text:
    Anton Korch for use of Joseph Doody, Appellee, v. Indemnity Insurance Company of North America, Appellant.
    Gen. No. 43,513.
    Opinion filed May 29, 1946.
    Rehearing denied June 12, 1946. Released for publication June 13, 1946.
    Vogel & Bunge, of Chicago, for appellant; L. H. Vogel and Frank H. Masters, Jr., both of Chicago, of counsel.
    Darrow, Smith & Carlin and Louis A. Rosenthal, all of Chicago, for appellee.
   Mr. Presiding Justice Friend

delivered the opinion of the court.

On June 22, 1944 Anton Korch, while driving his automobile, injured the plaintiff, Joseph Doody. Korch was covered by a casualty insurance policy issued by defendant, and the day following the accident he went to the office of the insurance company, reported the accident and gave a statement. Some time in August he received a letter from Doody’s attorney, which he personally delivered to the claim department of the insurance company. In the meantime there had been investigations by the company and negotiations for settlement with Doody’s attorney. On November 10, 1944 Doody filed suit against Korch. Summons was served on Korch by leaving a copy thereof with his daughter at their home on November 15, 1944, which she placed on his dresser without telling him about it. Korch did not see the summons until the evening of December 2, 1944, two days before the return day, which was December 4, 1944. He testified that during this time he was preoccupied and worried by his wife’s serious illness and operation, and that on the day she came home from the hospital he started to open all his accumulated mail, found the summons and asked his daughter how and when it was received. He was considerably concerned because he thought that the trial was to be held on the following Monday, December 4, which was the return day, but he could not get in touch with the insurance company until Monday. Korch was a window cleaner by occupation, and on the following Monday he went to work at 7:30 in the morning, and about 9:00 o’clock when he thought the insurance company opened its office, he went to a near-by drugstore and called up Andover 3400, a number which he obtained from the telephone directory. He testified that the girl who answered the telephone said it was the Indemnity Insurance Company; that he told her his name was Anton Korch and that he wanted to talk to somebody about a summons which he had received requiring him to be in court on that day; that the girl said “Just a minute, I am going to connect you with the proper person”; that he waited a few minutes and then talked with some other person who inquired “You got a summons?”; that he replied “Yes, my name is Anton Korch,” gave the person to whom he was then speaking the number of his insurance policy and asked her “What should I do? I am late. I should be today in Court. Would you straighten those things out? I don’t know how those things work. It is not my business”; that the girl to whom he was talking said “Yes, what is your name?”, took it, and said that everything would be taken care of. He thereupon hung up the receiver “with satisfaction everything is settled,” and returned to work.

It appears that nobody defended the suit; on January 11, 1945 an order of default was entered and on January 16, 1945 judgment was entered in favor of Doody and against Korch for $1,500, with a finding of malice as the gist of the action. Subsequently, on 'March 29, 1945, Korch was requested to come to the office of the insurance company, where he was interrogated by its counsel and W. K. Faust, claims manager of the company. His statement at that time was substantially the same as his testimony in the garnishment proceeding as hereinbefore related.

The garnishment proceeding against the insurance company was instituted on February 21, 1945, and a hearing had therein before the court without a jury on May 10, 1945. The garnishee defendant contended that Korch had failed to comply with a clause of the policy providing that the insured forward summons to the company. Plaintiff, as well as counsel for Korch, claimed that the company had waived this provision of the policy. The court found for plaintiff and against the garnishee defendant for the amount of the original judgment, together with interest and costs, or a total of $1,548.80. The defendant g’arnishee appeals from that judgment.

■ As the principal ground for reversal it is urged that Korch had breached a condition of the policy by failing to send the summons to the garnishee defendant, and that there was no waiver of such breach of policy conditions. It must be conceded, of course, that unless there was a waiver of the policy condition requiring Korch to deliver summons to the insurance company, Doody would not be entitled to prevail in this proceeding, and it being admitted that the summons was not delivered to the insurance company, the question presented is whether there was a waiver of that condition. We therefore revert to the testimony at the-garnishment hearing touching upon the question of waiver. We have already set forth the pertinent portions of Kerch’s testimony with respect to the telephone conversation he had on the morning of December 4, 1944 reporting that summons had been served upon him, and asking for directions. W. K. Faust, manager of the claim department, and Edward A. Kirk, his assistant, both said that they did not talk to Korch about any summons. Kirk testified that there were four inside men and seven women in the claim department. Faust stated that only he and Kirk handled matters in suit, and that two other men in the department handled matters of compensation. Thus, in addition to the four inside men in the office, there were seven or eight women, including the switchboard operator. None of these was produced at the hearing, and nothing was said by either Kirk or Faust as to who was authorized to receive any emergency calls in case neither of them was available.

The garnishee defendant contends that Korch’s purported conversation with unidentified persons was not competent to establish waiver of paragraph E of the policy, which required that the insured should immediately forward to the company. every summons, etc. received by him. The authorities are divided on this question. Some of the cases hold that recognition of the voice of the person on the other end of the circuit is indispensable to the admission of the conversation over the telephone, but there is ample authority to support the contention that such rule is not applicable to a conversation with a business house in relation to the transaction of its affairs. Thus, in the leading case of Godair v. Ham Nat. Bank, 225 Ill. 572, the bank sued Godair Commission Company to recover the amount of two drafts drawn by one Moreland through the bank upon the company. The bank paid Moreland but the drafts were not honored by the company. The question presented was whether Godair had authorized the bank to pay the drafts drawn by Moreland. Grant, a cashier of the bank, testified that on a previous occasion Moreland had asked the bank to cash certain drafts drawn by him upon the Godair Company ; that before cashing the drafts he called up the office of the Godair Company by telephone and asked for Mr. Godair; that someone in the office answered that Godair was not in; that subsequently the commission company called back and said the party wanted by the bank was then in, and that he thereupon talked with someone connected with the Godair Company; that he inquired whether the drafts of Moreland would be paid, inasmuch as he wished to draw through the bank upon the Godair Company for a sufficient amount to pay for two or three carloads of cattle; that the party to whom he talked said the drafts would be paid; that he did not know Godair and did not recognize the voice and could not say with whom he talked. Grant’s testimony was objected to as incompetent, but the court overruled the objection and admitted the conversation, relying on Wolfe v. Missouri Pac. Ry. Co., 97 Mo. 473, 11 S. W. 49. There it was sought to introduce conversations had by telephone with some unidentified person in plaintiffs’ place of business. The court made the following observation: “The courts of justice do not ignore the great improvement in the means of intercommunication which the telephone has made. Its nature, operation and ordinary uses are facts of general scientific knowledge, of which the courts will take judicial notice as part of public cotemporary history. When a person places himself in connection with the telephone system through an instrument in his office, he thereby invites communication, in relation to his business, through that channel. Conversations so held are as admissible in evidence as personal interviews by a customer with an unknown clerk in charge of an ordinary shop would be in relation to the business there carried on. The fact that the voice at the telephone was not identified does not render the conversation inadmissible. The ruling here announced is intended to determine merely the admissibility of such conversations in such circumstances, but not the effect of such evidence after its admission. It may be entitled, in each instance, to much, or little weight in the estimation of the triers of fact, according to their views of its credibility, and of the other testimony in support, or in contradiction of it.” Similarly, in Trapp v. Rockford Elec. Co., 186 Ill. App. 379, wherein the Wolfe case was again cited with approval, a telephone conversation with an unknown person was held to be admissible, and the rule for which defendant contends ivas held inapplicable to a conversation with a business house over the telephone in relation to the business there carried on. See also Snively v. Colburn, 78 Ill. App. 93; Rogers Grain Co. v. Tanton, 136 Ill. App. 533; Delaney v. McNeil & Higgins Co., 195 Ill. App. 524; and Cohen v. Atchison, T. & S. F. Ry. Co., 198 Ill. App. 174. The rule enunciated in the Godair case has never been overruled or modified, and has generally been followed in this State. The essence of that rule is that anyone who answers a telephone call at a place of business is presumed to speak for the company in respect to the general business carried on by such company; that a business concern, by installing a telephone to be used in the transaction of its affairs, impliedly invites the public to make use of that means of communication which is thereby made an agency for the transaction of its business, and persons dealing with it by telephone have the right to assume that the one answering the telephone of the company is clothed with authority to transact the business conducted.

