mortgagor to the proceeds of the sale in the hands of the purchaser. There is here no question of the intervening rights of an innocent third party. As between the mortgagor and the mortgagee, the former acquired no right to the proceeds of the corn. The undisputed testimony is that the agreement between them was that the corn was to be sold by the mortgagor and the money brought to the mortgagee. The sale was consented to by the mortgagee only on the condition that the proceeds should come to him.”

J. I. Case Threshing Mach. Co. v. Rominger, 77 Colo. 595, 238 Pac. 63, likewise involved the sale of mortgaged property by the mortgagor with the mortgagee’s consent, and upon condition that the proceeds of the sale were to be applied to payment of the mortgaged debt. The question involved was whether the mortgagee should prevail over a judgment creditor who had garnisheed the proceeds of the sale before remittance was made to the mortgagee. In discussing that question the court said: "The question is whether the hank had a valid claim to the proceeds of the sale in Schmidt’s hands at the time of the garnishment. We think it had. Plaintiff in error says the lien was lost by the mortgagee’s consent to a sale by the mortgagor, and cites Moore v. Jacobucci, 70 Colo. 171, 197 P. 1015. It is true that, if the mortgagee lets the mortgagor sell for his own account, he loses the lien on both the goods and their proceeds. The reason is that such a proceeding is fraudulent, as explained in Wilson v. Voight, 9 Colo. 614, 13 P. 726; but it is there clearly indicated that, if the proceeds are to go in payment of the mortgage debt, the rule is otherwise. What objection can there be to a sale by the mortgagor and mortgagee together for the purpose of paying the mortgage debt? We can see none, and that is what the agreed statement shows that they did.”

Another decision precisely in point is McIntyre v. Hauser, 131 Cal. 11, 63 Pac. 69. There the mortgagee consented to the sale of some mortgaged cattle upon condition that the proceeds be paid to him. Before the purchase price was paid a judgment creditor of the mortgagor garnisheed the money in the hands of the purchaser, who, regardless of the garnishment, paid the money to the mortgagee. Thereupon the judgment creditor sued to recover the amount from the purchaser. The court held that the creditor could not recover from the garnishee.

A similar conclusion was reached in Great Northern State Bank v. Ryan, 292 Fed. 10. In that case one Schmid, who was engaged in the dairy business, gave mortgages on cows to the plaintiff bank as security for loans made. Ultimately Schmid’s dairy business was sold with the bank’s consent. The chattels involved included some of the cows covered by the bank’s chattel mortgage. The sale was made with the understanding that the proceeds from the sale of the cows were to be remitted to the bank and applied on payment of the mortgage debt. Schmid went into bankruptcy and the trustee brought suit against the bank claiming the fund. The circuit court of appeals for the eighth circuit, in reversing the judgment of the trial court,. pointed out that the transaction between the bank and Schmid constituted an agreement that the bank as mortgagee should receive the money for the particular property covered by the mortgage, that there was no fraud in the transaction, and that, therefore, no creditor had acquired any lien on the chattels.

The rule to be deducted from the foregoing cases and others cited in 36 A. L. R., beginning on p. 1384, is that where the mortgagee consents to the sale of chattels by the mortgagor on condition that the proceeds of the sale will apply on the mortgage debt, both parties acting in good faith, the lien of the mortgage is not discharged and the mortgagee does not lose his right to the proceeds by snch consent. In J. I. Case Threshing Mach. Co. v. Rominger, supra, the court pertinently inquired, “What objection can there be to a sale by the mortgagor and mortgagee together for the purpose of paying the mortgage debt?”, and answered the inquiry by saying, “We can see none, and that is what the agreed statement shows that they did.” In the case at bar Daniel, the mortgagor, advised the commission firm that these hogs were subject to a mortgage and that it was to remit the proceeds to the bank. Acme Feeds knew of the existence of the mortgage, and even though it claimed right to the proceeds as a judgment creditor, it was not through lack of knowledge of the circumstances attending the sale, but because of a misconception of the law upon which its claim was predicated. Both Daniel and the bank acted in good faith and in pursuance of a common practice, and we think the bank was clearly entitled to the proceeds of the sale. The court so held and therefore its judgment should be and is affirmed.

Judgment affirmed.

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


text:
    Ernest H. Snyder for use of Leo Brooks et al., Appellees, v. United States Mutual Insurance Company, Appellant.
    Gen. No. 41,608.

      Heard in the second division of this court for the first district at the February term, 1941.
    Opinion filed December 30, 1941.
    John A. Bloomingston, of Chicago, for appellant.
    Tarnopol & Flamm and Ben A. Stewart, all of Chicago, for appellees; Irving H. Flamm and Samuel B. Pearlman, both of Chicago, of counsel.
   Mr. Justice Friend

delivered the opinion of the court.

