author: JUDGE ROETH

text:
    W. L. Harrison, and Leo Harrison, Partners Doing Business Under the Firm Name and Style of Harrison Motor Company, Plaintiff-Appellant, v. State Bank of Hull, Defendant-Appellee.
    Gen. No. 10,076.
    Third District.
    October 16, 1956.
    Rehearing denied November 26, 1956.
    Released for publication November 26, 1956.
    Schimmel and Schimmel, of Pittsfield, and Rendlen & Rendlen, of Hannibal, Missouri, for appellants.
    "Weaver and Grigsby, of Pittsfield, for appellee.
   JUDGE ROETH

delivered the opinion of the court.

Plaintiff-appellant filed suit against defendant-appellee for the alleged wrongful conversion of items of farm equipment, claiming damage 'in the sum of $3,000. Defendant answered and set up a prior claim to the goods. A trial resulted in a finding that defendant had a prior claim to the goods and judgment was entered for plaintiff in the amount of only $827.32, under a computation hereinafter set out, from which this appeal was perfected.

The facts giving-, rise to the controversy so far as they bear upon this appeal, are not in» dispute. Harrison Motor Company, plaintiff, is a dealer in automobiles and farm machinery in Hannibal, Missouri. On November 12, 1950 one Harry Thomason, who lived at Hull in Pike Cóiínty, Illinois, purchased from Harrison Motor Company two pieces of farm machinery. He executed at the office of plaintiff in Hannibal, Missouri an instrument denominated a conditional sales installment note which is the usual combination note and conditional sales contract. The note was for $1,713.05 and was payable at the office of Harrison Motor Company in Hannibal, Missouri on December 1, 1951. The machinery is described in the contract and .by the terms of the contract, title was retained by .Harrison Motor Company. The contract provided that the machinery was to be kept in Hull, Pike County, Illinois. Thereafter the machinery was delivered to the farm of Thomason in Pike County by the plaintiff. Two payments on the note were subsequently made by Thomason, one of $230 on July 9, 1952 and the other of ¡$271.39 on October 9.

On April 11, 1951 Thomason purchased from plaintiff, two additional pieces of farm machinery. The transaction was handled in the same manner as above noted as to the sale on November 12,1950. The amount of the note was $370 payable November 15, 1951. No payments were ever made on this note.

On July 11,1951 Thomason purchased from plaintiff two additional items of machinery. This transaction-was likewise handled as was the sale of November 12, 1950. The amount of this note was $1,040 payable in equal installments on November 1,1951 and November 1, 1952. One payment of $520 was made'on July 9',* 1952.

In their brief counsel for plaintiffs concede that on the face of the contracts appears “The machinery herein described has been received in good order and condition and will be kept in town of Hull, County of Pike and State of Illinois.” (Emphasis supplied.)

On the back of each of the conditional sales installment notes there is typed the following:

“State of County of -- SS

“The within instrument was filed recorded in this office on the-day of-19— and indexed in Book-page-as No.-.

Signature and Official Title.”

The instruments were never recorded so that the certificates are blank.

Thereafter, Thomason became indebted to defendant, a bank at Hull, Illinois, and on December 24, 1952 he executed his note for $2,500 payable to defendant one year after date. At the same time, he executed a chattel mortgage to defendant to secure this note covering the machinery purchased from plaintiff together with other machinery. This chattel mortgage was recorded in Pike County, Illinois on December 26, 1952. On January 5, 1953 Thomason gave the defendant a financial statement, listing among his assets the property covered by the chattel mortgage and listing as his liabilities a $3,100 real estate mortgage, the note to defendant and $600 “due on combine.”

. The defendant first learned of the conditional sales installment notes held by plaintiff on March 15, 1954. On March 18, 1954 it took possession of the property covered by the chattel mortgage, gave notice of a sale to-be held April 13,1954 and sold the property at public auction on that date.

The amount of the judgment, $827.52 in favor of plaintiff, is based upon the following facts appearing in evidence, to-wit: The gross amount of the sale held April 13, 1954, was $3,753. The property included in the chattel mortgage but not covered by the conditional sales contracts sold for $1,583 and the property covered by the conditional sales contracts sold for $2,170 making a total proceeds of the sale $3,753. There was due defendant on April 13, 1954, as principal and interest on its notes, $2,553.48 and costs of the sale were $177 making a total due defendant on date of sale of - $2,730.48 and after applying on that amount the sum of $1,583 realized from sale of property not included in the conditional sales contracts there was a balance due defendant from the sale of the property included in the conditional sales contracts the sum of $1,147.48.

The property in conditional sale contract of November 12,1950, the oldest of the contracts, sold for $1,450 and after deducting therefrom the balance of $1,147.48 due. defendant there remained $302.52 due plaintiffs from the property involved in this contract.

' The property in conditional sale contract of April 11, 1951 sold for $195. and that in conditional sale contract of July 11, 1951, for $525 making a total due plaintiffs of $1,022.52 of which plaintiffs retained for property purchased by them $195 as per agreement made that day and thus leaving due plaintiffs $827.52.

