author: Mr. Justice Wolfe

text:
    George Alschuler and Joe Nadon, Appellants, v. Rockford Bolt and Steel Company, Appellee.
    Gen. No. 9,868.
    Opinion filed April 28, 1943.
    Wilbur E. Johnson, of Rockford, for appellants.

      Miller, Thomas & Hickey, of Rockford, for appellee ; L. C. Miller and Francis E. Hickey, both of Rockford, of counsel.
   Mr. Justice Wolfe

delivered the opinion of the court.

Plaintiffs appellants instituted the present action in the circuit court of Winnebago county, Illinois, for damages because of the alleged negligent construction of certain scaffold equipment. There were originally two parties defendant, the first being one George Sloan, who died during the pendency of the litigation in the trial court. Sloan left no estate subject to administration, so there was no substitution of his personal representatives and the action was dismissed as to him. The other defendant is the present appellee, Rockford Bolt and Steel Company, a corporation.

An original complaint was filed joining both defendants. Upon motion to strike filed by both defendants, the court entered an order sustaining the motion and granted plaintiffs leave to file an amended complaint. A first amended complaint was thereafter filed against the corporate defendant, to which first amended complaint the defendant appellee filed a motion to. strike, which was granted and leave was given the plaintiff to file a second amended complaint.

The second amended complaint consists of eight counts. The first four counts pertaining to the construction of the entire scaffold equipment, and the last four counts dealt only with the construction of the scaffold hooks, hereinafter described at greater length. The first count alleges that on May 6, 1939, the plaintiff appellant, George Alschuler, was a plastering and lathing contractor employed in the construction of certain buildings at the Michigan Children’s Village at Coldwater, Michigan; that he sublet that portion of his contract dealing with lathing to the plaintiff appellant, Joe Nadon; thát Alschuler furnished the scaffold materials; that Nadon employed one John K. Whitman as a lather and laborer; that all these parties were operating under the Workmen’s Compensation Law of the State of Michigan, which law was pleaded at length in an exhibit attached to the complaint.

The fifth paragraph of said complaint is as follows: “5. That, on the 6th day of May, 1939, the said John K. Whitman, known as Jack Whitman, was engaged as a lather and laborer at a plastering and lathing job of the plaintiffs on a certain building at the project at Michigan Children’s Village, at Coldwater, Michigan, and while so engaged was in the exercise of ordinary care and caution for his own safety.”

The complaint further alleges that the original defendant, Sloan, had invented and was selling- to the general public for use in various forms of building construction, certain scaffold equipment consisting of a steel base in the shape of a disc, which was placed upon the ground with the concave surface downward; that there was inserted in the steel disc, in a vertical position, a metal pipe, in which, holes were drilled at varying lengths; that scaffold hooks made of bar steel, were inserted in such holes at varying heights, and at the other end of such hooks was laid a plank for scaffold purposes; that the scaffold was set at varying heights by moving the hooks from one hole in the upright metal supports to another hole at varying elevations ; that the corporate defendant manufactured such equipment, consisting of bases, upright supports and hooks, and knew that such scaffold equipment was to be used in building construction, to support the weight of one or more men while put to such use; that they were shipped direct by the defendant from time to time to customers of George Sloan for the specific purpose, known to the defendant, of being used to support scaffolds for such purposes; that prior to February 15, 1939, the said George Sloan ordered from the defendant certain scaffold equipment, consisting of such metal bases, upright metal supports and metal hooks or brackets, and that such equipment was shipped by the defendant to the Briggs Company of Lansing, Michigan, and that the plaintiff, George Alsehuler, purchased such equipment from the Briggs Company.

The first count thereafter alleges specific negligence against the defendant in this; that such scaffold hooks were bent while cold and not in a heated condition, and .that bending hooks in such manner constituted negligence which was the direct and proximate cause of the injury,for which recovery is sought; that as a direct and proximate cause of the manufacture of such hooks by bending such material and forming'the same while cold, on May 6, 1939, while the employee, Whitman, was working on a scaffold supported by such hooks, the hooks did break and Whitman fell, straddling one of the upright iron bars, resulting in severe injuries, etc.; that such injuries were injuries arising out of and suffered in the course of his employment, as defined by the Workmen’s Compensation Laws of the State of Michigan; that under such law, an award was granted to said Whitman against the plaintiffs, and that there was paid, under the supervision of the Department of Labor and Industry of the State of Michigan, a lump settlement award of one thousand ($1,000) dollars, which, together with other sums paid for the injuries and disability of Whitman, total the sum of twenty-seven hundred and thirty and 70/100 ($2,-730.70) dollars, and that under the subrogation provisions of the Michigan Statute, the plaintiffs became subrogated to all rights of settlement, as a result of which the defendant has become liable to plaintiff for the damages in question.

The second count realleges all elements of the first count except the specific form of negligence in the bending and forming of the scaffold hooks in question. ' The third count realleges all of the paragraphs of the first count except that as to the specific negligence, and charges the defendant with forming such scaffold hooks from steel too light in weight and strength for the purposes for which the hooks were made.

The fourth count charges as special negligence that the hooks in question were shaped and bent at such an angle that they projected out from the upright metal pipe and did not rest against the body of such pipe, with the result that a great strain was placed upon such hooks where said hooks were bent to be inserted in the holes in the upright pipe, and that if such hooks had been shaped so that they would rest against the pipe, they would have received greater support therefrom. Counts 5, 6, 7 and 8 correspond with counts 1, 2, 3, and 4 serially, except that they are restricted to the manufacture by the corporate defendant of the hooks alone, and the specific negligence charged in. count 5 corresponds with the specific negligence charged in count 1, and the negligence charged in count 6 corresponds with the negligence charged in count 2, etc.

The motion of defendant to strike the complaint is as follows: “Now comes Rockford Bolt and Steel Company, an Illinois Corporation, by its attorneys, Miller and Thomas, and moves the court to strike the plaintiffs’ second amended complaint at law filed herein, and as grounds for said motion says:

1. That the second amended complaint of the plaintiffs is substantially lacking in any allegation of fact which shows a liability on the part of the defendant.

2. That the second amended complaint is substantially lacking in any allegation of fact showing negligence on the part of the defendant.

3. That the second amended complaint is substantially lacking in any allegation of fact showing that the plaintiffs have suffered any injury or damage as a proximate result of any negligence on the part of the defendant.

4. That the allegations of the second amended complaint fail to show that the defendant owed any duty to the plaintiffs in the manufacture of scaffold hooks claimed to have been manufactured by this defendant.

5. That the allegations of the second amended complaint fail to show any contractual relationship between the defendant and the plaintiffs.

6. That the second amended complaint shows on its face that the defendant owed no duty to the plaintiffs.”

The court sustained a motion to strike ,this final amended complaint and plaintiffs elected to stand by their complaint, whereupon judgment was entered in favor of defendant and against plaintiffs,' from which judgment this appeal is taken.

The appellants, in their printed arguments, attack the appellee’s motion to strike on the theory that the appellee has challenged the sufficiency of their complaint on the single. ground that the amended complaint did not show a privity of contract between the injured party, and the Rockford Bolt & Steel Company. The appellee claims that there are five other reasons mentioned in its motion why the appellants’ complaint is not good and has argued each of them.