Plaintiffs were occupants of a car with which an automobile owned by defendant Snyder, but driven by Duncan, another defendant, came into collision. There was undisputed evidence that the collision was occasioned by Duncan’s negligence in violating traffic regulations. Suit against Snyder and Duncan resulted in several judgments for plaintiffs, aggregating some $2,100. These judgments were affirmed upon appeal in Brooks v. Snyder, 302 Ill. App. 432. The facts in that case are fully set forth in our opinion and need not he repeated here. The United States Mutual Insurance Company, which had issued to Snyder an automobile liability policy covering his car, assumed the defense of that cause under the provisions of the policy, and pursuant to a stipulation between Snyder and the company. It took the position that Snyder was merely Duncan’s guest in Snyder’s automobile; that he neither directed nor supervised the driving of Duncan, and that the doctrine of respondeat superior did not apply so as to make Snyder liable for Duncan’s negligence. After reviewing the authorities relied on by the respective counsel, we reached the conclusion that the court properly found Snyder liable for Duncan’s negligence, since he had not abandoned his right to control the car and was still the director of the enterprise in which he and Duncan were jointly engaged. Subsequently plaintiffs brought suit against the United States Mutual Insurance Company as garnishee to recover the amounts of the respective judgments rendered against Snyder. The cause was tried by the court without a jury and resulted in a finding and judgment against the insurance company, from which it has prosecuted this appeal.

The policy issued to Snyder covered liability for bodily injuries not to exceed $10,000, and property damages not to exceed $5,000. It is designated by counsel as a restricted coverage policy by reason of the fact that it was sold at a reduced premium. The salient provisions thereof are: “This policy shall be effective only while the within described automobile is being operated by the called Assured or any member of his immediate family of legal age to operate a motor vehicle, or by his licensed chauffeur, and the protection hereunder is hereby extended under the same conditions but only to the same extent as available to the called Assured, to the benefit of any member of the called Assured’s immediate family when riding in or operating the automobile described herein with the permission of the called Assured, but shall in no event extend to the benefit of any owner, agent, or employee of any automobile garage, automobile repair shop, automobile sales agency or automobile service station.” (Italics ours.)

Defendant takes the position that the italicized word “operated” should be construed in its restricted sense as signifying a personal act in working the mechanism of the motor vehicle or as “driven” by the assured, and that since Snyder was not actually driving the car at the time of the collision, defendant is exempt from liability under the terms of the policy. It is conceded that the only issue involved is whether or not the policy covers the accident in which plaintiffs were injured, and that the determination of that issue in turn depends upon the interpretation to be given the word “operated” as used in the policy.

Defendant contends that because of the reduced premium the restricted coverage is limited to instances where the automobile is being operated, or as he argues, driven by the assured, or by any member of his immediate family of legal age, or by his licensed chauffeur; and that since neither Snyder, nor any member of his family, nor his licensed chauffeur was actually driving the car, defendant is exempt from liability.

In support of its argument that the term “operated” should be interpreted in its restricted sense, defendant relies on Witherstine v. Employers’ Liability Assur. Corp., Ltd., of London, England, 235 N. Y. 168, 139 N. E. 229, which was decided by a divided court in 1923, prior to the time that the legislature of New York in 1924 enacted section 282-e of the Highway Law which bound the owner of the car for negligent operation of the vehicle by any person using or operating it with the permission of the owner. As in the case at bar, execution was returned unsatisfied and suit was thereafter brought against the insurance company. A policy had there been issued to Charles Dunn whose car, occupied by him., his wife, two children and a friend, Albert Ridell, collided with an automobile owned and driven by the plaintiff, Witherstine. In an action against Dunn and Ridell to recover for personal injuries and damage to his car, Witherstine had a verdict and judgment against both defendants. The insurance company, upon notice of the commencement of the suit and a request to defend, declined to do so, on the ground that the damages were not covered by the terms of the policy. The case presented a construction of a clause or rider attached to the body of the policy as follows: “In consideration of the reduced premium at which this policy is written, it is stated by the assured (which statement is accepted by the corporation as true) that the automobiles described therein are and will lie used only for private purposes. Private purposes shall include personal pleasure and family use, excluding the regular and frequent use for business or professional calls and excluding commercial delivery. It is further agreed that this Policy shall apply only while the said automobiles are being operated by Charles Dunn (who is the owner and the named Assured), or while the automobiles are being operated by a person connected with a repair shop or garage in connection with repair work, testing, delivering or calling for said automobiles.” Defendant contended that the proper meaning to be given to the words “operated by owner for private purposes only” was what is commonly known as a “one-driver” clause, and that since the policy was issued at a reduced rate by reason of the fact that the car was to be operated only by the owner, the insurance company was not obliged to defend and did not become liable under its contract of insurance. In interpreting the word “operate” the court cited several sections of the Highway Law wherein that term was used as signifying a personal act in working the mechanism of a car and concluded that by reason of the analogy to provisions in the act, “the word ‘operate’ seems to have acquired a definite meaning.” One of the dissenting judges, however, in whose brief opinion one of his colleagues concurred, stated that “One of the common and ordinary meanings of the word ‘operate’ is ‘to direct or superintend the working of’ ” and concluded that since the defendant had prepared the policy and used the word, it should be given the broadest meaning in favor of plaintiff and not be interpreted in its restricted sense. Subsequently, in Arcara v. Moresse, 258 N. Y. 211 (1932), the same court, by a unanimous opinion, held that the owner “operated” the car, although another was lawfully driving it, pointing out that the decision in the Witherstine case was based on the fact that there “Obviously the word [operated] is used in the policy in the same sense in which it is used in the Highway Law,” and there was involved in the Highway Law “a word combination” which required a narrower interpretation of the term “operated” because as said in the Witherstine case, “If the meaning were extended to include an owner acting either by himself or by agents or employees, the provisions of the Highway Law would be replete with repetitious jargon.”