The primary question for determination is whether udder the foregoing facts, plaintiff’s reservation of title in the conditional sales contract was good as against the defendant or whether defendant’s chattel mortgage established a first and prior lien in favor of defendant. Plaintiff contends that whether a conditional sales contract is effective to enable the vendor to retain title is determined by the law of the state where the chattel is at the time of the sale, and if by the terms of the agreement for a conditional sale the chattel is to be delivered by the vendor to the vendee in another state before the transaction is complete the law of the state where the transaction is completed by delivery to the vendee and not that of the state where the transaction was initiated by the contracts determines whether or not the vendor retains title to the property; and that since Illinois recognizes the validity of conditional sales contracts without recording these contracts are valid as against defendant bank. Defendant contends that the ultimate object of a note is the payment of money and therefore is to be performed at the place of payment; that a note executed, delivered and to be performed in a state other than Illinois, is to be governed and controlled by the laws of such other state; that whether a conditional sale is effective to enable the vendor to retain title is determined by the law of the state where the chattel is at the time of sale; and that since the conditional sales contracts were not filed and recorded in accordance with the statutes of Missouri they are not valid as to subsequent purchasers in good faith or creditors.

The two pertinent sections of the Revised Statutes of Missouri are Sections 428.100 (3515) and 443.460 (3436). Section 428.100 provides in substance that conditional sales contracts shall be void as to subsequent purchasers in good faith and creditors unless evidenced by writing executed, acknowledged and. recorded as provided in cases of mortgages of personal property. Section 443.460 provides in substance that no mortgage of personal property shall be valid as to any party, other than the parties thereto, unless filed in the recorder’s office in the ■ county where the mortgagor or grantor resides, or, if the grantor be a nonresident, then in the recorder’s office of the county where- the property was situated at the time the mortgage was executed. (Emphasis supplied.) Thus under the statutes of Missouri, a conditional sales contract .must, be recorded to be valid as to subsequent pur- ■ chasers in good faith and creditors, while the contrary is true in Illinois.

Reference is made in the briefs of counsel to certain statements appearing in the Restatement, Conflict of Laws. There, it is stated, that the rules, where there ¡is a conflict of law, respecting conditional sales are :analagous to the' rules dealing with chattel mortgages. Section 273-278. Thus the general rule is stated to be that the validity and effect of a mortgage of a chattel are determined by the law of the state where the chattel is at the time when the mortgage is executed, Restatement, Conflict of Laws, Section 265, and by analogy, whether a conditional sale is effective to enable the vendor to retain title is determined by the law of the state where the chattel is at the time of the sale, Restatement, Conflict of Laws, Section 272. One exception is noted in the sections above, namely a situation where the conditional sales contract, by its terms, provides for delivery of the chattel by the vendor to the vendee before the transaction is complete, in which event the law of the state where the contract is completed, i. e., where delivery is made, applies. (Emphasis supplied.) Recognizing these rules, as applying to chattel mortgages, are the Illinois cases of Doumas v. Mormella, 251 Ill. App. 397; Bridges v. Barrett, 126 Ill. App. 122; Farmers & Merchants Bant v. Arnold, 58 Ill. App. 349; Wolf & Son v. Shannon, 50 Ill. App. 396, and Mumford v. Canty, 50 Ill. 370.

Counsel for plaintiff relies principally on Ford Motor Co. v. National Bond & Investment Co., 294 Ill. App. 585, 14 N.E.2d 306. In that case the Court noted the above rules as set out in Restatement, Conflict of Laws. In that case an Illinois auto dealer purchased cars from Ford Motor Co. The contract specifically provided that it was a Michigan contract to be construed according to the laws of Michigan. It contained a reservation of title clause in Ford Motor Co. and specifically provided for delivery of the cars in Chicago. After delivery, the dealer executed trust receipts covering the cars to a third person.

The holder of the trust receipts subsequently undertook to assert a prior claim to the cars. One of the contentions urged was that, the contract between ■ the dealer and Ford Motor Co. being a Michigan contract, under the laws of Michigan it would be construed as a chattel mortgage and was therefore required to be recorded in Illinois. The law of Michigan did not require a recording of this agreement. The Court resolved the question in this language:

“Under Michigan law, although the instrument is held to be a chattel mortgage, recording is not necessary. On the other hand, if we regard the law of Illinois as applicable the agreement is one for a conditional sale which by the law of Illinois need not be recorded. Therefore, whether we regard the law of Michigan or of Illinois as applicable, and whether we regard the agreement as a chattel mortgage in Michigan or a conditional sales agreement in Illinois, it was unnecessary that the agreement be recorded.”

"We do not regard this case in point on the issues here involved. >

Plaintiff also calls attention to designation of the instruments as indicating that they are Illinois contracts. In the upper left hand corner of each instrument there appears the following:

“Conditional Sales Installment Note for Illinois”

In the upper right hand corner there appears:

“Form T-150-2-I11”

A heavy line separates these from the body of the note and contract. Obviously the foregoing are not a part of the contractual provisions of the instruments. They are simply words and symbols used to designate a form that is approved in Illinois for use in sales made in Illinois. Nor do we think that the fact that the instruments provide that the property was to be kept in Illinois is tantamount to a provision for delivery of the chattel by the vendor to the vendee at that place, before the transaction is complete. Furthermore as heretofore noted it is conceded that, in each instance, delivery was acknowledged upon execution of the contracts. In passing, we might observe that a strong inference might readily be drawn from the fact that each instrument bears the typewritten certificate heretofore noted. This is some indication that the vendor knew of the recording requirements of the Missouri statute and expected to comply with those provisions.