Defendant cites and relies on Garden City Foundry Co. v. Industrial Commission, 307 Ill. 76, and Kimbark v. Illinois Car & Equipment Co., 103 Ill. App. 632, in support of its contention that a telephone conversation with an unknoivn person is inadmissible. We find, however, that in the Kimbark case the court itself drew the distinction between the admissibility of a conversation held with an unknown clerk at defendant’s place of business, and the inadmissibility of a conversation tending to show that the speaker at the other end of the telephone was a Mr. Maris with whom plaintiff’s agent thought he was speaking but whose voice he did not know. In the Garden City case the question arose as to whether there was sufficient notice of the accident, and the court held that there was not. In both cases the person calling the company asked for a particular individual whose voice he did not recognize. Moreover, both cases were decided on the evidentiary weight of the conversations and not their admissibility. In the case at bar, however, Korch called the company and did not ask for any particular person. In other words, the crux of the differentiation, as plaintiff puts it, is that in the case at bar there was a person to company call, while in the cases cited by defendant there was a person to person call and the voice at the other end in the person to person call was unrecognized. It is also significant, as plaintiff points out in his brief, that in neither of the cases cited by defendant is any reference made to either the Godair or the Trapp case or to any of the decisions therein cited, thus indicating that the courts in those cases were dealing with an entirely different set of facts.

The authenticity of Korch’s purported telephone call is questioned but not seriously disputed. The court who heard the witness evidently believed his testimony, and his prior conduct gives credence to his recitation as to what happened on the morning of December 4 and to his diligence and good faith in co-operating with the insurance company. The day after the accident occurred Korch went to the office of the defendant and made a report. As soon as he received a letter from Doody’s lawyer he took it to the company’s office. Later when the company’s attorney requested him to appear and be interrogated, he appeared on the date requested, and although he was advised by the company’s lawyer to obtain counsel of his own, he answered all questions freely without seeking legal advice. His telephone call on December 4 was in keeping with his prior willingness to co-operate with the company, and we think it deserves the credence which the court gave it.

Defendant concedes, of course, that an insurance company may waive a condition of its policy contract providing for the forwarding of summons by the insured, and that such waiver may be made orally, but it is urged that plaintiff was unable to show that the elements of full knowledge of facts and intention to waive the policy condition were present in the case at bar. In reply to plaintiff’s query “"What facts did the company yn the case at bar lack?” defendant replies that the insurance company had no knowledge that the suit had been filed by the injured party against defendant’s insured, Anton Korch. It may be conceded that up to December 4, the company had no knowledge of the filing of such suit, but neither did Korch until he found the summons among his mail, as he states, on the preceding Saturday evening. However, Korch testified that when he talked to the first person in defendant’s place of business on the morning of December 4, he stated his name, and that he wanted to talk to somebody about a summons which he had received requiring him to he in court on that day; that when the second person answered the telephone, she first inquired “You got a summons?” and after he had answered “Yes, my name is Anton Korch,” and gave the person to whom he was speaking the number of his insurance policy, he asked her “What should I do? I am late. I should be today in Court. Would you straighten those things out? I don’t know how those things work. It is not my business”; that the girl then took his name and said that everything would be taken care of. It would seem to us that this conversation gave the company knowledge that suit had been filed, and if there was any uncertainty as to the nature and pendency of the suit, the clerks in defendant’s office should have advised Korch to bring the summons over to the company’s office forthwith. Since they failed to do so, we think the assurance given Korch that everything would be attended to, charged the company with knowledge that a suit was pending, and constituted a waiver of the requirement that summons he delivered to the company. In North American Accident Ins. Co. v. Williamson, 118 Ill. App. 670, and Clark v. Pacific Mut. Life Ins. Co., 185 Ill. App. 580, the court held that slight evidence is sufficient to establish a waiver thereof. Plaintiff’s testimony in the case at bar was sufficient to conform to this rule.

For the reasons indicated we think the finding and judgment of the circuit court should be affirmed, and it is so ordered.

Finding and judgment affirmed.

Scanlan and Sullivan, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Scanlan

license: Public Domain

text:
    Bruce Lindroth, Minor, by Alban Lindroth, Father and Next Friend, Appellant, v. Walgreen Company and Knapp-Monarch Company, Appellees.
    Gen. No. 43,011.
    Opinion filed May 29, 1946.
    Rehearing denied June 12, 1946. Released for publication June 13, 1946.
    Ryan, Sinnott & Miller, of Chicago, for appellant.

      Lord, Bissell & Kadyk, of Chicago, for certain appellee.
    Corwin D. Querrey and Joseph Harrow, both of Chicago, for certain other appellee.
   Mr. Justice Scanlan

delivered the opinion of the court.

An action brought on behalf of Bruce Lindroth, aged fourteen months at the time of the accident, against Knapp-Monarch Company, the manufacturer, and Walgreen Company, the seller, of a certain vaporizer. At the close of plaintiff’s evidence the trial judge directed a verdict for both defendants and plaintiff appeals from a judgment entered upon the verdict.

Plaintiff’s complaint alleges, in substance, that defendant, Knapp-Monarch Co., negligently manufactured and sold, with knowledge that it would ultimately be offered for safe to the general public, a “Kwikway” vaporizer which was defective in that it was likely to melt and set fire to nearby objects and thereby cause persons using it to be severely burned; that said defendant failed to provide any device or means by which the electric current used in its operation would be cut off or disconnected automatically before the vaporizer reached a temperature at which it would set fire to surrounding objects. The complaint alleges that Walgreen Company, the seller of the vaporizer, negligently breached its express warranty that the vaporizer was reasonably safe and fit for the purpose for which it was to be used and that the mother of the infant, who purchased the vaporizer, purchased it in reliance on said warranty.

Plaintiff strenuously contends that he proved a case against both defendants by direct and circumstantial evidence and that the action of the trial court in directing a verdict for defendants amounts to a miscarriage of justice.

“ ‘A motion to instruct the jury to find for the defendant is in the nature of a demurrer to the evidence, and the rule is that the evidence so demurred to, in its aspect most favorable to the plaintiff, together, with all reasonable inferences arising therefrom, must be taken most strongly in favor of the plaintiff. The evidence is not weighed, and all contradictory evidence or explanatory circumstances must be rejected. The question presented on such motion is whether there is any evidence fairly tending to prove the plaintiff’s declaration. In reviewing the action of the court of which complaint is made we do not weigh the evidence, — we can look only at that which is favorable to appellant. Yess v. Yess, 255 Ill. 414; McCune v. Reynolds, 288 id. 188; Lloyd v. Rush, 273 id. 489.’ (Hunter v. Troup, 315 Ill. 293, 296-7.) ” (Rose v. City of Chicago, 317 Ill. App. 1, 12. See, also, Mahan v. Richardson, 284 Ill. App. 493, 495; Thomason v. Chicago Motor Coach Co., 292 Ill. App. 104, 110; Wolever v. Curtiss Candy Co., 293 Ill. App. 586, 597 ; Olympia Fields Club v. Bankers Indem. Ins. Co., 325 Ill. App. 649, 656.)

Plaintiff had the right to prove his case by direct or circumstantial evidence. In criminal as well as in civil cases a verdict may be founded on circumstances alone. See Norkevich v. Atchison, T. & S. F. Ry. Co., 263 Ill. App. 1, 5, 6 (appeal denied by Supreme court, id. xiv), and cases cited therein. See, also, Gardner v. Railway Express Agency, 274 Ill. App, 626,. 631. Other cases to the same effect might be cited if it were necessary.