It is insisted that the appellants cannot sustain their suit, because the plaintiffs’ cause of action is based on an alleged, statutory assignment of a cause of action, which is in violation of the public policy of the State of Illinois. We cannot agree with the appellee on this contention. We think the suit was properly brought in the circuit court of Winnebago county— Stix, Baer & Fuller Co. v. Woesthaus Motor Co., Inc., 284 Ill. App. 301.

Paragraph 5 of the complaint states, that the injured party, Whitman, was employed as a lather and laborer and while so employed was in the exercise of ordinary care and caution for his own safety. The appellee challenged this statement, as not being a sufficient allegation that the injured party was in the exercise of due and ordinary care and caution for his own safety, as required by the law of this State. This court had occasion to pass upon a similar question in the case of Munsen v. Illinois Northern Utilities Co., 258 Ill. App. 438, and we there held that in an action by an employer against a third party to recover an amount paid an employee under the Workmen’s Compensation Act, for injuries sustained by the alleged negligence of a third party, the burden of proof rests upon the plaintiff to show affirmatively that the third party was negligent as charged, and that such negligence was the proximate cause of the injury, and that the employee was in the exercise of ordinary care for-his own safety just prior to and at the time of the injury. The allegation of this complaint does not state that just prior to, and at the time of the injury, Whitman was in the exercise of due and ordinary care for his own safety. The complaint was defective in not so alleging.

The main point relied upon by the appellee, to sustain the ruling of the court oh their motion, is that the manufacturer of an article is not liable to a third party who had no contractual relation directly, or indirectly with the manufacturer, unless the article was inherently dangerous to life or property. The appellants admit this to be the usual rule, but they contend there are exceptions to this rule which apply to the present case. They cite numerous cases as sustaining their contention. The case of Devlin v. Smith, 89 N. Y. 470, is one which is relied upon by the appellants. The facts in that case were different from the facts in the present case. In the Devlin case there was a contract to build a complete scaffold for painters, and. the painters’ employees were injured, as a result of the scaffold breaking. The court held that owing to negligent construction of the particular scaffold, it was eminently dangerous. In the present case, the only thing that the Rockford Bolt & Steel Company did was to make some parts for Sloan, who was the inventor of the scaffold, who in turn sold it to the Briggs Company at Lansing, Michigan, who in turn sold it to George Alsehuler, and Alsehuler furnished the scaffold to a subcontractor, Nadon, and Whitman, while in the employ of Nadon, was injured.

In Colbert v. Holland Furnace Co., 333 Ill. 78. The Holland Furnace Company manufactured a defective grating to be installed in a residence building, and a tenant in the residence stepped on it and was injured. On the question of faulty construction of the grating, the court held that the manufacturer of the defective article was liable.

In Lill v. Murphy Door Bed Co. of Chicago, 290 Ill. App. 328, two young ladies had rented a room in an apartment house where a defective bed had been installed, and the young ladies in question, were using the bed in an ordinary and careful manner and one of them was injured. She sued the manufacturer of the defective bed for her injuries. The court held in this case that the bed company became liable because they in their printed advertisements, stated that they were the manufacturers of the bed, and guaranteed them to be safe.

In the case of Davidson v. Montgomery Ward & Co., 171 Ill. App. 355, the Montgomery Ward Company had advertised circular saw frames for sale, which they stated were well built and thoroughly tested, and perfectly safe for use. In the operation of the saw frame, the flywheel on the same exploded and severely injured the person working at the saw. The court held under the circumstances that Montgomery Ward & Company, having advertised in their catalogue a safe and thorough construction of the saw frame and flywheel, were liable to the third person who was injured from the defects in the flywheel and a judgment was sustained against them.

None of the cases cited by the appellee seem to be in point with the facts in the present case, in litigation. There are factors in the present case that are wholly lacking in the cases cited by the appellants. The case of Shepard v. Kensington Steel Co., 262 Ill. App. 117, is more nearly in point than any other that has been called to our attention. In that case Minnie Shepard sued the Ford Motor Company, Ben T. Wright Inc., and thé Kensington Steel Company, to recover damages for injuries sustained because of the alleged negligence of the defendants. The Kensington Steel Company had purchased a Ford truck from Ben T. Wright Inc., which had been manufactured by the Ford Motor Company. On the day that the truck was purchased, an employee of the Kensington Steel Company was driving the same on a public street in the City of Chicago, when one of the rear wheels of the truck came off and rolled down the street and struck and injured Minnie Shepard. The trial court dismissed the suit as to the Ford Motor Company, bn the theory that there was no privity of contract between the defendant and the plaintiff, Minnie Shepard. A judgment was procured against the Kensington Steel Company and Ben T. Wright Inc. The case was appealed to the Appellate Court, and the court, in discussing the case as to the rule in such cases says: ‘1 The general rule is that a contractor, manufacturer, vendor, or furnisher of an article is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture or sale of such article.” (Cooley on Torts, vol. 2, 3rd ed., page 1486.) The court sustained the judgment against the Kensington Steel Company, the purchaser of the Ford truck, but reversed as to Ben T. Wright Inc., for the reason there was no privity of contract between that company and the plaintiff. One of the justices in that division of the Appellate Court filed a dissenting opinion in which he stated that .he thought that the judgment also should have been sustained as to Ben T. Wright Inc., but the entire court was of the opinion that there was no liability on the part of the Ford Motor Company, who manufactured the truck in question.

We think the law, as announced in that case, is very applicable to the facts in the present case. We find that the manufacturer, the Rockford Bolt & Steel Company, who manufactured the alleged defective parts of the scaffold, and the employee of the plaintiff who was injured by using the scaffold, had no privity of contract between them by which a suit for injuries could be maintained. The judgment of the trial court is hereby affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Burke

license: Public Domain

text:
    People of the State of Illinois ex rel. Ralph E. Sinsheimer, Appellant, v. Margaret S. Pierson, Town Clerk, Appellee.
    Gen. No. 42,305.

      Opinion filed May 5, 1943.
    Eugene E. Ward, of Chicago, for appellant.

      Edmund W. Burke, of Chicago, for appellee.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

On December 4, 1941, relator a taxpayer of New Trier Township, Cook county, Illinois, filed a petition for a writ of mandamus against Margaret S. Pierson, as township clerk of that township, asking that she be directed to call a special election to fill two vacancies in the office of constable. Answering the defendant denied that she is subject to the writ, contending she has the discretion to determine whether vacancies existed, and in the exercise of that alleged discretion she has determined none existed, due to the fact that two constables elected four years previously are holding over; that there are an adequate number of constables to transact all of the business pertaining to the office of constable; that to hold a special election for the purpose of electing two additional constables would cost the taxpayers of the township about $3,000, and that the election would not accomplish any good purpose. The parties stipulated as to the facts. Following arguments on the law, the court denied the prayer for the writ of mandamus and entered judgment accordingly. Relator appeals.