The facts in the Arcara case are similar to those in the suit at bar, and we think the principle involved is applicable to this proceeding. The owner in that case had loaned his car to his nephew Maggio for his personal use. At the time of the collision Maggio was in the car but it was being driven, with his permission, by his friend Barone. The owner was not in the car at the time of the accident, and the question presented was whether the owner was liable under a statute which imposes liability on the owner for injuries “resulting from negligence in the operation of such motor vehicle ... by any person legally using or operating the same,” with the owner’s permission. The court was of opinion that although Barone, who had not been authorized by the owner to drive, was at the wheel, Maggio was legally “using the car” and that the owner, therefore, “operated” the car through Maggio.

The only other case cited by defendant in support of its interpretation of the term “operated” is State Farm Mut. Automobile Ins. Co. v. Coughran, 92 F. (2d) 239, 303 U. S. 485. However, that case affords no help to defendant because the court held that “to operate” an automobile does not necessarily imply personal physical handling of the wheel, and although the case was decided in favor of the insurance company, the decision rests on the fact that a minor, forbidden by law from driving, was in fact driving at the time of the accident. This was specifically prohibited by the provisions of the policy and the violation thereof relieved the insurer.

Plaintiffs cite the recent case of Neel v. Indemnity Ins. Co. of North America, 122 N. J. L. 560, 6 A. (2d) 722, in support of their contention that the clause under consideration should be construed in its broader sense. An insurance policy there issued to an automobile sales agency covered the liability of its prospective customers “while riding in or operating” its automobiles. An accident occurred while a car was being tested by a customer’s son. The father was not riding in the car at the time, and the case therefore resolved itself into an interpretation of the word “operating.” In discussing the question the court called attention to the fact that the insurance contract was drafted by thé defendant independent of the statute and that in the preparation thereof plaintiff had no part; that “In such liability insurance there is more than the interest of the assured, whether named or unnamed. There is the- interest of the potentially-damaged person whom, for the want of a more accurate word, we may designate as the public; and his status, in certain respects, is a matter of public policy. [Citing case.] Where there is ambiguity in a contract the rule is that the construction should go most strongly against the writer . . . , and our courts have also held that in suits against an insurer for liability arising out of automobile accidents' the language of the policy should be construed liberally in favor of the assured and of injured persons.” In conclusion, the court pointed out that if the insurer had intended to assume the more limited liability for which it contends, and for which the defendant in the case at bar likewise contends, it could by its contract have narrowed its obligation, and that if it had intended to do so it would have phrased its agreement in words more restricted than those employed.

In Mulconery v. Federal Automobile Ins. Ass’n, 230 Ill. App. 236, it was held that a statement in a schedule of warranties that the insured automobile is operated only by the insured, members of his family and his duly authorized employees, does not restrict the operation of the car during the life of the policy to the persons mentioned, so as to defeat a recovery under the policy for a loss sustained in an accident which occurred after a person not in the class named had been driving, but while the son of the owner was operating the car. Although other questions were considered by the court in affirming the judgment of the trial court, the question under consideration received the attention of the court.

Defendant’s entire argument is predicated on the assumption that this is a restrictive clause and that its purpose is to define and limit the meaning of the word “operated” to “driven.” Whatever restriction the insurance company may have intended to include in its contract of insurance, it is evident that its principal purpose was to designate persons in addition to Snyder who would be entitled to the benefit of the insurance protection, whether driving or operating or riding in the automobile. We think the reasonable interpretation to be placed on the clause is that it was intended to designate all the persons who are entitled to the benefit of the insurance. Snyder would, of course, be the one primarily protected, and in addition thereto the members of his immediate family and the licensed chauffeur are designated “as additional assured,” and therefore entitled to the protection of the policy. Under the' omnibus clause in the policy, coverage is extended to the assured’s family while driving. From this it would appear that if Snyder’s wife or son were sitting in the back seat while the car was being driven by a friend, they would be fully protected, for under that clause coverage is extended to “any member of the called Assured’s immediate family when riding in or operating the automobile.” And if the term “operate” is to be construed in its narrow sense, as defendant contends, the owner Snyder, who pays for the policy, primarily for his own protection, would actually be receiving less protection thereunder than members of his family.

Aside from these considerations, we think our former opinion (302 Ill. App. 432) has a binding effect upon defendant to the extent of our conclusion that there had never been a contractual surrender of the car by Snyder at the time of the accident and that he never relinquished the direction and supervision thereof. The opinion was to the effect that Snyder was constructively driving the car, although Duncan sat at the wheel performing the mechanical operation. Our conclusion was based upon the authority of numerous decisions holding that the car owner who sits alongside the driver and has made no “contractual surrender” of the car is, in effect, “the operator” of the car, and this distinction between the term “driver” and “operator” has frequently been recognized. Reetz v. Mansfield, 119 Conn. 563, 178 Atl. 53; Grubb v. Illinois Terminal Co., 366 Ill. 330.

When plaintiffs originally sued for damages resulting from the collision, defendant elected to defend the cause. It could have declined to do so, as the insurance company did in the Witherstine case, but it evidently regarded the accident as one which was covered by the policy, unless it could prove, as it attempted to do upon the original trial, that Snyder was a guest in his own car. In Employers’ Liability Assur. Corp. v. Chicago & Big Muddy Coal & Coke Co., 141 Fed. 962, the court said that the act of the insurer in taking over the defense “is such a construction of the policy, by contemporaneous acts, as estops [the insurer] from denying liability, now that that action is at an end.” Moreover, in defending the original suit the insurance company evidently placed its construction on the term “operate” as being much broader than it is now willing to concede, and it should now be held to the practical construction which it placed on its own policy.