Observing the rules that govern us in our consideration of this appeal, we find the following facts and circumstances in evidence: Bruce Lindroth was injured on May 8, 1940. A vaporizer is a vessel heated by electricity, which is designed to direct medicated vapor in concentrated form toward the patient. The child’s mother had previously owned another vaporizer, somewhat smaller than the “Kwikway” vaporizer and of a different model, which had a cut-off or safety device which automatically disconnected the current when it became too hot, thus preventing overheating, with its attendant dangers. This vaporizer had been broken and the mother decided' to buy another in order to treat the child, who had a cold. She went to her local Walgreen store and asked for a vaporizer, and the clerk showed her one. The vaporizer was in a cardboard box, which the clerk opened. The mother (hereinafter called Mrs. Lindroth) stated that she had never heard of the “Kwikway” brand and asked the clerk if there was a “shut-off” on it. The clerk told her that it had no shut-off, but that the vaporizer “is good for about two hours.” “It holds enough water, it can’t boil down.” Mrs. Lindroth then asked the clerk: “ ‘Well, are you sure it doesn’t have to be watched all the time.’ I said, ‘I have one at home that has an automatic shut-off on it, and I have never had any trouble with it. Will this be safe to leave?’ She said, ‘Yes, I am sure it is safe for at least two hours.’ ” Mrs. Lindroth testified that she bought the vaporizer because she relied upon the statements made by the clerk; that after returning home she took Bruce into the bathroom, sponged him off, and rubbed him with camphorated oil; that before doing this she opened the box containing the vaporizer, read the directions, and tested the vaporizer. On the outside of the carton in which the vaporizer was packed appeared the words: “Quick, safe, no-flame, electrical.” A circular containing directions was packed with the vaporizer and Mrs. Lindroth read it before she used the vaporizer. In the circular appears, inter alia, the following: “No danger from flame.” After bathing Bruce Mrs. Lindroth put him to bed clad in a “snuggle bunny,” a garment which fastened around the baby and was made fast to the bed. Mrs. Lindroth set the vaporizer on a stool, or doll’s high-chair, which was alongside the bed and about two feet distant from it. She then applied some medicine on the cotton pad in the spout, put the top on the vaporizer, having already filled the vaporizer with warm water up to an inch or an inch and a half from the top, in accordance with the written directions, and then connected the vaporizer with the electric current. She stood there until the vapor was coming out of the spout, saw that it was pointed in the right direction, and then left the room. After performing some household duties downstairs she went upstairs to the room where Bruce was, saw that he had just finished his orange juice and was turning over on his stomach to go to sleep. The vaporizer was then working all right. She then went downstairs and performed some household duties and talked with a Mrs. Kays, a friend. About forty-five minutes after the time that she had looked into the bedroom and saw that everything was all right, a neighbor ran over to the Lindroth home and told her that there was smoke coming out of the bedroom upstairs. Mrs. Lindroth rushed upstairs, opened the bedroom door, and discovered the bedroom in flames. The stool, or high-chair, on which the vaporizer stood was partly burned, the curtains in the room were burning, also the bed clothing, the crib and the “snuggle bunny.” Plaintiff’s evidence also tended to prove that within the forty-five minutes that elapsed from the time the current was applied until the fire was discovered a considerable part of the vaporizer had burned or melted away. On the bottom of the vaporizer several patent numbers appear: “Pat. Nos. 1,976,939 2,061,148.” Plaintiff introduced in evidence as an exhibit a certified copy of letters patent issued by the United States Patent Office on November 17,1936, to Knapp-Monarch Company. The certificate of the Commissioner of Patents certifies: “This Is To Certify that the annexed is a true copy from the records of this office of-the Letters Patent of William H. Fischer, assignor to Knapp-Monarch Company, Number 2,061,148, Granted November 17, 1936, for Improvement in Vaporizers.” (Italics ours.) Attached to the certificate is a copy of the application for the proposed improvement to the vaporizer. The certificate shows that this application was filed by “William II. Fischer, St. Lonis, Mo., assignor to Knapp-Monarch Company, St. Louis, Mo., a corporation of Missouri.” Attached to the application is a drawing of the proposed vaporizer and specifications in reference to the same, the drawing showing the proposed cutout. The application contains, inter alia, the following:

“When the water W in the receptacle 12 has been completely vaporized, there is danger of overheating and damaging the heating element H. I therefore provide a thermal cutout comprising contact springs 66 and 68. These are mounted on and insulated from brackets 70 and 72 respectively which are secured to the bottom plate 20 and project upwardly therefrom. The spring 68 is of bimetal so that upon its being heated to a predetermined temperature it will warp to the dotted line position in Figure 3, thus releasing the spring 66 and allowing it to assume its dotted position, thus breaking the circuit between the free ends of the springs 66 and 68. The springs, it will be noted by referring to Figure 6, are included in series circuit with the heating element H whereby energization thereof is discontinued when the thermal cutout trips.

“The element 76 is a stop for limiting excessive movement of the button 76 inwardly. The thermal cutout is set so as to trip when the heating element II attains a temperature somewhat above the boiling-point of the water so that after the water has boiled away and the heating element becomes excessively heated, it will be de-energized by the thermal cutout tripping, but the thermal cutout will not trip as long as water remains in the receptacle 12 and thereby keeps the temperature of the heating element sufficiently low. ’ ’

Wilder A. Chapman, manager of the laboratories of the Eobert W. Hunt Company, testing engineers, and a man of wide experience in testing materials and devices of all sorts, testified for plaintiff. He stated that he was familiar with vaporizers that are used to give off vapors or. fumes used in the household for- the purpose of treating colds or bronchitis or asthma or diseases of the throat and lungs; that he was familiar with the type of vaporizer known as Knapp-Monarch Kwikway; that a thermal cutout is a device which, by expansion, will break an electrical circuit, that the purpose is to prevent overheating of an electrically operated device; that such a device has been known to the trade for a considerable number of years before 1936; that such a device is practical in installation; that thermal electric cutouts have been' used for a good many years in a variety of appliances; that “I have used them for many years in preventing overheating of laboratory ovens which are left unattended for a considerable period of time. They are used in electric flatirons. They are used in refrigerators. And very commonly used in electrical devices to prevent overheating. From my own observation, they do prevent overheating, and they do function properly. There are a number of types of cut-outs. One very common type consists of two strips of dissimilar metals which, by expansion, are made to separate, and thereby break the circuit. . . . It is a simple attachment, a simple device, this cut-out. . . . The only time that it operates is when the water is all out of the vaporizer.”

We find nothing in the record to indicate the reason or basis for the trial court’s action in directing verdicts for defendants and after a careful consideration of all the facts and circumstances we are at a loss to understand upon what theory of fact or law the trial court based its ruling. Defendants are represented in this court by able and experienced counsel, and we have carefully considered the points raised by them in support of the trial court’s action. In the briefs of defendants they have not always adhered to the settled rules that govern a motion for a directed verdict. They draw inferences from certain evidence and claim that the inferences are reasonable. These inferences are inconsistent with the inferences drawn by plaintiff from the same evidence, and defendants argue, apparently, that if their inferences are reasonable, plaintiff’s inferences, even though they be reasonable, should have no weight. In Turner v. Cummings, 319 Ill. App. 225, the First Division of this court held that the trial court erred in directing a verdict in that case. Mr. Justice McSttkely, in a supplemental opinion on rehearing, states (pp. 228, 229):

“In the petition for rehearing filed by the receivers of the streetcar company, it is also said ‘It is fundamental that an inference cannot be drawn from a fact or state of facts when an inconsistent inference may as readily be drawn from the same facts or state of facts.’ There are some decisions of this court and probably others where this has been stated, but it is not the law. As we said in Plodzien v. Segool, 314 Ill. App. 40, the law is that where ‘uncertainty arises as to the inferences that may legitimately be drawn from the evidence so that fair-minded men may honestly draw different conclusions, the question is not one of law but one of fact to be settled by the jury. Denny v. Goldblatt, 298 Ill. App. 325; Chicago & N. W. Ry. Co. v. Hansen, 166 Ill. 623; Moore v. Rosenmond, 238 N. Y. 356; Kavale v. Morton Salt Co., 242 Ill. App. 205; Norris v. Illinois Central R. Co., 88 Ill. App. 614; Richmond & Danville R. Co. v. Powers, 149 U. S. 43; Cunning v. Cooley, 281 U. S. 90; Best v. District of Columbia, 291 U. S. 411.’ See also Reilly v. Peterson Furniture Co., 314 Ill. App. 46. Note the language of Judge Pound in the Moore case, and of Chief Justice Hughes in the Best case.” Counsel for defendants sometimes cite a certain statement of a witness and argue, apparently, that plaintiff is bound by such statement even though other and different statements were made by the witness. They sometimes resort to arguments that would be applicable if the question before us related to the weight of the evidence.

We will first take up the points urged by defendant Walgreen Company in support of the action of the trial court as to it: It contends that the complaint did not allege a breach of express warranty by Walgreen Company and that plaintiff did not rely upon such a warranty in the trial court and cannot change his theory in this court. We find no merit in this contention. Moreover, the sufficiency of the allegations of a breach of express warranty was not raised by it upon the trial, nor did it make any objection, based upon the point now raised, to the evidence introduced by plaintiff in support of the express warranty. The position of this defendant, upon the trial, was that the statements made by its saleslady were mere expressions of opinion. Had Walgreen Company upon the trial raised the point it now urges, plaintiff would have had an opportunity to amend the complaint, if "his counsel deemed it necessary to do so.-

Walgreen Company next contends: “A motion to direct a verdict should be allowed if, when all the evidence is considered, with all reasonable inferences to be drawn therefrom in .its aspect most favorable to the party against whom the motion is directed, there is a total failure to prove one or more necessary elements of the case.” That this contention states a correct rule of law is not disputed. It is contended that Mrs. Lindroth knew that the vaporizer she bought did not contain an automatic shut-off. If all that the sales clerk told Mrs. Lindroth about the vaporizer was that it had no shut-off a different case would be presented to us, but the saleslady made other and material statements, which we have heretofore stated. Walgreen Company then argues that these statements of the sales clerk were mere expressions of her opinion and not a warranty. We will refer to this argument later.

The correctness of Walgreen Company’s next contention, that plaintiff offered direct evidence tending to show how Bruce’s injuries occurred and therefore there is no room for the application of the doctrine of res ipsa loquitur in the-instant case, may be conceded, but plaintiff is not obliged to rely upon that doctrine in order to make out a case against defendants.