At the election for township officers of New Trier Township held on Tuesday, April 1, 1941, Anton Engels, John McKeighan, William Oman, Walter Brown and Peter Lucchesi were duly elected to the office of constable for that township. The term of office of each of these men began on the first Monday of May, 1941, to continue for four years “and until their successors are elected and qualified.” (Sec. 1, Art. I, ch. 79, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 71.001]). Walter Brown and Peter Lucchesi, two of the successful candidates, failed to file their oaths of office with the county clerk, and also failed to execute and deliver their bonds to the county clerk within 20 days after their election. Of the five men so elected to the office of constable on April 1, 1941, three, namely, Anton Engels, John McKeighan and William Oman, were reelected, having held said office for the four year term beginning on the first Monday of May, 1937. These three men took their oaths and executed and delivered their bonds to the county clerk, are duly qualified and are now acting as constables. Clarence Schafahen and Alfred Schempp were elected as constables on the first Monday of April, 1937, and duly qualified and acted as constables for the term beginning on the first Monday of May, 1937. These two men were not candidates for re-election on April 1, 1941. As Walter Brown and Peter Lucchesi failed to qualify for the term commencing on the first Monday of May, 1941, Clarence Schafahen and Alfred Schempp, the incumbents, continued to discharge the duties of the office of constable and are at the present time discharging such duties as hold-over constables. The parties have stipulated that at the present time there are an adequate number of constables to transact all of the business pertaining to the office of constable, and that the cost necessary and incident to holding a special election for the purpose of electing two additional constables would be approximately $3,000, We take the stipulation to mean that with the two hold-over constables there are an adequate number of constables to transact all of the business pertaining to the office of constable. In her brief defendant states that “ Walter Brown and Peter Lucchesi, it is true, failed to file their oaths of office and bonds with the County Clerk within the 20 day period as directed by the statute, but since that time both of them have repeatedly offered to file their bonds and oaths of office with the Honorable Michael J. Flynn, County Clerk of the County of Cook in the State of Illinois, but he has arbitrarily refused to accept them.” No such allegation is made in the petition, nor have the parties stipulated to that effect. So far as the record shows, neither Brown nor Lucchesi has made any attempt to file his oath of office with the county clerk, or to execute and deliver his official bond to the county clerk.

Section 21 of Article VI of the Constitution of 1870 provides that constables shall be elected in and for such districts as are, or may be, provided by law. Section 32 of that article provides that the officers mentioned therein shall hold their offices until their successors shall be qualified, and that the terms of office of such officers, where not otherwise prescribed in the article, shall be four years. This section also provides that vacancies shall be filled by election, but where the unexpired term does not exceed one year the vacancy, where not otherwise provided, shall- be filled by the board of county commissioners. Under sec. 1, ch. 79, Ill. Rev. Stat. 1941 [Jones Ill. Stats. Ann. 71.001], a town having 5,000 inhabitants or over is required to elect five constables. As New Trier Township has a population well over that figure, it comes within the classification requiring the election of five constables. Section 8 requires that every justice of the peace and constable, before entering upon the duties of his office, shall take, subscribe and file in the office of the county clerk, the oath of office prescribed in the constitution. Section 9' provides that every justice of the peace or constable, before entering upon the duties of his office, shall execute and deliver to the county clerk within 20 days after his election, a bond, to be approved by the county clerk, with two or more good and sufficient securities in the sum of not less than $2,000, nor more than $10,000, conditioned that he will justly and fairly account for and pay over all moneys that may come to his hands under any judgment or otherwise, by virtue of his said office, and that he will well and truly perform every act and duty enjoined upon him by the laws of this State, to the best of his skill and ability. Section 10 provides that “if any justice of the peace or constable shall not, within twenty days after his election, or appointment, take the oath and give bond, as aforesaid, such justice or constable shall not be permitted after that time to qualify, but the office shall be considered as vacant and filled accordingly.” Section 12 declares that certificates of election shall be granted to constables-elect by the county clerks, which shall be sufficient to authorize them to act. Section 13 provides that the county clerk shall keep a book in which he shall enter the name of every justice of the peace and constable sworn into office, arid the time of his being sworn into office, together with the date of his commission or certificate. Section 7 provides that “when a vacancy occurs in the office of a justice of the peace or constable by death, resignation, removal from the town or precinct, or other cause, if the unexpired term exceeds one year, his office shall be filled by special election; and it shall be the duty of the town clerk in counties under township organization, ... in case of such vacancy, to issue his order to the judges of election of the proper town or precinct requiring them, on a certain day therein named, not less than twenty days from the issuing of such order, to hold an election to fill such vacancy; and at the same time the county or town clerk shall deliver to such judges three copies of a notice of such election, two of which notices shall be posted up in such town or precinct in two public places therein; and the election shall be held pursuant to such order and conducted as other elections.”

Eelator insists that on failure of a constable-elect to file his oath or bond with the county clerk within 20 days after his election, his office is considered vacant, and it then becomes the duty of the town clerk to call a special election. The defendant answers that the provision requiring every justice of the peace or constable to file his oath and execute and deliver his bond within 20 days after his election is mandatory only as to the giving of the bond, but as to the precise time of filing, it is merely directory, and as a consequence may be filed subsequent to the 20-day period as set forth in the statute. We will first determine whether a vacancy exists. Defendant relies upon the case of City of Chicago v. Gage, 95 Ill. 593. Gage, a former city treasurer, and his sureties were sued on his official bond. A defense interposed was that under the city charter the treasurer was required to qualify by filing his bond within 15 days after notification of his election, and it was contended that Gage, not having filed his bond within the time limited, the office became vacant and thereupon all liability under the bond terminated. It was conceded that Gage failed to file his bond yithin the 15 days. Neither the mayor nor the city council declared the office vacant or appointed a successor. When, after the 15 days had elapsed, he did present his bond, it was accepted and approved. The Supreme Court concluded: “We do not think the sureties have the right now to set up in defeat of the bond that it was not accepted and approved and filed with the city clerk within fifteen days prescribed in the charter.” The court also stated (622):

“It is conceded that after the expiration of the fifteen days the mayor and council would have been fully justified in refusing to accept and approve this bond, because of ..this default; and in appointing Gage’s successor, as in the case of Ross v. The People, 78 Ill. 375. Had they so elected, Gage’s right to the office would have been forfeited,' and a person appointed who would give a bond. ’ ’

It will be observed that by the admission of the defendant in her brief in the instant case, the county clerk refused to accept the oath or the bond. Thus, the ■Gage case appears to support the asserted position of the county clerk. In the case of People v. Percells, 8 Ill. (3 Gilm.) 59, an information in the nature of a quo warranto, it appears that Percells was elected as a justice of the peace on October 25, 1845; that he filed his official bond in due time,' but omitted to recite in the condition of the bond the language; “and that he will well and truly perform all and every act and duty enjoined on him by the law of this State, to the best of his skill and abilities.” On December 24, 1845 the defendant filed a new bond with other sureties and this bond included the words that had been omitted from the previous bond. The new bond was filed after the 20 days within which the justice was required to file his bond. The answer of the defendant admitted the statements of the information to be true. Plaintiff demurred to the answer. The court overruled the demurrer and dismissed the information. The plaintiff appealed. The Supreme Court held that the first bond was defective in substance and was not the bond required to be filed within the meaning of the statute. The defendant also contended that the filing of the additional bond, even though after the 20 days fixed by the statute, was a sufficient answer to the information. The Supreme Court said (63)':

“The filing of a bond with the proper and legal conditions, more than twenty days subsequent to the election, confers no right upon the defendant to hold the office. Immediately upon the expiration of the twenty days, by express law, it became vacant. It could only be filled by an election. The execution and filing of the bond, with substantially such conditions as the statute prescribes, constituted a condition precedent to the defendant’s right to hold the office. And although the bond filed by him after the vacancy had occurred, will be obligatory upon him and his securities as an indemnity against any misconduct of his under color of office, it cannot operate to invest him with an office which had become vacant through his negligence or inattention.