Defendant cites Walker v. Lovitt, 250 Ill. 543; Burr v. Beckler, 264 Ill. 230; Harris v. American Surety Co., 372 Ill. 361; Evans v. Anderson, 78 Ill. 558; Barth v. Farmers & Traders Bank, 195 Ill. App. 318; Frankel v. Allied Mills, Inc., 369 Ill. 578; Shircliff v. Dixie Drive-In Theatre, Inc., 7 Ill.App.2d 370; which announce the general rule that the validity, construction and obligation of a contract must be determined by the law of the place where it is made or is to be performed. These cases further hold that the law of the place becomes a part of the contract and, the Courts of another jurisdiction will enforce it in accordance with, its legal effect where made or to he performed. These cases apply the rule to varying types of contracts. Under this rule a note executed and made payable in a foreign state is governed by the laws of that state. However, in the case at bar we are not dealing with the validity of the notes but rather with the validity of the conditional sales contracts. The rules as stated in Restatement, Conflict of Laws are the adaptations of the general rules to the specific types of contracts mentioned.

Our independent search of the authorities discloses the case of Lustig v. Montgomery, 236 Mo. App. 374, 156 S.W.2d 782, a case not cited by either counsel, wherein the court of review in Missouri construed the sections of the Missouri statute hereinbefore noted, on an identical state of facts. There an automobile, which was the sole subject of the law suit, was sold to Pierson by the Dorn Motor Company, whose place of business was on October 6, 1939, the date of said sale, located in the City of St. Louis, Missouri. Pier-son was on the above-mentioned date, a citizen and resident of the State of Illinois. The sale was made in the City of St. Louis, where the automobile was then located. At the time of the sale Pierson executed and delivered to Dorn Motor Company a note and conditional sales contract on said automobile. Immediately after completion of the above transaction Pierson removed said automobile to Jerseyville, Jersey County, Illinois, his home. It was used in the business of Pier-son. The conditional sales contract was never filed or recorded in Missouri or in Illinois.

The controversy arose in this case between an attaching creditor of Pierson and the holder of the conditional sales contract. The plaintiff, the attaching creditor, contended that she was entitled to the automobile as against the conditional vendor for the reason that the conditional sales contract was void as to third persons, it not having been filed in the office of the Recorder of Deeds in St. Lonis, Missouri. The two sections of the Missouri Statute which she relied upon are the same sections hereinbefore referred to. The conditional sales vendor contended that the sections of the statute did not apply for the reason that Pier-son was a resident of the State of Illinois; that immediately after he purchased the automobile its situs became the same as that of its owner; and that it was not “situated” in St. Louis, Missouri, within the meaning of the word “situated,” which it urged meant a permanent location.

The conditional vendor also contended that since the laws of Illinois do not require the recording of conditional sales contracts in order to render them effective as against third parties, it was entitled to enforce the conditional sales contract irrespective of the Missouri statutes.

In disposing of these respective claims, the Court said:

“In the case at bar the automobile was sold by a Missouri owner, in the State of Missouri; and the conditional sales contract was a Missouri contract, made in Missouri and to be performed in Missouri. It is therefore to be construed according to the law of the state where made. (55 C. J. 214.) We think that sections 3486 and 3515, supra, apply to this transaction. The italicized portion of section 3486 specifically makes it applicable; and the conditional sales contract, not having been recorded in the City of St. Louis, is not enforceable against a third party, under the terms of the statute.”

In connection with this opinion the Court cites Patton v. Phoenix Brick Co., 167 Mo. App. 8, 150 S. W. 1116, loc. cit. 1117, which apparently involved an unrecorded conditional sales contract which antedated the chattel mortgage and noted that by the language of that case the Court said:

“But it was not recorded. It was void as to creditors prior or subsequent, even with notice.”

Our search reveals no case which either modifies or overrules the holding in the foregoing case. We are of the opinion that the construction placed upon these same sections of the Missouri statutes, here involved, by the Missouri courts, should be our guide in deciding the question presented to us by this appeal.

The contracts between plaintiff and Thomason were conditional sales contracts in Missouri and their validity is to be tested by the law of that state. To be valid against subsequent purchasers in good faith and creditors, the contracts were required to be recorded by the laws of Missouri! Failure to record these contracts in accordance with these statutory provisions is fatal to the seller’s remedy against a citizen of our state who is within the specified class. This holding makes it unnecessary to determine the other point raised by defendant. ,

The judgment of the Circuit Court will be affirmed.

Affirmed.

REYNOLDS, P. J. and CARROLL, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE FEINBERG

license: Public Domain

text:
    Madeline Bessette, a Minor, by A. F. Bessette, Her Father and Next Friend, Yvonne McAvoy and Clarence D. McAvoy, Appellees, v. Eleanor Loevy, Appellant.
    Gen. No. 46,917.
    First District, Third Division.
    October 17, 1956.
    Released for publication November 28, 1956.

      Peterson, Lowry, Rail, Barber & Ross, of Chicago, for defendant-appellant; A. R. Peterson, Harold W. Huff, and John W. Gilligan, of Chicago, of counsel.
    James A. Dooley, of Chicago, for plaintiff s-appellees.
   PRESIDING JUSTICE FEINBERG

delivered the opinion of the court.

In this action the two plaintiffs, Madeline Bessette, a minor, and Yvonne McAvoy, respectively recovered verdicts for personal injury in the amount of $35 and $10,000. Plaintiff Clarence McAvoy recovered a verdict for $300 for property damage. Defendant’s motion for new trial was denied and judgments entered on the verdicts. Defendant appeals.