The next contention of Walgreen Company, that it “was not the manufacturer of the vaporizer and was not liable for its design or construction,” is not disputed.

' Walgreen Company next contends that “the statements attributed to the clerk in the drug store at most amounted to a mere expression of opinion and did not constitute a warranty.” In support of this contention defendant cites only a part of Section 12, ch. 121½, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 121.16]. That section reads as follows:

“12. Definition of express warranty.] Sec. 12.' Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a statement of the seller’s opinion only shall be construed as a warranty.”

We cannot agree with the contention that all of the statements made by the saleslady purported to be a mere expression of her opinion. The saleslady stated that the vaporizer “is good for about two hours.” “It holds enough water, it can’t boil down.” These statements were direct and,positive assertions. Walgreen Company strongly relies upon the fact that Mrs. Lindroth inquired of the clerk: “Have you any proof of that? What makes you say that?” to which the clerk replied that Dr. Pasco had one in his office and used it for patients when they had congestion and recommends it for them to use at home, and defendant argues that this evidence shows that Mrs. Lindroth was relying upon statements that amounted to expressions of opinion. But in another part of her examination she testified that in purchasing the vaporizer she relied upon the statements made by the saleslady. Walgreen Company’s contention is based upon the assumption that if it can show certain statements of Mrs. Lindroth from which inferences favorable to it may be reasonably drawn the evidence in her favor must be rejected. It would seem hardly necessary to state that this assumption of defendant is an erroneous one. All contradictory statements, if there be any, in her evidence must be rejected upon a motion to direct a verdict.

The law bearing upon the question as to what constitutes a warranty is well settled in this State. To cite a late case, Beckett v. F. W. Woolworth Co., 376 Ill. 470, 474: “It is established that no particular words or forms of expression are necessary to create an express warranty. A positive assertion of a matter of fact made by a seller at the time of the sale, for the purpose of assuring the buyer of the fact and inducing him to make the purchase, if relied on by the purchaser, constitutes a warranty. (MacAndrews & Forbes Co. v. Mechanical Manf. Co., 367 Ill. 288; Van Horn v. Stautz, 297 id. 530; Thorne v. McVeagh, 75 id. 81.)”

Walgreen Company next contends that “the .court properly directed a verdict for defendant Walgreen Company for the further reason that there was no proof that defendant’s clerk had authority to make any such express warranty as plaintiff claims was made by the clerk and no authority to make any such express warranty can be implied.” There is force in plaintiff’s argument that the instant contention, raised by a large retail business concern, shows how far that defendant will go to avoid responsibility in this case. Plaintiff is not, of course, bound by any secret arrangement between defendant Walgreen Company and its agent, the saleslady. As to the latter’s authority to warrant merchandise, defendant is bound by the apparent scope of the' agent’s authority in its dealings with the public. See Eckhart Carriage Co. v. Eden, 163 Ill. App. 552, 554; Mulhern v. Public Auto Parks, Inc., 296 Ill. App. 238, 243. In this last case the court stated (p. 243): “It was not necessary for plaintiff to prove actual authority. Defendant was as to plaintiff bound by the apparent authority of the attendant. In the absence of evidence tending to show the lack of authority every possible inference and intendment is in plaintiff’s favor. The principal is just as much bound by authority, which through his acts he appears to give, as by that which has actually been given. (Nash v. Classen, 163 Ill. 409.) The scope of an agent’s authority may be shown as well by circumstances as by proof of express authority. (Springfield Engine & Threshing Co. v. Green, 25 Ill. App. 106, 110.) ” In Smith v. Denholm & McKay Co., 288 Mass. 234, the plaintiff bought a jar of a preparation to be applied externally for the removal of hair. The defendant’s saleswoman, in order to induce the purchase, stated that it was less painful than another brand, and was safe and harmless to use. Plaintiff developed thallium acetate poisoning from its use and brought an action against the defendant relying upon a breach of an express warranty. The trial court found that defendant’s saleswoman had made affirmations of fact amounting to an express warranty and that the plaintiff had been induced by them to make the purchase; that although the saleswoman had been instructed not to warrant goods sold by the defendant, she nevertheless had apparent authority to do so. The Supreme court sustained the trial court’s findings that she did have such apparent authority. Bruns v. Jordan Marsh Co., 305 Mass. 437, 26 N. E. 2d 368, was an action against the defendant for injuries sustained when the heel became detached from a shoe purchased at the defendant’s store. There the court said (p. 372):

“The jury could find that the plaintiff took the shoes from the table to ascertain whether they were the correct size for her and to learn from the salesman whether they were durable, sensible and substantial; and that their selection did not become final until after they had been fitted and after she had talked with the clerk concerning their being substantial. There was evidence that the plaintiff had such a conversation with the salesman. This conversation was a part of the transaction which began with taking the shoes from the display table, the fitting of them by the clerk to the plaintiff who wanted to see not only if they were the right size hut also if they were durable and substantial, and their purchase by the plaintiff. Upon such a background it was a permissible inference for the jury to draw that, before their purchase, the plaintiff had inquired of the clerk whether the shoes were durable and substantial; and the jury could further infer that he had informed her that they were, in view of the fact that she finally decided to purchase them. It was a question of fact whether such statements induced the plaintiff to purchase the shoes.' There was sufficient evidence to warrant a finding that the salesman had implied authority to answer such inquiries of a customer who was contemplating the purchase of goods and that such statements of the clerk would bind the defendant. Idzykowski v. Jordan Marsh Co., 279 Mass. 163, 181 N. E. 172; Smith v. Denholm & McKay Co., 288 Mass. 234, 192 N. E. 631.” Idzykowski v. Jordan Marsh Co., 279 Mass. 163, was a case where the defendant’s salesgirl sold a white shoe cleaner to the plaintiff, saying that it was so harmless that it would not irritate the most delicate skin, that it should be applied with a sponge or cloth, and that it was a very safe substance. The Supreme court assumed that the saleslady had implied authority to make these statements because such authority was reasonably necessary to effect sales of articles like the one sold to the plaintiff, and stated that on the facts there was an implied as well as an express warranty that the cleaner was free from irritating and dangerous chemicals that would make its use unsafe. See, also, Miller v. Economy Co., 228 Iowa 626; Hercules Powder Co. v. Rich, 3 F. 2d 12. Many other cases to the same effect might be cited if it were necessary.

Walgreen Company next contends that “the plaintiff cannot maintain an action on a supposed express warranty to some person other than himself where he was not a party to the transaction. ’ ’ In support of this contention defendant states: “There is no pretense that the plaintiff purchased the subject vaporizer or that any statement with reference to it was made to him. On the contrary, the truth is that plaintiff’s mother, Mrs. Lindroth, purchased the vaporizer and whatever transactions were had were between her and the clerk in the drug store”; that “no contractual relation existed between the plaintiff and the Walgreen Company.” This contention does not appeal to our sense of justice. The suit was brought for the benefit of an infant fourteen months old, who, of course, was unable to enter into any contract. The father is a nominal plaintiff. Mrs. Lindroth stated to the clerk that she was purchasing the vaporizer to treat her child, who had a cold. Defendant cites no case in support of its contention in which the facts were similar to the facts in the instant case. It would be a reflection upon the administration of justice, if the instant contention were sustained, and we feel impelled to state that it is surprising that Walgreen Company, serving the people of Chicago in many stores, should have seen fit to advance such a defense.

After a careful consideration of the contentions raised by defendant Walgreen Company in support of the action of the trial court we are satisfied that the court committed reversible error in directing a verdict for Walgreen Company.

We will next consider the points made by Knapp-Monarch Company in support of its contention that the trial court did not err in directing a verdict for it:

Its first contention is that the doctrine of ‘ ‘ res ipsa loquitur is not applicable.” We have already held, in passing upon the same contention raised by Walgreen Company, that that doctrine does not apply to the facts of the instant case.