We think the authorities amply support plaintiffs’ contention that this policy should be liberally construed so as to render defendant liable and the judgment of the circuit court is therefore affirmed.

Judgment affirmed.

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


author: Mr. Justice Sullivan

text:
    Ellen Dessa Mokros, Appellant, v. James M. Blackman, Executor of Last Will and Testament of George T. Shimunok, Deceased, et al., Appellees.
    Gen. No. 41,414.

      Heard in the second division of this court for the first district at the October term, 1940.
    Opinion filed December 30, 1941.
    Nelson, Slater & Boodell, of Chicago, for appellant; Peter B. Nelson, of Chicago, Lyman G. Wheeler, of Milwaukee, Wisconsin, and Louis A. McLean, of Chicago, of counsel.
    Sonnenschein, Berkson, Lautmann, Levinson & Morse, of Chicago, for certain appellees; James T. Harrington, of Milwaukee, Wisconsin, and Isaac E. Ferguson, of Chicago, of Counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

Plaintiff, Ellen Dessa Mokros, filed the complaint herein, in which she prayed that the will of the testator, George T. Shimunok, her brother, be construed to mean that said testator under the fourth clause of his will bequeathed his entire personal estate to her after the payment of the two $100 legacies mentioned in the second and third clauses of his will. The executor of decedent’s will, plaintiff’s two sisters, Ida Mary Burmeister and Emma Laura Nissen and the legatees under the second and third clauses of the will, were named as defendants. The decree entered by the trial court construed the will adversely to plaintiff’s claim and she appeals.

The sole question presented is whether the trial court properly construed the fourth and fifth clauses of the testator’s will.

The dispositive clauses of the will are as follows:

“First: I direct that all my debts and funeral expenses be paid as soon after my demise as may be convenient.
“Second: I give, devise and bequeath to Illinois Masonic Hospital Association the sum of One Hundred Dollars ($100.00).
“Third: I give, devise and bequeath to Ancient Craft Lodge No. 907, A. F. & A. M., the sum of One Hundred Dollars ($100.00), to be disbursed for charitable purposes under the direction of the master of said lodge.
“Fourth: I give, devise and bequeath to my beloved sister, Ellen Dessa Mokros,. all the goods, chattels, papers, books and personal effects of which I may die seized or possessed.
“Fifth: All the rest, residue and remainder of my estate, both real, personal and mixed of every nature and description, I give, devise and bequeath to my beloved sisters, Ida Mary Burmeister, Emma Laura Nissen and Ellen Dessa Mokros, share and share alike, to have and to hold the same for their own proper use and behoof forever.”

The decree found and adjudicated as follows:

“4. . . . That the complaint filed by the plaintiff and the answers thereto filed by certain of the defendants present the question whether upon a proper construction of the provisions of the last will and testament of said George T. Shimunok all of the personal property of the testator, now in the hands of the executor of his estate, as shown by the inventory filed in the Probate Court of Cook County, excepting only two bequests of $100 each, should be distributed by the executor to Ellen Dessa Mokros, the plaintiff herein, or whether said property should be distributed by the executor share and share alike to the three sisters of the testator, namely, Ellen Dessa Mokros, Ida Mary Burmeister and Emma Laura Nissen.
“5. That at the time the testator made his last will and testament and at the time of his death he owned no land or buildings; that at the time of his death all that he owned and possessed was taken into custody, in the first instance, by the plaintiff; that subsequently the plaintiff turned over 'to the executor the items enumerated by the executor in his inventory of personal property; that the articles taken by the plaintiff from the room where the testator resided were retained by the plaintiff; that the appraisers appointed by the Probate Court of Cook County reported no goods and chattels subject to appraisal.
“6. That the construction of said will urged by the plaintiff would render nugatory clause 5 of the will, whereby the testator bequeathed to his three sisters, share and share alike, ‘all the rest, residue and remainder of my estate, both real, personal and mixed, of every nature and description. ’ That from the expressions used by the testator in his last will and testament, likewise from all of the evidence offered upon the trial of this cause, it cannot reasonably be assumed that the testator meant to disinherit his sisters Ida Mary Burmeister and Emma Laura Nissen in favor of his sister, Ellen Dessa Mokros.
“7. That, in view of the provisions of clause 5 of the will, the bequest made to the plaintiff by clause 4 of the will cannot reasonably be taken to include any of the items listed by the executor in his inventory of personal property, consisting of cash in banks, postal saving certificates, mortgage notes and bonds, shares of stock in building corporations, other securities and evidences of indebtedness; that upon a proper construction of the will in its entirety the bequest made to plaintiff by clause 4 of the will of ‘all the goods, chattels, papers, books and personal effects of which I may die seized or possessed’ must be taken in a limited and precise sense, as referring to the tangible personal belongings of the testator of which the plaintiff has already taken possession.”

The only property of the testator that came into the hands of the executor consisted of cash on deposit in banks, a civil service retirement check, postal savings certificates, mortgage notes, mortgage bonds and stocks in building corporations, the total value of such assets being $13,165.35.

The decedent was admitted to the Bar in Wisconsin and practiced law there for a short time. He then entered the postal service in the Chicago Post Office in 1895 and remained in such service until he retired in 1931. After his retirement he traveled extensively and lived in Florida for several winters prior to his death. When he was not traveling or living in Florida he lived at the home of a Mrs. Cleary in Chicago. His three sisters were all married and lived in or near Milwaukee, Wisconsin.