The action arises out of a collision between the automobile in which plaintiffs were riding and defendant’s car in the intersection of Wellington and Sawyer Avenues in Chicago. Plaintiff Yvonne McAvoy was operating the automobile east on Wellington Avenue, and defendant was operating her automobile north on Sawyer Avenue. Defendant’s approach to the intersection would be from the right of plaintiff’s car. Both streets in question were paved streets of approximately the same width. There was a “Slow” sign for eastbound traffic located on the south side of Wellington, west of the west curb of Sawyer. The cars collided in the intersection, the front of defendant’s car coming in contact with the right side of the McAvoy car. Madeline Bessette, then four years old, was riding in the McAvoy car.

There were varying versions in the testimony of the witnesses as to which car first entered the intersection, defendant claiming that she had the right of way under the Motor Vehicle Act, because of her approach to the intersection from the right of the plaintiff’s car.

Yvonne McAvoy testified that she was approaching Sawyer Avenue at about 20 miles per hour, and that she saw a sign saying “School” and applied her brakes, slowing down to about 10 or 15 miles per hour to cross the intersection. There was an apartment building at the southwest corner of the intersection. As she reached the intersection, she looked south on' Sawyer Avenue and saw defendant’s car coming north. At that time defendant’s car was about 100 feet away. After starting to cross the intersection, she did not see the defendant’s car again, because she was looking toward the school, which she was approaching.

Defendant testified that she stopped her car about 50 or 100 feet south of Wellington Avenue; that she started up again and had reached a speed of about 10 to 12 mües per hour at the time of the impact; and that her ear and the McAvoy car entered the intersection at the same time. Defendant’s version upon the trial differed from that given by her in a discovery deposition before trial, from which it appears that when she first saw the McAvoy car, it was already in the intersection, and she was at the intersection, and that she was not sure whether or not her front wheels had passed the intersection line.

After the collision, the McAvoy car came to a stop about 15 feet east of the east curb line of Sawyer Avenue, and defendant’s car came to a stop at the northeast corner of the intersection.

No point is raised as to the size of the verdicts. Defendant seeks a reversal because of the ruling of the court on an objection to the final argument of counsel for defendant; the refusal to give an instruction tendered by defendant as to the right of way; and the ruling with respect to the proffer of evidence tending to impeach Yvonne McAvoy.

The record discloses that defendant’s counsel in his final argument to the jury, referring to defendant, stated:

“"When she reaches a point just about even with the south curb of Wellington Avenue, I don’t know, and she doesn’t know, she is not trying to tell you she was over the line or something; she was about at that line. When she reaches that point she sees for the first time the McAvoy car coming and she said it is in the same relative position; it is in the same relative position going east—

“Mr. Sullivan: I object to that. That is his testimony. Counsel wants everybody to believe it was the same as the other car and she said and admitted four or five occasions that the McAvoy car was at or in the intersection.

“The Court: The Court will sustain the objection and the Jury will disregard it.”

This ruling is assigned as error. Plaintiff’s objection to the argument was based upon the holding in Wellner v. New York Life Ins. Co., 331 Ill. App. 360, 365, and cases there cited, wherein this court said:

“The defendant is entitled to a fair trial, free from prejudicial conduct of counsel, who in an argument undertakes to supply facts, or an inference favorable to the plaintiff not based upon any evidence in the record.”

The claimed prejudicial effect upon the jury, resulting from the ruling on the objection, we think was sufficiently removed when counsel for defendant, continuing in his argument, repeated: “The cars were about the same at the intersection.” No objection was made to the latter statement, and the jury had the full benefit of it. We are convinced that upon the state of the record no prejudice resulted from the ruling. Furthermore, the alleged error was not assigned as a ground in the written motion for a new trial.

Defendant tendered the following instruction:

“The jury are instructed that there was in full force and effect at the time and place of the occurrence in question a certain statute of the State of Illinois providing, among other things, as follows:

“ ‘Except as hereinafter provided motor vehicles traveling upon public highways shall give the right-of-way to vehicles approaching along intersecting highways from the right and shall have the right-of-way over'those approaching from the left.’

“The jury have a right to take said statute into consideration in passing upon the questions of negligence and contributory negligence as those terms are defined in these instructions.”

The instruction tendered was in the language of the statute but was incomplete, since it did not contain the qualifications as to speed and distance, and the giving of such an instruction would be reversible error.

In Walker v. Shea-Matson Trucking Co., 344 Ill. App. 466, 472, we said:

“Our courts of review have repeatedly held that the right-of-way statute does not give an automobile approaching an intersection the absolute right of way-over one approaching from the left without regard to the distance that vehicle may be from the intersection or the speed at which the vehicles are traveling. See Gauger v. Mills, 340 Ill. App. 1; Alexander v. Sullivan, 334 Ill. App. 42; Bentley v. Olson, 324 Ill. App. 281; Paliokaitis v. Checker Taxi Co., 324 Ill. App. 21; and Krawitz v. Levinstein, 320 Ill. App. 618. Although the instruction was in the language of the statute a modified construction was placed upon the statute by our courts of review and it should have been framed according to that construction and the jury properly instructed as to its legal effect. (Moran v. Gatz, 327 Ill. App. 480; Burns v. Jackson, 224 Ill. App. 519; Hemphill, Illinois Jury Instructions, vol. 1, sec. 237, p. 112.)”