Knapp-Monarch Company next contends that “there was no circumstantial evidence from which it could have been reasonably inferred that the vaporizer was defective.” In support of this contention the defendant argues that “there was no evidence that the vaporizer melted and caused the fire,” and it makes the surprising statement that there is no evidence in the record to rebut a reasonable inference that a fire occurred in the room, not caused by the vaporizer, and that the burnt and melted condition of the vaporizer was “solely attributable to the fire.” It is difficult to assume that this argument is seriously made. It is idle to argue that there are no facts or circumstances in the case from which a jury might reasonably infer that the fire was caused by the vaporizer. Walgreen Company admits that the overheating of the vaporizer caused the fire, but it insists that that result “was caused entirely by the exhaustion of water in the vaporizer. ’ ’

Defendant next contends that the evidence does not support the claim of plaintiff that the vaporizer without a cutout was defective. The admission made in the application to the Patent Office, that when the water in the vaporizer had been completely vaporized there is danger of overheating and damaging the heating element unless the thermal cutout is used upon the vaporizer, is certainly evidence sufficient to make out a prima facie showing that the vaporizer was imminently dangerous, and that the result that followed at the time and place in question might reasonably have been anticipated by the manufacturer. The testimony of Mr. Chapman strongly supports the theory of fact of plaintiff that the vaporizer was imminently dangerous. In this connection it must be noted that the application to the Patent Office was made on July 16, 1935, -and the patent was granted November 17, 1936. The accident happened May 8,1940. Mr. Chapman testified that the cutout had been known to the trade for a considerable number of years before 1936. The jury also had a right to consider the condition of the vaporizer in passing upon the question as to whether or not it was imminently dangerous. Defendant contends that it is not bound by the admission made by William Fischer in the application to the Patent Office. There is no force in this contention. The records of the Patent Office show that the patent was assigned by Fischer, the inventor, to Knapp-Monarch Company and that the patent issued to defendant instead of to Fischer. Indeed, the certificate of the Patent Office shows that the application was made by “William H. Fischer, St. Louis, Mo., assignor to Knapp-Monarch Company.” Defendant took out the patent that was based upon the application and is bound by the statements made in the application. We find no merit in the argument of defendant that “there was no circumstantial evidence from which it could have been reasonably inferred that the vaporizer was defective.” In this connection it must be noted that the vaporizer burned out, exploded or melted upon its first usage and within forty-five minutes after it was set in operation. The vaporizer, in the condition that it was in after the fire, is before us, and we have noted its melted down and partially destroyed condition.

Defendant next contends that “there can be no express warranty between a manufacturer and buyer.” On the carton of the box appeared the following: “The Kwikway to Medicated Vapors, recommended by physicians. Quick, safe, no flame, electrical, non-rusting, easily cleaned, always ready”, and on the cover of the directions appeared the following: “All metal — unbreakable. Medicated liquid is placed in separate cup. Does not corrode inside of Vaporizer. Aluminum — will not rust. Cool wooden handle. Heats quickly, embedded genuine Niehrome element for long life. Directional, detachable spout. No danger from flame. Very economical to operate.” In support of this contention the defendant again uses the argument that “there is no evidence that there were any flames from the vaporizer.” Defendant argues that “assuming that the statements on the carton and in the circulars are warranties, which we deny, there can be no express warranty unless there is a contract between the parties.” Defendant concedes that there are authorities that do not support its contention, but insists that the weight of authorities is in favor of the contention. It concedes that “the manufacturer can be held, if at all, only where the wrongful act of the person sought to be held consists of a fraudulent or deceitful statement or representation. Here, plaintiff’s counsel nowhere suggests a fraudulent statement, which would sustain an action for deceit. (Davidson v. Montgomery Ward, 171 Ill. App. 355; Chanin v. Chevrolet Motor, 89 Fed. (2nd) 889.) ” Defendant concedes that Mr. Justice MoSurely correctly stated the law in Miller v. Sears, Roebuck & Co. of Illinois, 250 Ill. App. 340, 344, wherein he said:

“Both parties rely in this court upon the decision in Davidson v. Montgomery Ward & Co., 171 Ill. App. 355, where it was held that a vendor is not liable to third parties who have no contractual relation to him. This case held properly that there were three exceptions to this general rule of liability: (1) Where the act of negligence of the person sought to be held liable is with reference to some article imminently dangerous; (2) where the act of negligence consists in the manufacture or sale of an article defective in construction; and (3) where the act of negligence of the person sought to be held consists of a fraudulent or deceitful statement or representation.”

In the late case of Wintersteen v. Nat. Cooperage Co., 361 Ill. 95, the court said (p. 103):

“The contention is made by the defendant that it ■owed no duty of due care to the plaintiff, inasmuch as there was no contract between the plaintiff and the defendant. It is axiomatic that every person owes a duty to all persons to exercise ordinary care to guard against any injury which may naturally flow as a reasonably probable and foreseeable consequence of his act, and the law is presumed to furnish a remedy for the redress of every wrong. This duty to exercise ordinary care to avoid injury to another does not depend upon contract, privity of interest or the proximity of relationship between the parties. It extends to remote and unknown persons. Colbert v. Holland Furnace Co., 333 Ill. 78; Baird v. Shipman, 132 id. 16.”

It will be noted that one of the exceptions to the general rule that a vendor is not liable to third parties who have no contractual relationship to him is where the act of negligence of the person sought to be held liable is with reference to some article imminently dangerous. We hold that plaintiff made out a prima facie case showing that the vaporizer was an article imminently dangerous.

After a careful consideration of the questions involved we have reached the conclusion that plaintiff made out a prima facie case against Knapp-Monarch Company and that the trial court erred in directing a verdict in its favor.

The judgment order of the Superior court of Cook county entered October 8, 1943, is reversed in toto, and the cause is remanded for a new trial as to both defendants.

Judgment order reversed in toto and cause remanded for a new trial as to both defendants.

Friend, P. J., and Sullivan, J., concur.


text:
    Everett F. Greimann, Appellant, v. Travelers Insurance Company, Appellee.
    Gen. No. 43,473.
    Opinion filed May 29, 1946.
    Released for publication June 13, 1946.
    Benjamin H. Vanderveld, of Chicago, for appellant.

      Kirkland, Fleming, Green, Martin & Ellis, of Chicago, for appellee; David Jacker, Charles R. Morrow and Charles M. Rush, all of Chicago, of counsel.
   Mr. Justice Scanlan

delivered the opinion of the court.-

Plaintiff sued defendant upon two insurance certificates issued to him by defendant. The parties, by stipulation, submitted the cause to the court, who, after hearing the evidence and the arguments of counsel, found the issues against plaintiff, and he appeals from a judgment entered upon the finding.

The report of the trial proceedings contains the following “Statement of Facts”:

“That on to-wit, July 10th-1929, the plaintiff, Everett Greinmann, was employed by the Edison Electric Appliance Co., Inc., which company had at that time a master group insurance contract with the defendant, The Travelers Insurance Company, to insure its employees under a contract of insurance known as Group Contract No. G682.

“On July 10th-1929, there was issued to plaintiff by defendant an individual policy of insurance for $500.00, certificate #9539, and later on November 2nd-1937, an additional certificate #9539X, for $2000.00 was issued to him, subject to the conditions of said master-contract, copy of which is hereto attached as Exhibit 3. In 1939 by automatic increases the insurance value of said policies attained a face value of $3600.00. Said policies are attached to this statement of facts as plaintiff’s Exhibits 1 and 2.

“Both policies contained a provision as to Permanent Total Disability Benefits, which provisions as stated in Exhibit 1 read as follows:

“ ‘If any Employee shall furnish the Company with due proof that while insured under this contract and before having attained the age of sixty, he has become wholly disabled by bodily injuries or disease, and will be permanently, continuously and wholly prevented, thereby for life from engaging in any occupation or employment■ for wage or profit, the Company will waive further payment of premium as to such Employee and pay in full settlement of all obligations to him under this contract the amount of insurance in force hereunder upon his life at the time of the receipt of due proofs of such disability, in a fixed number of instalments chosen by the Assured, the first instalment to be paid immediately upon receipt of due proofs of such disability. Any instalments remaining unpaid at the death of the Employee shall be payable as they become due to the beneficiary designated by such Employee. Such remaining instalments may be commuted into one sum on the. basis of interest at the rate of three and one-half per cent, per annum. [Italics ours.]

“ ‘In addition to and independently of all other causes of permanent and total disability the Company will consider the entire and irrecoverable loss of the sight of both eyes, or of the use of both hands, or of both feet, or of one hand and one foot, as permanent total disability within the meaning of this contract. ’

“The foregoing provision is identical with that as contained in Exhibit 2, with the exception, that the provision as to a choice as to the number of installments, is eliminated.

“On February 20th-1939, the plaintiff, Everett F. Greinmann, while in the employ of the Edison Electric Appliance Co., Inc., and while under the age of 60 years, became mentally ill, and on February 20th-1939 was adjudged insane and duly committed to the Alton State Hospital, Alton,- Illinois; and on October 16th-1940, Kathleen Greinmann, his wife, was duly appointed as his Conservatrix in the Probate Court of Cook County, Illinois.

“The defendant, The Travelers Insurance Company, was advised of plaintiff’s disability on or about July 9th-1940, and formal proof was made by the conserva-trix. On October 31st-1940 the Insurance Company made a payment to the Conservatrix,. on account, of said permanent disability of $587.99, the same being initial installment of $500.00, and $87.99 as the first of a series of monthly installments of like amount. Said installment payments were made until the sum of approximately $2400 was paid, leaving a balance of $1143.87 unpaid, said sum being the subject matter of this suit.