“Neither is it true, as is contended by the defendant’s counsel, that the approval of the bond by the clerk of the County Commissioners’ Court is such a judicial act as is conclusive of the defendant’s right. The clerk may decide judicially what shall be the penalty of the justice’s bond at any sum between five hundred and one thousand dollars, and also upon the sufficiency of his securities. The conditions of the bond are fixed by law and are beyond his discretion or control. ’ ’

The judgment of the circuit court was reversed and judgment entered in the Supreme Court finding the defendant guilty of usurping and intruding into, and unlawfully holding, and exercising the office of justice of the peace and that he should be ousted from the office. It does not appear from the Percells case whether the relator was the hold-over justice of the peace. In the case of Greening ex rel. Rowe v. Barnes, 355 Ill. 99, it appears that defendant was elected a justice of the peace for the town of Capital in Sangamon county in April 1929. At the election held in April 1933 he was a candidate to succeed himself, but was defeated for re-election by Lawrence A. Gaffney. Gaffney failed to qualify. The county clerk and ex officio town clerk determined that by reason of his failure to qualify a vacancy existed, and issued a call for a special election. At the special election W. M. Rowe was successful. He was declared elected to fill the unexpired term and was commissioned by the Governor on June 13, 1933. The State’s Attorney, in behalf of Rowe, filed an information in quo warranto against the incumbent Barnes. The Supreme Court, in disposing of Barnes’ plea, said (101):

“It is appellant’s ingenious argument that because the constitution provides that the tenure of office shall continue until his successor is qualified he has at all times been lawfully holding the office since the expiration of his regular term, and that because he has been holding the office during this time there has been no vacancy which would be sufficient to justify a special election. . . . It is his contention that inasmuch as Gaffney failed to qualify, he, the appellant, continued lawfully in the office, and that no special election could be called because there was no vacancy. The mere statement of the contention indicates that it is far more ingenious than meritorious. Ingenious as it is, however, it overlooks certain points. It overlooks the point that Gaffney, was elected for the regular term, and that the vacancy is in the term for which Gaffney was elected and not of appellant, whose term had expired, and who had,, at most, a mere tenure of office.”

The Supreme Court affirmed the judgment of ouster entered by the circuit court of Sangamon county.

These cases relating to justices of the peace are applicable to the factual situation before us, as the provisions relating to constables are similar to those relating to justices of the peace. The statute not only provides that the bond shall be filed within 20 days, but declares that if a justice of the peace or constable shall not within 20 days after his election, take the oath and give bond, he shall not be permitted after that time to qualify and that his office shall be considered as vacant. Paraphrasing the language of the Supreme Court in the Greening case, Clarence Sehafahen and Alfred Schempp, whose terms expired, “held a mere tenure of office. ” It is clear under the statute and the decisions that vacancies existed and exist in the office of constable.

The question is raised as to whether there is a duty on the defendant as town clerk to issue an order to the judges of election requiring them to hold an election to fill the vacancies. Section 7 provides that when a vacancy occurs in the office of constable, if the unexpired term exceeds one year, his office shall be filled by a special election, and it shall be the duty of the town clerli to issue an order to the judges of election to hold an election to fill such vacancy. In the case of People v. Hotz, 327 Ill. 433, it appears that J. E. Brown, the State’s Attorney of Madison county, was elected judge of the circuit court and resigned his office as State’s Attorney. The board of supervisors appointed Alvin C. Bohn to fill the vacancy. A petition was filed against Joseph Hotz, the county clerk, for a writ of mandamus, commanding him to issue an order appointing a day for an election to fill the vacancy in the office of State’s Attorney. The unexpired term was more than one year and the vacancy was therefore required to be filled by election. The court held that a provision of the statutes which permitted the board of supervisors to fill the vacancy was unconstitutional, and said (436):

“The duty imposed upon the county clerk to issue an order appointing a day for an election to fill the vacancy remained, and upon his failure to perform this duty a writ of mandamus should issue requiring him to perform it.”

Accordingly, the county clerk was required by the writ of mandamus to issue an order appointing a day for an election to fill the vacancy. In our opinion the Hots case presented the same principle as that involved in the case before us. The defendant, commenting on the Hots case, states that there is a contrast between the important and essential office of State’s Attorney and the “unimportant and in fact unnecessary office of constable of the Town of New Trier, where there are five constables acting at the present time, all duly qualified.” It is clear that the constitution and the statutes comtemplate that a constable performs important duties. The defendant urges that the power or duty as town clerk to call a special election to fill vacancies in elective offices is discretionary and not subject to control by mandamus, and that if any reasonable doubt .exists as to the question of discretion in the office, the court will not interfere by mandamus. From the recent case of People v. Village of Maywood, 381 Ill. 337, it appears that an elector and taxpayer of Maywood filed a petition for mandamus to compel the officers of that village to call an election to fill a vacancy in the office of police magistrate. The court granted the writ of mandamus to compel the village officials to call the' election to fill the vacancy. In affirming the judgment our Supreme Court said (340):

“If a vacancy exists and if the village officials, by reason thereof, have the official duty to call an election to fill such vacancy, they may be compelled by mandamus to perform such official duty. (People ex rel. Oliver v. Knopf, 198 Ill. 340.) ”

From an analysis of the provisions of the statutes and the cases cited, we are convinced that the town . ■ clerk does not possess a discretion to determine whether a vacancy exists. It is clear that two vacancies exist in the office of constable. Therefore, it is the duty of the town clerk to order a special election to fill the vacancies.

As the defendant does not possess a discretion whether or not to order a special election, she can be required by a writ of mandamus to perform her duty. While it is stipulated that the township has an adequate number of constables at the present time, that is because two of them are hold-overs. In our opinion, the principle announced in the Hots and Maywood cases are applicable to the instant case. The offices of constable arid State’s Attorney are provided for in the same article of the constitution. They are both important offices. The court has no discretion to enforce or riot to enforce a law. If a law does not operate in the manner that some or even a majority of the people believe it should, the remedy is not to ignore the law, but to go to the legislature or to the people to have such law changed. In the recent case of People v. Schlaeger, 381 Ill. 146, the Supreme Court said (155):

“The rule is also well settled that while the courts have some judicial discretion as to whether the writ of mandamus shall issue in proper cases, still, where a clear legal right is shown by the relator, he is entitled to the writ. Illinois Central Railroad Co. v. People, 143 Ill. 434.”