Defendant argues that the omission from the tendered instruction as to speed and distance was supplied by plaintiff’s instruction, which reads as follows:

“The court instructs the jury that if a vehicle approaching an intersection shall have reached and entered upon such intersection at a time when another vehicle is approaching said intersection from the right and such vehicle so approaching said intersection from the right is so far from said intersection that, if driven at a lawful and reasonable rate of speed under the circumstances, it will not reach the said intersection until the vehicle approaching from the left, if driven with due care, shall have safely crossed said intersection, then such vehicle approaching from the right shall not have the right-of-way over such vehicle approaching said intersection from the left.”

The instruction given for plaintiff made no reference to the right-of-way statute, and although another instruction directed the jury to consider all of the instructions as a series, it is clear to us that the jury could not know from the defendant’s tendered instruction that it referred to the right-of-way instruction given for plaintiff. The jury might readily be led to believe that the statute quoted in defendant’s tendered instruction gave defendant the absolute right of way.

Defendant contends that the trial court erred in denying her request to supply the qualifications lacking in the defendant’s tendered instruction. No instruction was tendered to the court containing the lacking qualifications referred to, so as to afford to the trial court an opportunity to pass upon it, and we find nothing in the report of proceedings of the trial that such a request was made of the court when the instructions were being considered and before they were given to the jury.

Defendant upon the trial sought to impeach the witness, Yvonne McAvoy, after she testified that she developed double vision and had referred to it in her discovery deposition. A discovery deposition was taken of this plaintiff, and defendant sought to show by this deposition that she made no mention whatever of double vision when asked concerning her complaints of injury or ill-being. Defendant called the court reporter to the witness stand and asked the witness to read from her shorthand notes all the questions and answers appearing in the discovery deposition. She testified that she correctly transcribed her shorthand notes as to all questions and answers in the discovery deposition. The deposition was offered in evidence for the purpose of impeachment, which the court, upon objection, refused to admit. It appears there were many matters in the discovery deposition which would have no relation to the point of impeachment.

Rule 19 — 10 of the Supreme Court provides:

“Discovery depositions may be used only (a) for the purpose of impeaching the testimony of deponent as a witness in the same manner and to the same extent as any inconsistent statement made by a witness . . .

Under the rule noted, it would have been error to allow the reporter to read to the jury the entire deposition or to receive the deposition in evidence, which contained matters having no bearing upon the subject of impeachment.

We think the defendant had a fair trial, and the judgments are affirmed.

Affirmed.

KILEY and LEWE, JJ., concur.


text:
    People of State of Illinois, Defendant in Error, v. Frank Altiere, Plaintiff in Error.
    Gen. No. 46,963.
    First District, Third Division.
    October 17, 1956.
    Released for publication November 28, 1956.

      Ramsey, Heinze and G-runnet, of Chicago, for plaintiff in error; Robert W. Heinze, of Chicago, of counsel.
    John Gutknecht, State’s Attorney, of Cook county, for defendant in error; Charles D. Snewind, Francis X. Riley, and William Sylvester White, Assistant State’s Attorneys, all of Chicago, of counsel.
   PRESIDING JUSTICE FEINBERG

delivered the opinion of the conrt.

Defendant was indicted in the Criminal Court of Cook County under section 425, Chapter 38, Illinois Revised Statutes, 1955, which provides:

“Whoever, willfully and maliciously destroys, injures or defaces any building or fixture attached thereto, without consent of the owner, or destroys, injures or secretes any goods or chattels of another, shall be fined not exceeding $500, or confined in the county jail not exceeding one year, or both, in the discretion of the court.”

A jury was waived, and upon a trial defendant was found guilty and fined $200, from which judgment he prosecutes this writ of error.

The record discloses the following material facts. Defendant was a police officer of the City of Chicago. On the morning of October 12,1955, between the hours of 3:30 and 4:00 A. M., defendant entered a tavern conducted as a night club on West Madison Street in Chicago, and there met two men, whom we shall refer to as McManus and Reed. A woman, friend of defendant, working at the tavern as a performer, was with McManus and Reed. Defendant was invited to drink with McManus and Reed, and the woman and he were later invited by McManus and Reed to come to their room at the Morrison Hotel, giving defendant the room number. McManus and Reed left, and a short while later defendant, accompanied by the woman, proceeded to the Morrison Hotel. Defendant testified that he tried to persuade her not to go to the room, but she insisted she would have one drink with McManus and Reed. She then called the room in question on the telephone. Defendant and the woman went to the room, where they found McManus and Reed. Defendant had one drink, and she had three Scotch whiskies.

According to defendant’s testimony, he left the room and went to the lobby of the hotel to get some cigarettes for the woman. When he returned to the room, he knocked on the door but got no response. He heard her scream, “Frank, come and get me.” He kept knocking hut was refused admission, and the woman continued to cry out, “Frank, come and get me.” Defendant threatened to break down the door unless they admitted him, but McManus and Reed refused to admit him. Someone summoned George Christensen, the house detective for the Morrison Hotel. When the latter reached the room, defendant told him what had occurred. Christensen knocked on the door and got no response. At that time the woman was still calling, “Frank, come and get me.” Christensen then told defendant he would get a passkey and return. At this point defendant asked Christensen what he was to do in the meantime in the event the situation got worse, and defendant testified that Christensen said to him, “Use force if necessary. Shoot the lock off. Being a Police Officer, you know what to do.” A few minutes later defendant fired several shots from his gun, shooting the lock off the entrance door to the room and damaging the doorjamb and frame around the lock.

At that moment, house officer McGrath, in the company of Christensen, appeared on the scene, and they demanded admission to the room, identifying themselves as house detectives.