“That prior to said initial payment, the Conserva-trix, without leave of the Probate Court being first obtained, executed an agreement with the defendant that the monthly payments would be discontinued if at any time the plaintiff was sufficiently recovered so as to enable him to resume gainful occupation, copy of which is hereto attached as Exhibit 4.

“On March 7th-1941 the plaintiff was paroled from the Alton State Hospital, and on July lst-1941 was discharged as having been restored to sanity.

‘ ‘ Payments were continued, however, by the defendant until the month of September, 1942, when it ceased to make any further payments because plaintiff was and had been working at a gainful occupation since June of 1942. The estate was then closed in the Probate Court on December 9th-1942, and the Conserva-trix was discharged.

‘1 It was stipulated by and between the parties herein that the Plaintiff resumed working at a gainful occupation in June of 1942 and had continued to be engaged in a gainful occupation of employment up to the trial date.

“Suit was brought for the unpaid balance in the Municipal Court of Chicago, and from a judgment for the defendant, this appeal is made.”

Plaintiff’s theory is “that upon his being adjudged insane, he became permanently disabled under the provisions of the policies, and that after having made proper proof of said disability, and the same haying been accepted by the defendant, he became entitled to the full face amount of the certificates, and the only question to be determined was the number of installments and amount of each. That his subsequent restoration to reason, did not release the defendant from further payment of the installments, the liability having been once determined and fixed according to the terms of the contract.”

Defendant’s theory is: “Defendant’s principal contention is that under the terms of its insurance contract it was not liable to make any further payments to plaintiff when it became evident that his disability was not permanent; . . . that the basic requirement of permanency is not changed or waived by its commencing payments for an apparent permanent disability which later turns out to be temporary. Benefits paid by defendant for approximately two years were made under a state of facts existing then. Although subsequent recovery of plaintiff caused defendant to cease these payments, defendant is not seeking to recover the payments voluntarily made and makes no claim nor will assert any claim to recover them.”

Plaintiff, in support of his position, cites Hanon v. Kansas City Life Ins. Co., 269 Ill. App. 135. There it appeared that John Hanon was found to be insane on December 22, 1927, and was sent to the State Hospital for the Insane at Jacksonville, Illinois, where he remained for about six months, when he was discharged on parole and returned to his home on a farm where he died January 20, 1931. The Appellate court stated (p. 138): “Two questions of mixed law and fact are presented for determination: (1) Was there such a total permanent disability caused by bodily disease that continuously and wholly prevented him for life from pursuing any and all gainful occupations; (2) whether proof of such disability was received by the company?” After reviewing the evidence the court held (p. 144): “Our conclusion is that John Hanon was, during his period of insanity, of total permanent disability caused by disease and was continuously and wholly prevented thereby for life from pursuing any and all gainful occupations under the proofs as established by the evidence in this case.” (Italics ours.) The court further held (p. 143): “The judgment of the county court finding him to be insane has never been vacated and his natural condition as a person sui juris had never been restored. The presumption is that after a person has been adjudicated to be insane, the insanity continues, and the burden is upon anyone who asserts the contrary to prove it. ’ ’ Hanon had maniacal spells and he was shot and killed by his brother-in-law to prevent him from killing his wife. In the instant case the plaintiff was on July 1, 1941, “discharged as having been restored to sanity,” and it was stipulated by the parties “that the plaintiff resumed working at a gainful occupation in June of 1942 and had continued to be engaged in a gainful occupation of employment up to,the trial date.” We deem it necessary to notice only three of the other cases cited by plaintiff, viz: Ehrenreich v. Massachusetts Ins. Co., 305 Ill. App. 584; Ginsburg v. Prudential Ins. Co., 294 Ill. App. 324; Heralds of Liberty v. Jones, 142 Miss. 735, 107 So. 519. The Ehrenreich case was decided by this Division of the court. There the plaintiff was not attempting to recover payments after he had recovered from his physical disabilities. The contract in that case provided (pp. 585, 586):

“If the insured, before default in the payment of any premium under this policy and before the anniversary of the policy on which his age at nearest birthday is 65 years, shall furnish due proof to the Company at its Home Office that he has become wholly and permanently disabled so that he is and will be permanently, continuously and wholly prevented thereby from performing any work or engaging in any occupation for compensation or profit, the Company will

“ (1) waive the payment of all premiums becoming due under this policy after the expiration of the then current policy year; and

“(2) pay to the insured one per cent, of the face of this policy, exclusive of any paid-up additions, and a like amount each month thereafter during the continuance of said total disability of the insured.

££

“Provided that, notwithstanding proof of disability may have been accepted by the Company as satisfactory, the insured shall at any time, on demand, furnish due proof to the Company of the continuance of such disability, and if the insured shall fail to furnish such proof all premiums thereafter falling due must be paid in conformity with the conditions of this policy, and the annuity payments shall cease. . . .”

We held that the claim filed by the plaintiff and the statement of his attending physician in support of the claim did not make out a,prima facie showing that the plaintiff was totally and permanently disabled within the meaning of the insurance contract. We further held that the plaintiff’s proof showed that he was not wholly and permanently disabled and that he had been performing the duties of his position for approximately fourteen months before the trial. We reversed the judgment of the trial court awarding the plaintiff damages in the sum of $593.25. As to Ginsburg v. Prudential Ins. Co., supra, it is sufficient, for the purposes of this appeal, to state that the plaintiff therein was asking to recover only for the time that he was totally disabled, which disability ended October 1, 1935, and the court held that the proof clearly showed that the plaintiff’s total disability continued until that time, and that he was entitled to a judgment for the instalments that were due during the period of his total disability. Plaintiff relies very strongly upon the case of Heralds of Liberty v. Jones, supra, but in that case there was a clause in the contract that provided for a lump sum disability payment and not for payments in instalments. The contract also contained the following clause (p. 519): “ . . . Without prejudice to any other provision, such total disability shall be presumed to be permanent after the member has been continuously so disabled for not less than six months and during all that period incapacitated from engaging in any occupation for remuneration or profit.” The decision of the court was based upon this last clause. In the instant case the contract provides for payments in instalments and it contains no presumption provision. No case is cited by plaintiff that supports his position.

Defendant cites Paul v. Missouri State Life Ins. Co., 228 Mo. App. 124, 52 S. W. (2d) 437, in support of its position. The following are the material portions of the policy sued upon in that case (p. 437):

“ ‘If the Employee shall furnish the Company due proof that before having attained the age of sixty years, he or she has become totally and permanently disabled by bodily injury or disease, and that he or she is then, and will be at all times thereafter, wholly prevented thereby from engaging in any gainful occupation, and that he or she has been so permanently and totally disabled for a period of six months, the Company will immediately pay to the Employee in full settlement of all obligations hereunder, the amount of insurance in force hereunder on the Employee at the time of the approval by the Company of the proofs as aforesaid. . . ”

The insured in that case elected to take the one sum settlement. It appeared from the agreed statement of facts that the plaintiff was injured about December 19, 1928, while engaged in his duties as an employee of the Missouri Pacific Railroad Company and that as a result of the injuries he was confined in the hospital or under the control of the Missouri Pacific Hospital and under the care of doctors and physicians from the date of the accident until about June 15, 1930; that during all of said time he was unable to pursue any gainful occupation for a period of eighteen months and that at the expiration of six months after the accident his disability was of such a character that the physicians were unable to tell how long.the disability would continue. The plaintiff sued to recover the sum of $2,000 payable under the contract. On June 15, 1930, plaintiff resumed his work as a boiler maker helper for the Missouri Pacific Railroad and since that time has been so engaged and employed. The defendant refused to pay any sum and denied liability under the contract. The court in the Paul case distinguishes the Heralds of Liberty case, saying (p. 439):

“The case is also unlike that of Heralds of Liberty v. Jones, 142 Miss. 735, 107 So. 519. In that case the policy provided that if a member should become totally and permanently disabled and such disablement should continue for six months, it would be presumed to be permanent. It was held in that case that plaintiff was entitled to payment for total disability, although he recovered after the expiration of the six months’ period. Of course, there is nothing in the language in the policy now under discussion similar to that in the Jones Case.”

After a review of the authorities and the law bearing upon the question before the court, the opinion states (p. 441):

“ ‘In insurance parlance the phrase “totally and permanently disabled” contemplates a physical condition at the time of the claim which reasonably convinces the judging authorities that (a) the subject is then totally disabled, and (b) will so remain for life.’ Metropolitan Life Ins. Co. v. Noe, supra, 161 Tenn. 335, 31 S. W. (2d) loc. cit. 690. (Italics ours.)