The testator died October 6, 1937, and upon being advised of her brother’s death plaintiff came to Chicago, went to his room at Mrs. Cleary’s home, packed up “all his personal effects” and took them to her home. She did not turn these “personal effects” over to the executor. She then went to decedent’s safety-deposit box in Chicago, to which she had a key, and removed the contents thereof, as heretofore enumerated, kept same for about a week and then turned them over to the executor. She testified that the decedent entrusted her with a key to his safety-deposit box since 1921 but that she exercised her right of entry to the box on only one occasion during his lifetime; and that at that time, while her brother was away on a trip, he requested her to secure some papers from his box and deliver them to his attorney. She also testified that “he always had a key to my home . . . I had a room there for him.” However, she did not testify that he ever occupied or slept in such room. She then testified that her brother “traveled considerably”; that “whenever he would come home he would always come up and see us”; that he would also go to see his sisters occasionally but quite often he would telephone them; and that his relations with all of his sisters were friendly and cordial.

Defendant Mrs. Emma Laura Nissen testified that she was a sister of the testator; that her relationship with her brother during his lifetime was very “harmonious ’ ’; that she lived with her mother during the latter’s lifetime and that prior to her mother’s death in 1924 her brother spent every weekend at their home ; that subsequent to 1924 every time the decedent went to Milwaukee he called at her home, which was the old homestead; and that if he was in Milwaukee and could not visit her he would telephone.

John Burmeister testified that he was the husband of decedent’s sister Ida Burmeister; that he had known decedent for forty years; that the decedent visited his home “every time he had a chance”; and that his wife was unable to be present at the trial because “she was very sick.”

Plaintiff’s theory, as stated in her brief, is that “the trial court erred in its construction of the will finding that the plaintiff was not entitled to the personal estate of the decedent under the fourth clause of the will and that the court further erred in finding that the plaintiff had already possessed herself of the goods, chattels, papers, books and personal effects bequeathed to her under the fourth clause of said will.”

Her defendant sisters and the executor assert that “to construe the will of George T. Shimunok in the manner urged by the plaintiff would disinherit two of the testator’s sisters in favor of the third, with nothing in the will itself or in the evidence introduced at the trial to indicate that this was the testator’s intention, therefore such a construction should be rejected.”

The primary rule in testamentary construction is to ascertain the intention of the testator from the four corners of his will and to give it effect if not in conflict with an established rule of law or public policy. In Dahmer v. Wensler, 350 Ill. 23, the court said at pp. 26 and 27:

“The cardinal rule of testamentary construction is to ascertain the intention of the testator and to give it effect unless the testator attempts to accomplish a purpose or to make a disposition contrary to some rule of law or public policy. . . . The process of ascertaining that intention requires a consideration of all the provisions of the instrument taken as a whole and not of any particular part separated from the rest. (Jordan v. Jordan, 274 Ill. 251; Black v. Jones, 264 id. 548; Eldred v. Meek, 183 id. 26; Ducker v. Burnham, 146 id. 9; Dickison v. Dickison, 138 id. 541).”

The same general rule is stated in Heitzig v. Goetten, 347 Ill. 619, at p. 626:

“ . . . Where one construction of a will renders a portion of it meaningless and another gives effect to all the words used the latter should be adopted. (Walker v. Walker, 283 Ill. 11.) A fundamental and familiar rule in construing wills is to ascertain the intention of the testator from a consideration of the whole will, and such intention must be given effect if not in conflict with an established rule of law or of public policy. . . . The whole scope of the will must be considered and every provision given due weight to ascertain the plan of the testator in the light of the facts and circumstances surrounding him, his family and property at the time the will was made. ’ ’

Plaintiff insists that the words ‘‘ all the goods, chattels, papers, books and personal effects” as used in the fourth clause of the will have a comprehensive meaning and a definite legal significance, which meaning and significance must be given to them unless a clear intention to the contrary is apparent from the context of the will considered in its entirety; that under such clause the testator clearly intended that all of his personal property, both tangible and untangible, should pass to plaintiff; and that if the will is considered in the light of the surrounding circumstances, as it should be, it must appear that plaintiff was the most natural object of the testator’s bounty.

It will be noted that, while the fourth clause of the will contained the provision, “I give, devise and bequeath to my beloved sister, Ellen Dessa Mokros, all the goods, chattels, papers, books and personal effects of which I may die, seized or possessed,” the fifth clause provided “all the rest, residue and remainder of my estate, both real, personal and mixed of every nature and description, I give, devise and bequeath to my beloved sisters, Ida Mary Burmeister, Emma Laura Nissen and Ellen Dessa Mokros, share and share alike. ’ ’ Viewing the will as a whole, in our opinion the only reasonable construction that can be given to it is that it was the' decedent’s intention and plan that plaintiff was to have his tangible “personal effects” as distinguished from his intangible personal property contained in his safety-deposit box, in which all three sisters were to share alike. If the testator had intended otherwise and meant that plaintiff should have all of his personal property, both tangible and intangible, he must have known, with his legal training, that his purpose would have been fully accomplished by the fourth clause of his will and that there was no necessity for the fifth clause since neither at the time his will was executed nor at the time of his death did he own any real estate or property of any kind other than the personal property heretofore referred to. As another clear indication of the intention of the decedent to have his three sisters share equally in his estate, except as to the two $100 legacies and his tangible “personal effects,” was the inclusion of plaintiff with her two sisters as beneficiaries under the fifth clause of the will. If he had intended that plaintiff should have all of his estate under the fourth clause why did he include her as a beneficiary along with her sisters in the fifth clause?