Charles Pierson, a police lieutenant of the City of Chicago, and other police officers arrived at the scene and gained admission to the room. The witness Mc-Grath testified that when McManus finally opened the door, he was wearing the top of his pajamas and a pair of shorts, and that he saw the woman lying naked on the bed; that when he and other officers walked into the room, defendant went in with them, walked over to her, covered her, and asked her if she had been hurt.

Pierson, the police lieutenant, testified that when he learned defendant was a police officer, he took his gun from him and placed him under arrest. He testified that he took all of the witnesses to the police station, and there obtained statements from McManus and Reed in the presence of defendant, as well as a statement from the defendant. When he interrogated the defendant and asked him to relate what happened, defendant told him that the woman had called out two or three times for “Prank,” (meaning the defendant) to come and get her; th(at she was screaming; that he lacked at the door, demanding admission, but Mc-Manus and Reed refused to admit him; and that he fired the shots because he heard the woman screaming.

The damaged lock, doorjamb, and frame are the subject property of the charge of malicious mischief.

Bishop on Criminal Law, Ninth Edition, Section 996, p. 744, discussing the charge of malicious mischief, states the rule to be:

“The act of mischief must be the product of malice. Malice, either express or implied, is an essential ingredient of the offence. This is evident from the very name malicious mischief. The act must be done with wicked or malicious intent or motive wrongfully and intentionally without just cause or excuse. A person therefore is not guilty when he acts under an honest though erroneous belief of authority in the exercise of a supposed right or in the performance of a supposed duty. If it be shown that the defendant acted in good faith, or under a claim of right, the charge of malicious mischief cannot be sustained.”

Defendant seeks reversal of this judgment upon two grounds: (1) that the owner of the subject property gave his consent to shoot off the lock; and (2) that the evidence fails to prove a malicious intent to injure the property of another.

The owner’s consent to the act committed rests in defendant’s testimony that Christensen, the house detective, authorized him to shoot off the lock if it became necessary. Christensen was not called as a witness by the State, nor is any reason assigned for the failure to produce him, hence there is no denial in the record of defendant’s testimony as to what Christensen told him.

In People v. Maertz, 375 Ill. 478, 480, where consent of the owner was relied upon as a defense, it was said:

“Until some evidence is introduced tending to show consent was given, the presumption prevails, and it is not incumbent on the People to prove want of consent. Here there was not a scintilla of evidence of consent.”

It was not incumbent upon the defendant to inquire whether Christensen had the authority to direct the defendant as he did. It is sufficient, under the circumstances, that he authorized defendant to shoot the lock off, if necessary, leaving the element of necessity for the defendant to determine.

Defendant’s version of the occurrence that he heard the woman cry out several times, “Prank, come and get me,” is corroborated by Lieutenant Pierson. There is no showing that, when Lieutenant Pierson took the statements in the presence of defendant at the police station, any of them denied or contradicted the version given by defendant that the woman cried out several times for the defendant to come and get her.

McManus and Reed were not produced as witnesses. There is no showing that any explanation was given by McManus and Reed to Lieutenant Pierson as to why they refused admission to the room when defendant returned and rapped on the door to be admitted. If the woman screamed for help, as related by defendant, and he in good faith thought she was in danger, the very refusal of McManus and Eeed to admit him to the room would accentuate his belief of her danger. Under such belief, even without the consent of the owner, his desire to rescue the woman and protect her from harm, and his undisputed testimony as indicated, would remove from the act committed, the malicious intent required by the statute under which he was indicted.

Where acts or circumstances are attributable to either an innocent or a criminal cause, the innocent hypothesis will be adopted. People v. Potter, 5 Ill.2d 365, 372; People v. Lynn, 385 Ill. 165, 173; People v. Burgard, 377 Ill. 322, 330.

In People v. Sheppard, 402 Ill. 347, 351, it was said:

“In criminal cases it is the duty of this court to review the evidence, and, if there is not sufficient credible evidence, if it is improbable or unsatisfactory, or not sufficient to remove all reasonable doubt of defendant’s guilt and create an abiding conviction that he is guilty, the conviction will be reversed.”

People v. Cosper, 2 Ill.App.2d 168 (Abst.); People v. Brophy, 10 Ill.App.2d 334 (Abst.).

We are not confronted upon this appeal with the question whether the conduct of defendant was unbecoming a police officer.

We think the record supports the two grounds urged for reversal, and accordingly the judgment is reversed.

Eeversed.

KILEY and LEWE, JJ., concur.


author: JUDGE LEWE

text:
    Antonette Miszczak, Appellant, v. Maytag Chicago Company, et al., Appellees.
    Gen. No. 46,812.
    First District, Third Division.
    October 17, 1956.
    Released for publication November 28, 1956.
    Arthur S. Gomberg, and Joe Reiff, both of Chicago, for appellant; Samuel Nineberg, of Chicago, of counsel.
    Vogel & Vogel, of Chicago, for appellee, Maytag Chicago Co.; Leslie H. Vogel, Robert H. Vogel, and Robert B. Johnstone, all of Chicago, of counsel.
    Crowe, Yates, Abrahamson & Fisk, of Chicago, for appellee, Wolf Furniture House, Inc.; Tom L. Yates, of Chicago, of counsel.
   JUDGE LEWE

delivered the opinion of the court.

Plaintiff brought an action to recover damages for personal injuries alleged to have been sustained when her left hand and arm were drawn into an electrically driven clothes wringer attached to a washing machine. Jury trial was waived. The court found the defendants not guilty and entered judgment accordingly. Plaintiff appeals.