“Being of the opinion that the plaintiff failed to show that at the end of the six months’ period in question he had suffered a permanent disability, that is, one that would be reasonably certain to continue during life, he was not entitled to recover and the judgment should be affirmed. It is so ordered.”

The concurring opinion states (p. 442):

“But how can it [referring to the plaintiff’s injury], or the condition produced thereby, be presumed to continue indefinitely, when there, before the court, stands the man in full health and vigor and with complete ability to work, showing that it has not continued and will not continue indefinitely, but has come to an end before the suit was brought?

“To hold that plaintiff, in such circumstances, is entitled to recover is to ignore entirely the clause requiring that the insured shall furnish the company with ‘due proof that before having attained the age of sixty years, he or she has become totally and permanently disabled by bodily injury or disease, and that he or she is then, and will be at all times thereafter, wholly prevented thereby from engaging in any gainful occupation.’” The "judgment for the defendant entered by the trial court was affirmed. In Tila v. Travelers Ins. Co., 55 N. Y. S. 2d 401, the policy provided for payment of benefits upon due proof that “the insured has become wholly disabled by bodily injuries or disease and will be continuously and wholly prevented thereby for life from engaging in any occupation or employment for wage or profit. ’ ’ This provision is identical with the one present in the instant case. In that case it appeared that the insured was adjudged an incompetent and sent to the State Hospital ; that about six years after he was sent there he was paroled and was gainfully employed as a farm hand, and his committee sought to recover benefits under the policy for the period during such employment. The opinion of the court is short, and we quote it in full (p. 402):

“Per Curiam.

“The undisputed facts submitted in support of the motion for summary judgment establishes that the insured was not disabled from engaging in gainful occupation during the period for which disability benefits are sought. The insured was profitably employed during the period as a farm hand, performing to the satisfaction of his employers all of the duties attending such employment. The adjudication of the insured as an incompetent in 1936, is not determinative of the issue of his competency in 1943. Pickup, as Committee, v. Traveler’s Ins. Co., No. 702, November, 1940, Term. The evidential value of the adjudication to the plaintiff was overcome by the insured’s discharge from parole and by the facts relating to his actual employment.”

Defendant contends that if it had refused to make any payments to plaintiff and the latter was now suing for disability benefits from the time he was adjudged insane until the time he sued, plaintiff would not be allowed to recover anything, because the evidence shows beyond a doubt that he ^actually never was permanently disabled, and in support of this contention defendant cites Harris v. Metropolitan Life Ins. Co., 325 Ill. App. 182, which supports the contention. However, it is not necessary for us to pass upon the instant contention for the reason that defendant states that it ‘ ‘is not seeking to recover the payments voluntarily made and makes no claim nor will assert any claim to recover them.”

Defendant’s contention that in any event it was not liable under the terms of its insurance contract to make any further payments to plaintiff when it became evident that the latter’s disability was not permanent, must be sustained. In our view of this appeal defendant has not only treated plaintiff fairly, but its conduct in making payments for fourteen months after he had been discharged from the State Hospital, restored to sanity, was generous treatment.

The judgment of the Municipal court of Chicago is affirmed.

Judgment affirmed.

Friend, P. J., and Sullivan, J., concur.


author: Mr. Justice Sullivan

text:
    Milton E. Reid and Hazel F. Reid, Trading as Milton E. Reid and Company, Appellants, v. Chicago Title and Trust Company, August A. Wilhelm and Howard B. Kerr, Appellees.
    Gen. No. 43,509.
    Opinion filed May 29, 1946.
    Released for publication June 13, 1946.

      Kinne & Scovel, of Chicago, for appellants ; Harry C. Kinne, of Chicago, of counsel.
    Seymour N. Cohen, of Chicago, for appellees.
   Mr. Justice Sullivan

delivered the opinion of the court.

This action was brought by Milton E. Reid and his wife, Hazel F. Reid, real estate brokers, doing business as Milton E. Reid & Company, against the Chicago Title and Trust Company and August A. Wilhelm, and the theory of plaintiffs’ original complaint was that they were entitled to recover commission from the Chicago Title and Trust Company because they were the efficient and procuring cause of the sale by said company to Wilhelm of an apartment building located at 1940 Sherman avenue, Evanston, Illinois. After plaintiffs’ complaint was stricken on motion of defendant Wilhelm, they filed an amended complaint against the Chicago Title and Trust Company and Wilhelm and shortly thereafter on plaintiffs’ motion Howard B. Kerr was made an additional party defendant. Summary judgment was entered in favor of the Chicago Title and Trust Company on the latter’s motion and supporting affidavits. No appeal was taken by plaintiffs from this judgment. The cause was tried before a jury as to defendants Wilhelm and Kerr and at the conclusion of plaintiffs’ evidence the trial court instructed the jury to find Wilhelm and Kerr not guilty. Judgment was entered in favor of said defendants on the directed verdict and plaintiffs appeal.

The amended complaint alleged in substance that on April 3, 1941 the Chicago Title and Trust Company (hereinafter for convenience sometimes referred to as the company) employed plaintiffs to procure a purchaser for the apartment building known as 1940 Sherman avenue, Evanston, Illinois, for $165,000; that thereafter plaintiff Hazel F. Reid with the company’s knowledge and at its request accompanied Wilhelm to inspect the premises in question and informed him of said selling price; that plaintiffs advised the company through its agents that such premises had been exhibited to Wilhelm and that he had been advised of said purchase price; that Wilhelm assured plaintiffs that they were the only brokers who had exhibited said premises to him; that Wilhelm without plaintiffs ’ knowledge induced his personal attorney, Howard B. Kerr, to communicate with the company and represent to it that he (Kerr) was the broker who had procured Wilhelm as such purchaser; that on November 21,1941 the company sold the property to Wilhelm for $165,000; that upon the closing of the deal Wilhelm and Kerr again assured the company that Kerr was the broker who had procured Wilhelm as such purchaser and that no other broker had exhibited the premises to Wilhelm, although both Wilhelm and Kerr well knew that plaintiffs had secured Wilhelm as such purchaser and that plaintiffs were the only brokers who had ever exhibited the property to Wilhelm; that upon the aforesaid assurances by Wilhelm and Kerr the company paid Kerr, who was then acting as attorney for Wilhelm in closing the deal, $5,900 as commission; that “by means of the aforesaid acts said August A. Wilhelm and Howard B. Kerr, his personal attorney, cheated and defrauded plaintiffs” out of said commission; and that the company well knew that plaintiffs had procured Wilhelm as said purchaser at the above price and that “the usual and customary commission for the sale of such real estate is . . . $5,900 . . . , to all of which plaintiffs are entitled.” The amended complaint concluded with the prayer that judgment be entered in favor of plaintiffs and against the defendants, Chicago Title and Trust Company, August A. Wilhelm and Howard B. Kerr for $5,900.

The three defendants filed separate answers denying the material allegations of the amended complaint upon which plaintiffs predicated their right to recover. In addition the answers of all three defendants contained the following allegations:

“Prior to the date upon which the plaintiffs allege they showed said premises to defendant August A. Wilhelm, Chicago Title and Trust Company had mailed to the plaintiffs, and the plaintiffs had received, a so-called Brokers’ List, dated ‘February, 1941, ’ of real estate offered for sale by Chicago Title and Trust Company, Trustee, in which, on page 13, the property at 1940 Sherman Avenue, Evanston, Illinois, which is the property involved in this litigation, was listed in the following language, to-wit:

That said listing booklet contained, in large and conspicuous type, the following statement of the terms under which Chicago Title and Trust Company would pay commissions to real estate brokers:

‘Licensed Brokers will be entitled to commissions at the Chicago Beal Estate Board rate only after offers submitted by them have been accepted in writing by us and sales completed.

‘Only offers on. our printed form, accompanied by reasonable deposits' acceptable to us (not less than 7 %.)., can be given attention. ’

That, the plaintiffs, well knew these conditions under which Chicago Title and Trust Company paid commissions. to real estate brokers for the sales of. .real estate, and that said plaintiffs failed to comply with any of such conditions with respect to the property involved in this litigation.”

In so far as the record discloses the motion of the Chicago Title and Trust Company for summary judgment was not contested -by plaintiffs and on December 1, 1944 summary judgment was entered in favor of said company.