But plaintiff insists that she was the most natural object of decedent’s bounty and as such the will should be construed as she contends. Is there anything in the will itself or in the evidence that even tends to show that she was the most natural object of his bounty? She attempted to show that she was the most natural object of his bounty by her testimony that during his lifetime he had a key to her home and that she kept a room therein for his use. But there is no evidence in the record that he ever used either the key or the room. We also have her testimony that the decedent furnished her with a key to his safety-deposit box. She does not claim that during his lifetime she had any interest in the contents of such safety-deposit box and she testified that the only time during his lifetime that she used her key to enter said box was as a matter of accommodation and convenience to her brother while he was away on a trip. This evidence is insufficient to show that plaintiff was any more the natural object of her brother’s bounty than were her two sisters. Even, according to plaintiff, decedent’s relationship with her sisters was at all times friendly and cordial. According to Mrs. Nissen, her brother’s relations with all three sisters were at all times harmonious. It is significant that in his will the testator referred to them collectively as his “beloved” sisters.

To construe the will as plaintiff urges that it should be construed the fifth clause thereof would have to be entirely disregarded and the bequests thereunder to his sisters Ida Mary Burmeister and Emma Laura Nissen would have to be considered as pure sham. There is no reason shown in the record why their affectionate brother would want to perpetrate such a hoax upon his sisters, Mrs. Burmeister and Mrs. Nissen. Looking at the whole scope of the will in the light of all the surrounding circumstances, we cannot believe that the testator intended to disinherit his sisters Mrs. Burmeister and Mrs. Nissen and the presumption is that he did not so intend. In Pontius v. Conrad, 317 Ill. 241, the court said at p. 246: “Another presumption which prevails in the interpretation of wills is against a construction which will have the result to disinherit the heir. The heirs of a testator are favored by the policy of the law and cannot be disinherited upon mere conjecture. When the testator intends to disinherit them he must indicate that intention clearly, either by express words or by necessary implication.”.

In its construction of the will the trial court did not ignore any of the words or clauses contained therein and we think it gave to all of the words and clauses of said will the effect clearly intended by the testator. If as already stated the construction urged by plaintiff were adopted the fifth clause of the will would have to be completely ignored.

Plaintiff admits that she took from the testator’s room all of his “personal effects” and kept them, but there is no evidence in the record as to what such effects consisted of or of their value. Apparently under her own interpretation of the fourth clause of the will she considered said effects as her own and did not turn them over to the executor but she did turn the contents of the safety-deposit box over to the executor voluntarily.

Much is said in plaintiff’s brief as to the comprehensive meaning and legal significance of the words “goods,” “chattels,” “books,” “papers” and “personal effects” as used in the fourth clause of the will. Plaintiff argues at length, quoting from several dictionaries and text books and from numerous authorities of this and other jurisdictions, that the foregoing words or terms include within their meaning money, stocks, bonds, notes and other evidences of indebtedness and that, therefore, the intangible personal property contained in his safety-deposit box was intended by the testator to go to her. It would serve no useful purpose to analyze, discuss or differentiate these quoted works and cases since we are convinced that, viewing the will in its entirety, the testator used said terms as descriptive of his tangible “personal effects.” The question here is not what meaning might be attributed to one or more or all of these words used in some other actual or hypothetical context but rather what meaning was intended by the use of such words collectively in the fourth clause of the will. While it is true that the words “goods” and “chattels” under some circumstances and as used in some contexts would have a broad enough significance to include personal property such as was contained in the decedent’s safety-deposit box, nevertheless we are impelled to hold that the trial court properly construed such words as referring only to the decedent’s tangible “personal effects” as used in the fourth clause of testator’s will.

From the words used in the various clauses of the will and the obvious general plan and purpose of same, the conclusion is irresistible that by the fourth clause of the will the testator meant to bequeath to plaintiff only his tangible personal goods, chattels, papers, books and personal effects of which she has already taken possession and that by the fifth clause of the will the testator meant to divide among his three sisters equally the cash in banks, postal savings certificates, bonds, notes, shares of stock and choses in action inventoried by the executor (after payment of debts, cost of administration and the cash bequests made by the second and third clauses of the will).

For the reasons stated herein the decree of the circuit court is affirmed.

Decree affirmed.

Scanlan, P. J., and Friend, J., concur.


text:
    Bernadyne Wein, Appellee, v. Albany Park Motor Sales Company, Appellant.
    Gen. No. 42,001.

      Heard in the second division of this court for the first district at the October term, 1941.
    Opinion filed December 30, 1941.
    Joseph Fisher and Lafayette Fisher, both of Chicago, for appellant; S. R. Hassen, of Chicago, of counsel.
    Freeman & Freeman, of Chicago, for appellee; Earl Freeman, of Chicago, of counsel.
   Mr. Justice Sullivan

delivered the opinion of the court.

This appeal seeks to reverse a judgment entered in the municipal court of Chicago on June 4, 1941, in favor of plaintiff, Bernadyne Wein, against defendant] Albany Park Motor Sales Company, in an action of forcible entry and detainer. The case was tried before a jury. At the conclusion of all the evidence the court directed a verdict for plaintiff and the judgment appealed from was entered upon said verdict. No question is raised on the pleadings.