The material facts are stipulated. May 18, 1951, Bernice Nowak, plaintiff’s daughter, purchased a Maytag Washing Machine from defendant Wolf Furniture Company. The washing machine was delivered to defendant Wolf by defendant Maytag Chicago Company, a distributor for the manufacturer. Wolf delivered the machine to Bernice Nowak in the same crate in which it was received by Wolf from defendant Maytag.

The machine was equipped with a tension release bar, which when pushed or pulled was designed to cause the rollers to separate and release the tension. Shortly before the purchase of the machine here involved, a salesman of defendant Wolf demonstrated the safety features of a similar washing machine to Bernice Nowak. During the course of the demonstration, the salesman told Bernice Nowak that “a slight push or pull on the release bar would release the tension on the wringer.”

March 27, 1953, the day of the occurrence, the plaintiff came to visit her daughter Bernice Nowak who at that time was washing clothes. Before the washing was finished, Bernice was called away. Then plaintiff proceeded with rinsing and wringing her daughter’s wash. While placing some clothing into the wringer, her fingers became caught in the pocket of a shirt, and her hand and arm were drawn into the wringer. Before her fingers, hand or arm came into contact with the rollers of the wringer, plaintiff says she pressed the tension release bar. She also testified that after her fingers were caught, she again pressed the release bar; and that in neither instance was the tension on the rollers released.

From May 18, 1951 to March 27, 1953, Bernice Nowak used the washing machine “regularly.” During this period, she also used the release bar after the operation of the wringer had stopped. On all such occasions, when the wringer was not in operation, pressure on the release bar released the tension on the rollers.

At no time prior to plaintiff’s alleged injuries did her daughter Bernice complain to defendant Wolf or anyone concerning the operation of the tension release bar on the washing machine. Nor did Bernice Nowak observe any defects in the machine.

The amended complaint alleges in substance that at the time of the purchase of the washing machine here in controversy defendant Wolf gave to Bernice Nowak a booklet issued by the manufacturer of the washing machine intended for the purchaser thereof which contained a warranty reading as follows:

“Tension Release

“Both sides of the Roller Water Remover are equipped with a red control bar. This is the Tension Release Bar. When given a slight push or pull at any point, it will automatically release tension. Be sure the tension is released while the washer is not in use between washings.”

The amended complaint further alleges that defendant Wolf through its salesman impliedly and expressly warranted that the washing machine was fit for the purpose intended; that the tension release worked properly and would continue to do so without repair for a minimum period of five years.

The amended complaint also alleges that the washing machine was so constructed as to be wholly unfit for the purpose for which it was intended; that it was dangerously defective and that its defects were not evident .from the inspection thereof and were unknown to Bernice Nowak or her mother, the plaintiff.

Defendants 'Wolf and Maytag answered denying substantially all the charges in the complaint as amended.

The concluding paragraph of the stipulation of facts reads:

“Understanding between the parties that the order entered by the court is an order finding that the plaintiff is without a cause of action as a matter of law, is not based on conflicting evidence, and has the same effect as if a jury were instructed to return a verdict in favor of defendants.”

Plaintiff says that at the outset we must remember that all of the allegations of the complaint, as amended, and the stipulation of facts must be taken as true. We think plaintiff’s position is untenable. Issues were joined by each defendant. The allegations of the complaint, as amended, upon which liability of defendants could be predicated were denied in defendants’ respective answers. On the trial of the case it was therefore necessary for the plaintiff to prove these allegations. Since no material allegations of the complaint, as amended, were admitted by defendants, we must assume that the trial judge made a judicial determination of the issues raised by the pleadings and drew inferences from the facts as recited in the stipulation.

Plaintiff’s major contentions are that each defendant is liable for the defective condition of the washing machine and that each of them breached their warranty.

With respect to plaintiff’s first contention there are no facts appearing in the stipulation tending to prove that the washing machine involved was so constructed as to be unfit for the purpose for which it was intended. Nor is there any proof of a specific defect in the tension release bar.

In support of her position plaintiff cites Lindroth v. Walgreen, 407 Ill. 121; Brown v. Sterling Abrasives Division of Cleveland Quarries Co., 5 Ill.App.2d 1; Lili v. Murphy Door Bed Co. of Chicago, 290 Ill. App. 328; Colbert v. Holland Furnace Co., 241 Ill. App. 583; Ebbert v. Philadelphia Electric Co., 330 Pa. 257, 198 Atl. 323; Segal v. Carroll Furniture Co., 51 Ga. App. 164, 179 S. E. 775; and Pearlman v. Garrod Shoe, 276 N. Y. 172, 11 N.E.2d 718. In all of the cases last cited except Lindroth v. Walgreen, there was proof as to the nature of the alleged defect. Therefore, we do not regard those cases as decisive of the issues here.

In Lindroth v. Walgreen, Mrs. Lindroth, plaintiff’s mother, purchased a vaporizer from the defendant Walgreen, which was manufactured by the defendant Knapp-Monarch Company. At the time of the purchase, she inquired whether the vaporizer had a “cutout” to prevent overheating. The salesclerk of defendant Walgreen assured Mrs. Lindroth that the vaporizer was safe, that it would operate for two hours without boiling dry, and there was no danger of fire within this period. On the strength of these representations, Mrs. Lindroth purchased the vaporizer.