On March 28, 1945, the day the trial commenced as to the two other defendants, plaintiffs were granted leave to file replies to the answers of Wilhelm and Kerr, which answers had been filed respectively on July 30, 1942 and September 18, 1942. Their reply to Wilhelm’s answer, filed March 29, 1945, denied that “Howard B. Kerr was the only broker involved in the offer made for the property in question” and alleged inter alia that “defendants, August A. Wilhelm arid Howard B. Kerr conspired between themselves to prevent plaintiffs from procuring said Wilhelm’s offer to purchase said property, and while said Wilhelm and Kerr were making an offer of purchase for the premises in question and while they were representing in writing to the Chicago Title and Trust Company that said Kerr was the only broker involved in this deal, said Wilhelm was falsely representing to plaintiffs that he was purchasing property other than the property in question here by reason of which fact said Wilhelm and Kerr prevented plaintiffs from receiving the commission for the sale of said premises from the Chicago Title and Trust Company”; and that “defendants, Wilhelm and Kerr, conspired to prevent plaintiffs from receiving the commission to which they were entitled, all to the damage of plaintiffs in the sum of . . . $5,900 . . . .” Plaintiffs’ reply to Kerr’s answer was substantially to the same effect.

Briefly summarized plaintiffs’ evidence was to the effect that they were authorized by the Chicago Title and Trust Company to sell the property for $165,000, that they were the only brokers who interested Wilhelm in its purchase and showed it to him, that they advised the Chicago Title and Trust Company through its agents that they had exhibited the premises to Wilhelm and informed him of said purchase price, that they secured his promise to make a written offer through them to purchase the property for $165,000, that Wilhelm, instead of making such written offer of purchase through them, secretly and without their knowledge caused his attorney, Kerr, to procure a real estate broker’s license and to make the required written offer of purchase in his (Wilhelm’s) behalf, that such offer was made by Wilhelm through Kerr as broker, accepted by the Chicago Title and Trust Company and the property sold to Wilhelm for $165,-000, that both Wilhelm and Kerr represented to the Chicago Title and Trust Company that Kerr was the only broker involved in Wilhelm’s written offer to purchase the property for $165,000 and that Kerr received the commission.

Plaintiffs strenuously insist that the facts presented in evidence by them constituted a sufficient showing of an unlawful conspiracy by Wilhelm and Kerr to wrongfully prevent said plaintiffs from receiving a commission which they had justly earned.

The only question presented for our determination is whether plaintiffs’ evidence taken as true, with all intendments therefrom most favorable to them, fairly tended to show that the defendants Wilhelm and Kerr were guilty of an unlawful combination or conspiracy to prevent plaintiffs from consummating the sale of the property to Wilhelm and receiving the commission for such sale from the Chicago Title and Trust Company.

It is immediately apparent that in order for plaintiffs to make out a prima facie case it was incumbent upon them to prove as an essential element of their cause of action that Wilhelm owed them the duty of purchasing thp property through them. Was it shown that he owed them any such duty? Upon the trial the Reids did not claim to represent Wilhelm but claimed to represent the Chicago Title and Trust Company, the seller of the property. There was no contractual relationship between Wilhelm and the Reids and the latter did not claim and made no attempt to prove that there was. The Reids and Wilhelm were strangers to each other and dealing at arm’s length. The Reids and Wilhelm were under no legal obligation to deal with each other and there was no legal duty owed by one to the other. That being so no liability could attach if one refused to deal with the other.

Notwithstanding everything that plaintiffs’ evidence showed transpired between them and Wilhelm, unless and until he submitted through them a written offer to purchase the property for $165,000, he was just as free to submit his offer-through another broker as plaintiffs were to submit the property to another prospect. Wilhelm was not required to explain to plaintiffs why he did not desire to submit his offer through them any more than they were required to advise him what they might be doing as to other prospects. Accepting as true, as we must, the facts shown by plaintiffs’ evidence, the most that can be said of such facts is that they possibly indicate that Wilhelm failed to observe the properties that should prevail in the real estate field between real estate brokers and prospective purchasers.

In the absence of any evidence tending to show that Wilhelm owed plaintiffs the duty of purchasing the property through them, he had the right to purchase same through Kerr if he saw fit to do so and, having such right it cannot be said that Wilhelm and Kerr cheated or defrauded plaintiffs or that they unlawfully conspired to do so.

Plaintiffs cite numerous authorities which enunciate familiar rules of law pertaining to unlawful conspiracies to wrongfully injure or interfere with the business of another, none of which is applicable to the facts in this case, and we therefore deem it unnecessary to discuss them.

In Hansberry v. Holloway, 332 Ill. 334, the factual situation was strikingly similar to that presented here in so far as the duty owed by a prospective purchaser to a real estate broker is concerned. In that case the declaration alleged that defendant in error (Hans-berry) was a duly licensed real estate broker; that on November 1, 1924 he was employed by one Shafer to secure a purchaser for certain real estate at an agreed commission of $1,500; that he offered the premises to plaintiff in error (Holloway), who Was ready, willing and able to purchase for the price and on the terms specified and ag’reed to enter into a writtén contract with Shafer; that Hansberry on the faith of this offer, relying upon the same and believing the same to be true, submitted the offer to Shafer, who accepted it and was ready, willing and able to enter into the contract ; that Holloway, wholly regardless of his duty in the premises, wrongfully, fraudulently and without lawful reason failed and refused to enter into the contract and informed Hansberry and Shafer that he would not purchase the premises and that Hansberry was prevented from receiving the commission which he otherwise would have received; that in February 1925, Holloway fraudulently and maliciously, with the purpose and intent of deceiving Hansberry and depriving him of his commission, purchased the premises from Shafer and took title in the name of one Rosberg, fraudulently concealing. from Shafer and Hansberry that Holloway was the actual purchaser who paid the purchase price, and fraudulently concealing the fact that Rosberg had, before receiving the-conveyance from Shafer, executed a conveyance to Holloway, by reason whereof Holloway and Eosberg fraudulently took and received from Shafer the commission to which plaintiff was lawfully entitled and wrongfully and fraudulently applied the same to their own use, by means whereof Hansberry was deceived and defrauded and sustained the loss of the commission. There the court said at pp. 336, 337 and 338:

“It is insisted that the declaration did not state a cause of action. ... A declaration must state all of the facts necessary to sustain the cause of action and the facts must be stated with certainty. A declaration which fails to allege a fact the existence of which is necessary to entitle plaintiff to recover does not state a cause of action. (Allis-Chalmers Co. v. City of Chicago, 297 Ill. 444; Beveridge v. Illinois Fuel Co., 283 id. 31; Walters v. City of Ottawa, 240 id. 259.) It is insisted that the declaration does not allege any duty owing by plaintiff in error to defendant in error; that it does not state the nature of any such duty or allege facts from which any duty arose; that plaintiff in error had the right to buy from Shafer if he saw fit to do so; that he was under no obligation to buy through defendant in error; that if everything alleged was true, the only right of action defendant in error had was against Shafer.

“The allegation as to the employment of defendant in error by Shafer, the agreement of plaintiff in error to buy and to enter into a written contract, that defendant in error relied on this "agreement and submitted the offer to Shafer, who accepted it, and that plaintiff in error, regardless of his duty in the premises, refused to enter into the written contract, did not state a cause of action between plaintiff in error and defendant in error. No written contract was executed. A verbal agreement to buy was not binding on plaintiff in error under the Statute of Frauds. He was under no legal duty to buy. He had a legal right to refuse to carry out the verbal contract, if he saw fit, without incurring any liability to defendant in error for a commission. The allegations that in February, 1925, plaintiff in error fraudulently, with the purpose of deceiving defendant in error and depriving him of his commission, purchased the premises from Shafer in the name of Rosberg and concealed the fact that plaintiff in error was the actual purchaser, and that Rosberg conveyed to plaintiff in error, and plaintiff in error and Rosberg received a commission from Shafer, did not state a cause of action. The parties toere dealing at arm’s length, as entire strangers. No contractual relation existed between them. If plaintiff in error saw fit to buy directly from Shafer he had a right to do so. If Shafer was willing to ignore his agent and sell to plaintiff in error, that act did not make plaintiff in error liable to defendant in error in the absence of allegations of fact in the declaration which showed a legal liability. The declaration did not state a cause of action.” (Italics ours.)

In our opinion the law as pronounced in the Hans-berry case is peculiarly applicable to the situation presented by plaintiffs’ evidence and they have cited no authority to the contrary. Just as it was held in that case that the declaration did not state a cause of action because no facts were alleged therein showing any duty on the part of the prospective purchaser Holloway to buy the property through the real estate broker Hans-berry, so it must be held here that plaintiffs ’ evidence did not make out a prima facie case in that it utterly failed to prove an essential element of their cause of action, namely, a legal duty on the part of Wilhelm to purchase the property through them. If, as was held in the Hansberry case, the prospective purchaser Holloway was within his rights and incurred no liability to the real estate broker Hansberry in refusing to carry out his verbal agreement to purchase, it can be said with equal propriety in the instant case that Wilhelm was within his rights in refusing to purchase the property through plaintiffs.

We are in accord with the conclusion reached by the trial court that plaintiffs’ evidence failed to make out a prima facie case.

For the reasons stated herein the judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

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