On April 30, 1941, plaintiff, Bernadyne Wein, filed this action of forcible entry and detainer against defendant for possession of the premises at 2742-50 Lawrence avenue, Chicago, Illinois. On November 8, 1933, the Chicago Title & Trust Company, as successor trustee, filed a complaint in the circuit court of Cook county to foreclose the lien of a trust deed on the premises involved herein, which trust deed had theretofore been executed by Moe I. Schiffman and his wife. A decree of foreclosure was entered in said proceeding . on June 6,1935. Pursuant to said decree, the premises were sold at the foreclosure sale to one Mary Barton on January 16, 1940. The period of redemption expired 15 months later or on April 16, 1941.

During the period of redemption Mary Barton, who held the master’s certificate of sale, entered into a lease for said premises with defendant, the period of said lease to commence May 1, 1941, which was 15 days after the expiration of the redemption period and to end April 30, 1944. The defendant had previously been in possession of the premises under a lease from the receiver in the foreclosure proceeding, which lease was for the period commencing January 15, 1940, and ending April 30, 1941. The expiration date of this lease extended 15 days beyond the period of redemption. Although defendant claims the right of possession under both of said leases, it did not see fit to offer in evidence the lease from the receiver to it.

On April 9, 1941, which was prior to the expiration of the redemption period, one Herbert Silverman, a judgment creditor of Moe I. Schiffman, one of the mortgagors in the foreclosure proceeding, redeemed from the foreclosure sale by levying against the mortgaged premises on a writ of execution issued pursuant to his municipal court judgment and a deed for the premises was executed by the bailiff of the municipal court to Silverman. On April 10, 1941, Silverman and his wife executed a deed covering said premises to plaintiff, Bernadyne Wein. It is under this deed from Silverman to plaintiff that she claims the right to possession.

Defendant offered to prove that the redemption by Silverman and the deed from Silverman to plaintiff constituted a fraudulent scheme to circumvent its lease from Mary Barton, which offer of proof was rejected by the trial court. We think that the court’s ruling in this regard was proper as will be hereafter shown.

Defendant’s position as stated in its brief is as follows:

“1. That the Court in an action of forcible entry and detainer had no jurisdiction of the subject matter of the suit.
“2. That its right to the possession of said premises is based upon its leases to said premises.
“3. That plaintiff is not a bona fide assignee of the redeeming creditor; that plaintiff is the assignee of defendant’s lessor, and had notice and knowledge of defendant’s leases to said premises; that plaintiff is in no position to object to defendant’s right of possession.
“4. That the court, assuming it has jurisdiction of this suit, erred in directing a verdict for the plaintiff. ’ ’

To sustain the judgment of the trial court plaintiff relies on the following propositions:

“1. The defendant is a party to the decree under which the premises were sold, within the meaning of clause 6 of section 2 of the Forcible Entry and Detainer Act, and consequently, the Court has jurisdiction.
“2. Defendant’s lease from the receiver expired on April 16, 1941, which was the date on which the period of redemption expired.
“3. Defendant’s lease from Mary Barton was of no force or effect.
“4. Defendant’s offer of proof was properly rejected, because in an action of forcible entry and detainer, title cannot be put in inquiry.
“5. There being no question of fact for the jury to determine, the Court properly directed a verdict for plaintiff. ’ ’

Clause 6 of section 2 of the Forcible Entry and Detainer Act (ch. 57, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 109.264]) provides as follows:

“The person entitled to the possession of lands or tenements may be restored thereto in the manner hereafter provided:
“Sixth, When lands or tenements have been conveyed by any grantor in possession, or sold under the judgment or decree of any court in this state, or by virtue of any sale in any mortgage or deed of trust contained and the grantor in possession or party to such judgment or decree or to such mortgage or deed of trust, after the expiration of the time of redemption, when redemption is allowed by law, refuses or neglects to surrender possession thereof, after demand in writing by the person entitled thereto, or his agent. ’ ’ (Italics ours.)

Plaintiff claims the right to possession under the foregoing italicized provision of the statute. Defendant contends that the trial court had no jurisdiction of the subject matter of this action because said defendant was not a party to the foreclosure decree under which the premises were sold. The question is thus presented as to whether defendant was a party to the decree in the foreclosure suit within the meaning of said provision of the statute. It will be noted that defendant went into possession of the premises under a lease from the receiver appointed in the foreclosure proceeding. The receiver was authorized to make this lease by the following order entered by the court in said proceeding:

“It is, Therefore, Ordered that leave be and the same is hereby granted to E. C. Schuett, receiver herein, to enter into a lease with the Albany Park Motor Sales Company, a corporation, for a fifteen month period commencing January 15, 1940, at a monthly rental of $150.00 per month.”

It has been repeatedly held that where, as here, a party secures possession from a receiver and thus acquires his interest in the premises during the pend-ency of the foreclosure proceeding, said party takes subject to the determination of that suit and is within the meaning of the section of the statute under consideration a party to the decree. It was so held in Meier v. Hilton, 257 Ill. 174, where the court said at p. 179:

“The action of forcible entry and detainer is a summary statutory proceeding for restoring to the possession of land one who is wrongfully kept out or has been wrongfully deprived of the possession, in the particular cases mentioned in the statute. It is a possessory action, only, and it usually arises where one’s possession has been forcibly invaded, between landlord and lessee, vendor and vendee, or the purchaser at a judicial sale and a party to the judicial proceeding. The question of title cannot be tried, but only the right of possession. Here the defendants’ possession was acquired under the receiver, during the pendency of the litigation, and their contract with Amos [mortgagor] was made after he was served with process. Having acquired their interest during the pendency of the suit they take subject to its determination, and are, within the meaning of the statute, parties to the decree.”