The parties have stipulated that the cost necessary and incident to holding a special election for the purpose of electing two constables would be approximately $3,000. While the law does not give the clerk the right to exercise a discretion as to whether he should issue an order for a special election where it is clear that a vacancy exists, nevertheless, the clerk is given a discretion to determine the date on which the special election should be held. Section 7 provides that the clerk shall issue an order to the judges of election requiring them on a certain day therein named, not less than 20 days from the issuing of such order, to hold an election to fill such vacancy. It will be noted that while the day for an election cannot be sooner than 20 days, no other limitation is imposed as to the time when an election shall be held. Therefore, the clerk is given a discretion to fix the date. The discretion must be exercised reasonably. The legislature, probably considering the expense involved, intended to give a discretion to the clerk in the matter of fixing the day when an election should be held, but manifestly did not intend to give any discretion as to the calling of an election. A primary election was held in every precinct in the State in April 1942, and a general election was held in November 1942. The pro rata share of the town would be small, if anything. We do not know of any statute or rule that would have prevented the town clerk of New Trier Township from ordering an election to be held on one ot those days. The defendant’s brief indicates that one of the reasons for her refusal to call an election is that she does not wish to put the taxpayers of the township to the expense that would be entailed. Should she issue an order requiring the judges and clerks of election appointed by the county board to hold an election to fill the vacancies on a day when another election is being held, as for instance in April 1944, and should anyone challenge her action in so doing, then the court before which the case should be litigated would have before it for consideration the question as to whether she abused her discretion, and at that time the court would have the right to consider the entire situation, including the expense involved. Accordingly, the judgment of the superior court of Cook county is reversed and the cause remanded with directions to proceed in a manner not inconsistent with this opinion.

Reversed and remanded with directions.

Hebel and Kjley, JJ., concur.


text:
    Frederic L. Goff, Jr., Administrator of Estate of George D. French, Deceased, Appellee, v. New Amsterdam Casualty Company, Appellant.
    Gen. No. 42,351.

      Opinion filed May 5, 1943.
    Burt A. Crowe, of Chicago, for appellant.
    Rosen, Francis & Cleveland, of Chicago, for appellee; John F. Rosen and Sidney A. Wilson, both of Chicago, of counsel.
   Mr. Presiding Justice Burke

delivered the opinion of the court.

Miss Josie Edler, who resided at and was employed as a bank teller in New Orleans, was the owner of a black Chevrolet coupe, purchased in April 1935. The , New Amsterdam Casualty Company issued its policy insuring her against loss from the liability imposed by law for damages on account of injuries or death in the operation of the automobile between April 22, 1935 and April 22, 1936. The policy contained what is commonly known as an omnibus or extended coverage clause, making it available to any person while operating the scheduled automobile “provided such use or operation is with the permission of the named assured.” Miss Edler left New Orleans September 28, 1935 and drove her car to Chicago, arriving on October 2, 1935. George D. French, a widower and a resident of New Orleans, arrived in Chicago a few days before Miss Edler. At that time he was engaged in business in Chicago. He owned a green 1934 or 1935 two door Chevrolet sedan. He lived with his four children, Marion, George, William and Frances in the 7200 block on South Shore Drive in Chicago. Miss Edler lived at the Country Club Hotel, 6930 South Shore Drive, Chicago.' They were engaged to be married and she was on a leave of absence from her position with the bank. He kept his car in the Drive-In Garage, 7000 South Shore Drive, and he also drove Miss Edler’s car into the same garage and made arrangements for its storage and upkeep. On Sunday, March 15,1936, while driving Miss Edler’s automobile, Mr. French collided with another automobile driven by George Kellerman, and as a result George Keller-man, Lydia Kellerman and Mr. French were killed, and Alberta Bohnhoff sustained bodily injuries. An administrator was appointed for the estate of George D. French, deceased. The administratrix of the estate of George Kellerman, deceased, brought action and recovered a judgment of $7,000 against the administrator of the estate of George D. French, deceased. The administratrix of the estate of Lydia Kellerman, deceased, brought action and recovered a judgment for $4,000 against the administrator of the estate of George D. French, deceased. Alberta Bohnhoff brought action and recovered a judgment of $9,000 against the ádministrator of the estate of George D. French, deceased. These judgments were entered on June 9, 1939. After the institution of the actions the administrator of the estate of George D. French, deceased, delivered to the casualty company the three summonses in such actions and requested it to defend under the terms and conditions of the policy issued to Miss Josie Edler. The casualty company caused the appearance and answer of the administrator of the estate of George D. French, deceased, to be entered in each of the actions. The casualty company subsequently advised the administrator of the estate of George D. French, deceased, that the causes of action arising out of the collision were not covered by the policy issued to Miss Edler. Thereupon, the attorneys selected by the casualty company withdrew as counsel for the defendants in each of the cases. The administrator of the estate of George D. French, deceased, filed his amended complaint in the superior court of Cook county against the New Amsterdam Casualty Company, a corporation, alleging that the defendant wrongfully breached the terms of the policy by failing and refusing to defend the actions mentioned and by failing and refusing to pay the judgments; and asked damages in the sum of $20,000, plus interest at the rate of 5 per cent per annum from June 9,1939. Issue was joined and the case was tried before the court and a jury, resulting in a verdict for the plaintiff in the sum of $22,658.10. Motions by the defendant for a directed verdict, for a judgment non obstante veredicto and for a new trial were overruled and judgment was entered on the verdict, to reverse which this appeal is prosecuted.

Plaintiff’s theory of the case is that George D. French had implied permission of the assured, Josie Edler, to operate her automobile on the day the accident occurred and that therefore the insurance extended to George D. French as an additional assured - under the provisions of the omnibus coverage clause. Defendant’s theory of the case is that the assured, under the policy of insurance, was Miss Josie Edler and that George D. French, at the time and place of the operation of her automobile, was not an assured under the policy; that the evidence clearly and without any contradiction shows that the car of Josie Edler was driven by George D. French at the time and place of the accident without her knowledge, consent or permission, and that defendant was under no obligation to defend the suit brought against the administrator of the estate of George D. French, or to pay any judgments rendered against him on account of the accident.