In Jackson v. Warren, 32 Ill. 331, the aforesaid statutory provision was given an even more comprehensive construction. There the court said at p. 340:

“In one sense, the whole public is a party to a decree, for that, itself, is of a public nature and of record, of which all persons are bound to take notice. He, then, who meddles with the property, which is the subject of the decree, becomes, by that act, a party to the decree.” (To the same effect are Kratz v. Buck, 111 Ill. 40; and Rice v. Brown, 77 Ill. 549.)

Therefore it clearly appears that defendant was a party to the decree in the foreclosure proceeding within the meaning of clause 6 of section 2 of the Forcible Entry and Detainer Act and that the trial court had jurisdiction of the subject matter of this cause.

While the defendant bases its right to possession on both leases, that from the receiver for the period from January 1, 1940 to April 30, 1941, and that from Mary Barton for the period from May 1, 1941 to April 30, 1944, neither of these leases can be of any avail to it as a defense."

Defendant asserts that this action, which was filed on April 30, 1941, was prematurely brought because its lease from the receiver by its own terms did not expire until midnight April 30, 1941. However, defendant overlooks the fact that by the order of court, heretofore set forth, the receiver was only authorized to enter into a lease with it for the 15 month period commencing on January 15, 1940, which period would expire April 15, 1941. As already stated, the statutory period of redemption expired on April 16, 1941, and not only was the receiver not authorized under the law or by the court’s order to lease the premises beyond said date, but the court itself did not have the power or authority to authorize the receiver to do so. As was said in Chicago Joint Stock Land Bank v. McCambridge, 343 Ill. 456, at p. 461: “The order purporting to authorize the receiver to lease the premises for a term beyond the expiration of the period of redemption was not within the jurisdiction of the court and conferred no authority to lease the land beyond the expiration of the mortgagor’s estate.”

It is obvious that that portion of the lease from the receiver to defendant was void which purported to extend the period covered by the lease beyond April 16, 1941, and that this lease actually expired on April 16, 1941, which was the expiration date of the redemption period. This suit having been filed on April 30, 1941, there is no merit in defendant’s contention that it was prematurely brought.

The lease entered into during the redemption period between Mary Barton and the defendant for the period from May 1, 1941 to April 30, 1944, was clearly void. Mary Barton never had title to the premises. She merely held the certificate of sale, which in the event there was no redemption would have entitled her to a master’s deed at the expiration of the redemption period. ‘ ‘ The interest of the appellant ... as holder of the certificate of purchase from the master is not a vested one but is merely a right to receive a deed if the premises are not redeemed.” Klein v. Mangan, 369 Ill. 645. “The purchaser at the master in chancery’s sale by the issuance of the master’s certificate of sale acquires no title to the land, either legal or equitable.” Hack v. Snow, 338 Ill. 28. To the same effect are Hooper v. Goldstein, 336 Ill. 125 and Strauss v. Tuckhorn, 200 Ill. 75.

When Mary Barton executed the lease to defendant her interest in the premises was a mere intangible expectancy, which was wiped out when Silverman redeemed the property. Since Mary Barton, under whom defendant claims, never had title to the premises or the right to possession thereof but merely had the right to receive a master’s deed in the event that there was no redemption, the purported lease she made with defendant for the period commencing after the redemption period must be held to be void and of no effect.

Defendant claims that the court erred in excluding the evidence embraced in its offer of proof, heretofore referred to. There is no merit in this contention. Defendant sought to show by oral evidence that Mary Barton and plaintiff, Bernadyne Wein, entered into a conspiracy to defeat the Barton lease to it by having Silverman redeem and deed the property to plaintiff. In other words the defendant attempted to attack Silverman’s and plaintiff’s title by showing that it was Mary Barton who actually redeemed the property and not Silverman.

The rule of law has been long and firmly established that in an action of forcible entry and detainer, the title to the premises involved cannot be inquired into, said action being purely a possessory one. (Doty v. Burdick, 83 Ill. 473; Hammond v. Doty, 184 Ill. 246; Meier v. Hilton, 275 Ill. 174; Shulman v. Moser, 284 Ill. 134; Chicago Ry. Equipment Co. v. Wilson, 250 Ill. App. 231.) The rule is also well established that equitable defenses are not allowed in a forcible entry and detainer action. (St. Louis National-Stock Yards v. Wiggins Ferry Co., 102 Ill. 514; Illinois Cent. R. Co. v. Baltimore & O. & C. R. Co., 23 Ill. App. 531; Knox v. Hunter, 150 Ill. App. 392.) What defendant actually attempted to do by its offer of proof was to set aside the deed from Silverman to plaintiff, but as stated in Jones v. Jones, 281 Ill. 595, 600, “The equitable right of the appellant to have a deed set aside could not be tried in a forcible entry and detainer suit. ’ ’

Since the only purpose of the evidence outlined in defendant’s offer of proof was to attack plaintiff’s title and to attempt to contradict the recitals in the instruments of title through which plaintiff claims a right to possession, said offer of proof was properly rejected.

Since it conclusively appears that there was no question of fact for the jury to determine, there was no other course open to the trial court than to direct a verdict for plaintiff.

The judgment of the municipal court of Chicago is affirmed.

Judgment affirmed.

Scanlan, P. J., and Friend, J., concur.