Asserting that the plaintiff failed to prove the charges of the amended complaint, that the court erred in refusing to direct a verdict in its favor, that the verdict is manifestly against the weight of the evidence, and citing in support of its argument Byrne for use of King v. Continental Casualty Co., 301 Ill. App. 447; Soukup v. Halmel, 357 Ill. 576; Cocos v. American Automobile Ins. Co., 302 Ill. App. 442; People v. Luster, 292 Ill. App. 244, and numerous other cases, defendant asks that the judgment be reversed. Plaintiff insists that the evidence shows that French operated the automobile with the implied permission of the named assured. We agree with the contention of plaintiff that the permission which the policy contemplates need not be expressly given, that it may arise and be implied from a course of conduct and that it may be shown by circumstantial evidence. In order to determine whether there was competent evidence to establish that French had implied permission to use Miss Edler’s car on the day of the fatal collision, we have carefully read the transcript of the testimony. Three depositions were read to the jury, two of which were given by Miss Edler, and one witness appeared in person. The first deposition of Miss Edler was taken at New Orleans at the instance of defendant on January 7, 1940, and the second deposition was taken at the instance of plaintiff at New Orleans on January 2, 1942. The deposition of Frances French, daughter of George D. French, deceased, was taken at New Orleans on July 24, 1941. The only witness called by plaintiff who testified in open court was William Yule. In her second deposition, which was read to the jury as part of plaintiff’s case, Miss Edler testified that she did not see her automobile on the day of the accident. The last time she saw the automobile prior to the accident was about March 13, 1936. Asked as to who made arrangements for the storing of her car at the Drive-In Garage, she answered that Mr. French drove it in for her. He drove the car into the garage “and asked them how much it would be and they told him.” She went over there several days after the car was driven into the garage “and told them I wanted my car and they let me have it”; that the car was stored in that garage from October 5, 1935 until the day of the collision. Asked as to who paid the bills for the storage of the car, she answered that she did. She further answered; “I did not pay the amount. I would give Mr. French the money and he would pay them for it whenever it was due.” The first day or two after she arrived in Chicago the car was stored in a garage near the Congress Hotel. After that it was always stored in the Drive-In Garage. The garage owner knew that it was her car “because I would go in there and get it and take it out.” The monthly storage charges were $10, which Mr. French paid for her. He actually turned the money over to the operators of the garage. She paid Mr. French by cash whenever the storage was due. The bill was paid monthly. She did not receive a receipt for the payment of the storage, nor did she receive any bills for the storage. Asked as to whether Mr. French received .any bills for the storage, she answered: “That I couldn’t say. I imagine he did.” She knew that Mr. French owned a Chevrolet coach automobile, which he also kept in the same garage. He kept it in front of his house most of the time. She frequently drove her automobile. On some occasions she would walk over to the garage and drive the car out, and on other occasions she would telephone and it would be driven to her hotel. When Mr. French and she went out together they used her car.- Asked, “Who generally did the driving?”, she answered: “I would or he would Sometimes he would drive and sometimes I would.” On the day of the fatal accident she had dinner with the French children at Mr. French’s home at about 1:30 p. m. It was a Sunday. Asked, “Did you give him permission to use your car whenever he wanted?”, she answered: “As far as I know, yes.” The attorney conducting the examination for plaintiff apparently was not satisfied with this answer because he immediately repeated the answer in the form of a question and received the following reply: ‘ ‘ Oh, no; he would call me up and ask me if he could use the car and I would give him permission. I didn’t give him blanket permission to use the car, or however you say it.” She had known Mr. French sixteen and a half years and had been engaged to him since the death of his wife, which occurred in April 1935. She saw him frequently. Asked as to how many times prior to the accident Mr. French had used her automobile, she answered: “Well, he had used it several times to my knowledge.” The attorney then inquired as to what she meant by “several times.” She answered that she really didn’t know “because I know one time he went to the meeting of the Flossmoor Country Club that was held in Chicago, and then another time I let him have it to go out and see some relations of his at the Hyde Park Hotel; and then most of the time when he was in the car I was with him.” Asked as to whether when she went out with him in the car, he would get the car and call for her, or she would get the car and call for him, she answered: “Well, sometimes he would get the car and call for me and sometimes we would walk over together and get it. It just depended upon where we were going. ’ ’ Asked: ‘ ‘ When he would get the car and call for you, would you give the garage any instructions as to whether or not he should take the car?”, she answered: “They never asked me; he would just walk in and get it.” She was then asked: “Did you ever give the garage any instructions as to whether or not he should take the car?” she answered: “No.” Asked as to whether she made any arrangements with the garage for Mr. French to use the automobile, she answered: “No.” Asked as to whether Mr. French’s children used her automobile, she answered: “Well, I know one time that his daughter, Miss Frances French, used the car.” Asked whether Frances French got permission from her to use the car, she answered: “The father got permission from me for her to use it; his car was down at Joliet; he had some breakdown or something.” Asked: “Did he ever use the car without your permission?”, she answered: “Not to my knowledge.” Asked: “Had any of his family ever used the car without your permission?”, she answered: “Not to my knowledge.” She testified that Mr. French did not have a set of keys to the car; that one set of keys was kept in her apartment and the other set was left in the automobile. Asked as to how many times Mr. French used her car when she was not with him, she answered: “Well, as I told you, I know One time when he went to this meeting of the Flossmoor Country Club, and I do know that he went down to the Hyde Park Hotel.” Asked "as to how she would give him permission to use her car, she answered: “Well, he would call me and ask me and I would tell him yes.” He would call her by telephone. Asked: “Did you ever call the garage and tell them to give him the car?”, she answered: “No, I did not.” Asked as to whether the car was stored in the garage on the day of the accident, she answered that to the best of her knowledge it was there. She did not use the ear that day. Asked as to whether she knew for what purpose Mr. French was using the car at the time of the accident, she answered: “No.” Asked: “Did you know where he was going?”, she answered: “Only what I was told. I don’t know.” Asked as to whether she would allow Mr. French to use the car whenever he wanted to use it, she answered: “Whenever he asked me for it. I would let him use it, yes.” Asked: “Did you ever refuse him?”, she answered: “Not that I know of.”

The deposition of Frances McKown of Metairie, Louisiana, taken at New Orleans on July 24,1941, was then read to the jury as part of plaintiff’s case. She is the daughter of George D. French, deceased, and married Ben McKown since her father’s death. When she moved to Chicago with her father in the fall of 1935 she was 15 years of age. She knew Miss Josie Edler, but did not know whether or not they were engaged to be married. Witness did not call at Miss Edler’s home. Miss Edler did call at witness’ home. Asked as to whether she knew if Miss Edler had an automobile, witness answered: “No.” Witness knew that her father owned a Chevrolet sedan, which he kept in the Drive-In Garage. Asked whether or not her father ever used Miss Edler’s car, she answered: “I didn’t know that Miss Edler had an automobile.” Asked as to the color of her father’s automobile, she answered: “He had a black one and I had a green one.” They were both Chevrolet cars. She “understood” that the black Chevrolet' coupe was her father’s. She spoke about the green Chevrolet sedan as her car. She also testified: “It was really dad’s car, it was just taken for granted it was mine. ’ ’ Asked as to whether her father bought the green car for her, she answered: “I don’t know whether he bought it for me, but I used it.” Asked as to how often her father drove the black coupe, she answered: “I don’t know that either.” Asked: “Did he have it every day?”, she answered: “He had it some, but I really don’t know how much. I had my car and I really don’t know because I didn’t ask.” Asked: “Whenever you saw your father driving a car, what car was it?”, she answered: “I can’t remember ever seeing him drive a car myself, because whenever we went riding together I used to drive. Dad did not like to drive very much. He was a good driver but he didn’t like to drive. I do, so I just drove.” Asked as to whether she saw her father driving a black Chevrolet coupe, she answered: “I really don’t know. I may have. I can’t exactly say it now, but I may have.” Asked: “Where did you keep your car?”, she answered: “At the Drive-In Garage.” Asked: “Was your father’s black coupe kept at the same garage?”, she answered: “As far as I know it was.” Asked whether she ever saw her father’s black coupe in there, she answered: “Yes.” Asked: “When you used the black Chevrolet coupe, would you have to get permission from anyone to take it?”, she answered: “I don’t remember. I think dad used to say something about it when I would take it, but I don’t remember. I didn’t take it but once or twice and that was when absolutely necessary.” She had never been out in the automobile in the company of her father and Miss Edler and had never seen her father and Miss Edler together in the automobile. She did not know whether Miss Edler ever used the black coupe and never saw Miss Edler in the black coupe. She did not know whether Miss Edler ever had an automobile. On crtiss-examination, she said that the accident resulting in the death of her father occurred six years previously. She did not remember, but stated that it was possible that Miss Edler had dinner at her home with witness and her brothers and sister on the Sunday of the fatal accident. Asked whether she knew if Miss Edler owned the black coupe, she answered: “No.” She further answered that she did not know who the black car belonged to. Asked if she remembered whether the black coupe had a Louisiana license, she answered she did not remember. She did not know whether Miss Edler drove that car to Chicago or whether Miss Edler had paid the insurance on that car. In answer to the question: “When I asked yon about your car, , you said you did not know much about it because you had your own car,” she answered: “As far as I knew that was his. I really didn’t know about it and had no idea.” Asked: “As far as you knew, that was his car?”, she answered: “Tes.” Asked as to how many times she drove the black coupe, she answered: “Once or twice. I’m not sure. I didn’t use it very much, I didn’t have need to.” Asked as to whether she asked permission from Miss Edler “to use that car at that • time,” she answered: “Oh, no. I didn’t even know it was her car, and I wouldn’t have had occasion to ask her.” Interrogated as to whether she asked permission to use' “that car,” she answered: “I imagine I asked my father. It was not my car.” She did not know whether her father asked permission of Miss Edler for the use of the car by witness. Asked whether it wasn’t a fact that witness used the car once, she answered: “It may be.” Asked: “As I understand it you never saw anybody use that car?”, she answered : “Not that I can remember. I mean that it did not dawn on me that it was someone else’s car, and I didn’t have occasion to observe what went on about it.” Asked: “You say you may have used it once?”, she answered: “No, I used it one time. It may have been more, but I don’t remember.”

William Yule, the only witness who testified in open court, stated that he operated a gas station and in 1935-6 was in charge of the Drive-In Garage, owned by his father-in-law, H. F. Brandenburg. At the time of the trial Mr. Brandenburg was bedridden. During the time witness was at the Drive-In Garage he became acquainted with George D. French toward the end of September 1935. French came in and inquired about rates. A few days later he drove in a Chevrolet sedan to be stored in the garage. Four or five weeks later, or the early part of November 1935, Mr. French drove in a Chevrolet coupe. Both cars were stored in the garage to and including the day of the accident. Mr. French paid the storage charges on the coupe and the sedan. No person other than Mr. French paid for the oil and gas for either of the two cars. There was a monthly account and Mr. French settled at the end of each month and he paid for washing each car. The charges on both cars were placed on one bill. Asked as to whether he saw a woman “ever pay any of these charges,” he answered, “Not to my knowledge, not to me.” Asked: “Did you see any woman in connection with either of those cars, the coupe or the sedan?”, he answered: “Yes.” He did not see her very often, maybe twice a week. He saw Mr. French every day. Asked as to how often Mr. French took the Chevrolet coupe out, he answered: “Well, he often stopped in, he got off the Illinois Central here, and came by, and the car that was there he would take out, whichever one it was.” Questioned as to whether he had instructions from anyone not to permit Mr. French to take out the Chevrolet coupe, he answered in the negative. The keys of the coupe were in the car “because we had to deliver the car.” The woman took the coupe out “maybe twice a week, maybe three times a week.” He did not believe he ever saw Mr. French and the woman together, but he might have, but did not remember. He could not describe the woman. He did not see her enough “to really know her.” There were Louisiana license plates on the coupe. The last time witness saw the coupe was on Sunday at about 5:45 when Mr. French called and asked to have the car delivered to his home. Witness delivered the car to Mr. French and “he got into the car with his children, and I walked back to the garage. He seemed to be in a hurry.” Witness did not see the car thereafter. Asked: “Did anybody else use it?”, witness answered: “Mr. French himself used it, this woman that you speak of used it, and the daughters used it. ’ ’ Asked: “And who did, for the most part, use the Chevrolet sedan?”, witness answered that Mr. French’s daughters used it more than anyone else.

Defendant introduced the deposition of Miss Edler taken by it at New Orleans on June 7, 1940. Asked as to who had authority or permission to use her car on March 15, 1936, she answered: “No one.” Asked as to whether or not Mr. French had authority to use her car, she answered: “None.” Asked if she gave Mr. French any permission to use her car on March 15, 1936, she answered: “I did not.” Asked whether or not Mr. French had any general authority or permission from her to use her car, she answered: “None.” She did not have any knowledge of the fact that Mr. French had her car out and was using it on the day of the accident. Asked whether or not she directed the garage authorities to allow Mr. French to use her car, she answered: “No.” Asked: “Will you state whether or not, when Mr. French wanted to use that car, would he not ask your permission?”, she answered: “He would ask permission.” Asked whether he ever on any occasion asked permission to use the car, she answered: “Yes, he did.” Asked: “What was the occasion?”, she answered: “Well, several times he had used it, he would call me up and I would tell him he could use it.” Asked whether on the day of the accident he was engaged in any errand for her, or any business of hers, she answered in the negative. On cross-examination, asked as to how many times prior to the accident Mr. French used her automobile, she answered: “I really can’t recollect, because I really don’t know, several times. ’’ She knew ‘ ‘it wasn’t every week. Sometimes that car wasn’t used very much, and most of the time it would be> when I was with him that the car was used.” To the question: “Now, he used it lots of times when you were not with him?,” she answered: “Several times, not lots, several times.” Asked: “Now, if he had a car of his own, why would he borrow your car?”, she answered: “Well, his children used his*car most of the time.” Asked as to the purpose for which he used'the car, she answered: “Well, he would go to the-Flossmoor Country Club, he used it several times for that, and a couple of times — in fact, I know he went down to the Hyde Park Hotel to see some relations of his one time, and I know on one occasion he went to a meeting of the Flossmoor Country Club, but it wasn’t at the club, it was held somewhere in Chicago. I know he called me up and asked me if he could use it.” Asked: “Now, when you would lend Mr. French this car, you say you would give him permission to use it?”, she answered: “Yes, when he would ask me, I would let him use it.” Asked: “How would you give him permission?”, she answered: “He would call me and I would tell him he could use it, and he would go to the garage and get it.” To the question: “He did not háve to make any arrangements to get the car?”, she answered: “No, they were very lax over there. I don’t think it mattered to them.” To the partially completed question: “Whenever he wanted to borrow the car —?”, she answered: “He would call me and he would go and get it.” Asked: “You did not have to call the garage to make any arrangements?”, she answered: “No.” Asked: “Did you ever give Mr. French the extra set of keys?”, she answered: “No, it wasn’t necessary, the other set stayed in the garage. We just needed one set to drive • the automobile out.” Asked: “Whenever he wanted to use the car you would let him use it?”, she answered: “Yes, whenever he would call me.” To the question: “If he hadn’t called you, it would have been all right to you?”, she answered: “Well, I don’t think I would have made a fuss about it, you know, but he had always called me.” To the question: “Just as a matter of courtesy, he would call you, is that right?”, she answered: “Well, it was my car, he called me because it was my car. It was for me to give permission to use it.” The interrogator reminded her of a conversation they had at the bank and asked her whether in that conversation she did not tell him that on the day of the accident Mr. French was going out to the Flossmoor Country Club. She answered that after the accident she was informed that Mr. French went out to the country club to get his wallet, which he had absent-mindedly left in his locker. Asked: “Didn't you tell me he borrowed your car to go out to the Floss-moor Country Club?”, she answered: “Well, he borrowed it, I mean he took it, but I hadn’t spoken to him about it. He borrowed it, whether I had given him permission or not, it was borrowed just the same.” On the Sunday of the accident witness testified that she had dinner with Mr. French’s children. She had expected him to be there for dinner, but he was not. She was informed that he left around 11:00 a. m. They had dinner about 1:30. At 3 or 4 that afternoon the children went to a moving picture theater. On the way there, they took witness to her hotel in Mr. French’s sedan. Asked as to whether Mr. French had ever used her car before without calling her, she answered: “Not to my knowledge.” Asked if Frances French had used her car only once, she answered: “To my knowledge, I mean, as far as was told me.” Asked: “She could have gotten it over at the garage without your knowledge?”, she answered: “Yes.” Asked: “Just like Mr. French could have gotten it over there without your knowledge?”, she answered: “Yes, that’s right.” To the question: “Did you leave any special instructions with the garage as to who was to have your car and who was not?”, she answered: “No.” On redirect examination-she was asked: “If Mr. French or his daughter ever took that car out of the garage, was it taken out with your knowledge or consent?” she answered: “Only the one time for the daughter, and the times he had asked permission.”

Did the evidence and the reasonable inferences therefrom warrant the jury in finding, in effect, that on the day of the collision George D. French was operating Josie Edler’s Chevrolet coupe automobile with her permission 1 Defendant contends that the evidence shows that Mr. French did not have the permission of Miss Edler to use her car, and that nothing in the proof even tends to establish an implied permission to use her car. Defendant points out that when Mr. French called up Miss Edler and asked for permission she would give it to him, but that she did not give him blanket permission to use the car. Also, that Mr. French did not to her knowledge use the car without her permission, and that when he asked for it, she allowed him to take it. Defendant also points out that no one had authority or permission to use the car on the day of the accident, and that she did not give Mr. French general authority or permission to use her car and had not directed the garage authorities to allow him to use it. To sustain the contention that Miss Edler gave Mr. French permission to use the car, plaintiff points out that the parties were engaged to be married; that French arranged with the garage for accommodations for her car with her knowledge and consent; that he at all times paid the garage bills for her automobile, no bills ever being rendered to the assured; that the storage charges and other items for her automobile were charged directly to him and were paid by him; that she kept one set of keys and the other set of keys remained in the car; that when he requested the use of her car she permitted him to use it; that on at least two occasions he used the car with her permission; that he was never refused permission to drive her car; that he at all times had access to the car and in order to use if he merely went to the garage and secured the car without obtaining the express permission of Miss Edler. At times French would get the car at the garage and call for the assured, and at other times he and the assured would go to the garage together and get the car. On the occasions when French got the car and called for Miss Edler, she would not give the garage any instructions as to whether or not he could take the car. She never left any instructions at the garage as to who was to use the car and who was not to use it. She never told the garage not to deliver the car to French. On the day French was driving assured’s car, culminating in the accident, Miss Edler had dinner at the French home with French’s children. His daughter Frances never knew that Miss Edler’s coupe was not the property of French and did not know that it was Miss Edler ’s car. Miss Edler testified that French did not have to make any arrangements to get the car, that they were very lax at the garage and that she did not think it mattered to them. Plaintiff does not maintain that French had express permission from Miss Edler to use the car on the day of the accident. In its reply brief defendant points out that leaving a set of keys in a car is almost a universal custom as to cars kept in public garages. Commenting on the statement of plaintiff that French was never refused permission to drive the car, that he had access to the car and that in order to use it all he had to do was go to the garage and take the car without obtaining permission, defendant states that any person owning an automobile could be charged with giving any other person implied permission to use his or her automobile simply by reason of the fact that they had never been refused permission, and that the car was kept in a garage so that the person taking it out merely had to walk into the garage, turn the key in the ignition and drive the car out.

We have summarized the evidence and stated the positions of the parties. We considered the law applicable to an omnibus clause in Byrne for use of King v. Continental Casualty Co., 301 Ill. App. 447. We differentiated the factual situation in that case from other cases involving the omnibus clause decided in this district. We have held that where the assured permits another to use the car for a specified purpose and that person deviates from the purpose for which permission was given and uses the automobile for some purpose that is not within the scope of the permission given, nevertheless, the operator of a car remains an additional assured. These are known as deviation cases. In the Byrne case we held that the chauffeur took the car without permission and that he was not covered under the omnibus clause at the time of the accident. In determining whether Miss Edler gave Mr. French permission to use her car, we should' consider the evidence as a whole. Viewing the case in the light of the relationship of the parties and considering the testimony as to their movements and conduct and the reasonable inferences to be drawn therefrom, we conclude that the jury was justified in finding that Mr. French, on the day of the fatal collision, was driving Miss Edler’s car with her permission.

Defendant urges that the court erred in giving the following instruction:

‘ ‘ The jury are instructed that if you find from a preponderance of the evidence that Josie Edler, by her previous acts and course of conduct, gave implied permission to said George D. French to drive her automobile on the day in question, then you are instructed that the said George D. French was legally operating said automobile with the permission of the named assured, Josie Edler.”

Defendant argues that this instruction left it entirely to the jury to say what constituted implied permission and gave the jury free rein to decide, as they saw fit, that the express permission of Miss Edler on three previous occasions, that she kept her car in the same garage as French, and that she left a key in her car in the garage, constituted an implied invitation to French to use her car at any time he saw fit without any restrictions whatever. Defendant states that in the instruction the court does not intimate to the jury what acts or course of conduct might constitute an implied permission, and that in any event there is no proof in the record of an implied permission. Defendant also states that this instruction led the jury to place an unwarranted and strained construction on the omnibus clause of the policy, that the instruction gave to the jury an unlimited latitude by which they could decide what facts or theory could constitute an implied permission, and that a mere belief although in good faith on the part of the borrower of the car that he has an unlimited permission to use the owner’s car, is not' sufficient. Plaintiff calls our attention to an instruction given on behalf of defendant. This instruction quotes the omnibus clause of the policy and then tells the jury that if they find from a preponderance of . the evidence under the instructions of the court that Mr. French at the time and place of the accident in question and in operating Miss Edler’s car; had not at the time the permission of Miss Edler to so drive her car, their verdict should be for the defendant. Plaintiff points out that because of this instruction it became necessary for the'court to instruct the jury that implied permission would be sufficient to allow the plaintiff to recover. We agree with the statement of plaintiff that the instruction to which defendant objects does not assume the existence of any facts and that the court did not intimate to the jury that the acts or course of conduct might constitute an implied permission. In our opinion, the court did not err in giving the instruction complained of.

We are of the opinion that the evidence presents a clear case of implied permission. Perceiving no error in the record, the judgment of the superior court of Cook county is affirmed;

Judgment affirmed.

Hebel and Kiley, JJ., concur.