When Mrs. Lindroth arrived home, she read the instructions, and following them, put the vaporizer into operation next to the minor plaintiff’s bed. Several minutes later, Mrs. Lindroth looked in upon the sleeping child and, finding the vaporizer functioning properly, she went downstairs. About 45 minutes later, a neighbor rushed in and told her that the bedroom was on fire. The plaintiff was badly burned as a result of the fire.

In the Lindroth case, plaintiff’s theory was that the defendant manufacturer was negligent and breached its warranty. As to defendant Walgreen, the plaintiff contended that the representations of the salesclerk amounted to an express warranty, and that Mrs. Lindroth having relied thereon, this warranty was breached.

In that case, it was urged that the plaintiff must prove the defect before it may be inferred that such defect caused the injury complained of. Our Supreme Court, in adverting to Carter v. Yardley & Co., 319 Mass. 92, 64 N.E.2d 693, said at page 134-135.

“In that case, as in this, the precise nature of the defect in the perfume was not shown, but the fact that the plaintiff was burned was held sufficient to raise a probability that a defect existed. In the instant case it could as well be said that the fact the vaporizer was melted and the room was ablaze was sufficient to raise the probability that the melting and fire was the result of some defect in the vaporizer.”

In the Lindroth case, the inference that the instrumentality was defective and therefore imminently dangerous was drawn from the physical circumstances surrounding the fire and the injury. No physical circumstances appear in the agreed statement of facts in this case, similar to those in the Lindroth case, to support an inference that the washing machine was defective. In the Lindroth case, the vaporizer was used shortly after it was purchased. In this case the washing machine was used regularly for almost two years before plaintiff was injured.

In the instant case nowhere in the statement of facts or in plaintiff’s briefs does plaintiff suggest any possible cause of the alleged failure of the tension release bar. She was alone when the occurrence took place. So far as appears from the agreed statement of facts, no attempt was made to discover the cause of the alleged defect, though plaintiff and her daughter were, and continued to be, in the sole possession of the washing machine.

In Rotche v. Buick Motor Co., 358 Ill. 507, plaintiff brought suit against the dealer from whom he purchased an automobile and the manufacturer to recover damages for personal injuries received when the automobile left the road and turned over. In announcing the governing rule with respect to the burden of proof, the Court said at page 516,

“The mere fact that an accident resulting in an injury to a person or in damage to property has occurred does not authorize a presumption or inference that the defendant was negligent. The burden was upon the defendant in error to prove by competent evidence, direct or circumstantial, that the plaintiff in error was guilty of negligence in the manufacture or assemblage of the automobile in question.”

In the case at bar, in the absence of any facts in the agreed statement tending to prove any defects in the tension release bar, we are impelled to hold that the plaintiff has failed to make out a cause of action on the theory that the washing machine was defective.

Turning now to the plaintiff’s remaining contention that each of the defendants are guilty of a breach of warranty, we shall consider first the plaintiff’s claim against the defendant Wolf. According to the complaint as amended, Wolf expressly warranted to Bernice Nowak that the tension release bar functioned properly and would continue to do so for a period of five years. It should be noted that there are no facts in the stipulation tending to prove that the washing machine was defective when it left the hands of defendant Wolf. Nor does it appear that the condition of the machine at any time during its long use by plaintiff’s daughter was any different from its condition when she purchased it. It is conceded that the tension release bar always functioned when it was used by plaintiff’s daughter. Why it failed when used by plaintiff is left to pure conjecture. -

The complaint as amended says that the defects in the machine were not “evident from the inspection thereof.” Plaintiff does not suggest how defendant could have detected the alleged defects by a reasonable inspection.

Under these circumstances does the existence of the alleged warranty dispense with the necessity of proof that the machine was defective? We think not. In our view, the trial court’s finding in favor of the defendant Wolf was proper.

As to plaintiff’s claim against defendant Maytag, the pleadings show that its answer denied the making of the alleged warranty, and that the stipulation of facts made no reference to an alleged warranty given hy Maytag. Therefore, the absence of any reference to the alleged Maytag warranty in the stipulation of fact justifies the findings of the trial court.

For the reasons given, the judgment is affirmed.

Judgment affirmed.

FEINBERG, P. J. and KILEY, J., concur.


author: JUSTICE CROW

text:
    William G. Konrad, Public Administrator of Estate of Robert Lyle Jones, Deceased, for Use of Bernard Kelley, a Minor, by Kathleen Benson, His Mother and Next Friend, Plaintiff-Appellant, v. Hartford Accident & Indemnity Company, Defendant-Appellee.
    Gen. No. 10,948.
    Second District.
    October 22, 1956.
    Rehearing denied November 20, 1956.
    Released for publication November 20, 1956.

      Robert E. Dolpb, and Richard C. Hamper, both of Aurora, for plaintiff-appellant; Robert E. Dolph, and Richard C. Hamper, both of Anrora, of connsel.
    Allen, Matthews, Jordan & Dean, of Anrora, for defendant-appellee; Everett Jordan, and Joseph T. Snhler, both of Anrora, of connsel.
   JUSTICE CROW

delivered the opinion of the conrt.

This is an appeal in a garnishment action from a judgment entered by the Circuit Court of Kane County, finding the issues in favor of the garnishee-defendant, Hartford Accident & Indemnity Company, a corporation. The action was brought for the use of Bernard Kelley, a minor, by his mother and next friend, against the garnishee-defendant, to collect a final judgment in the sum of $16,000, theretofore entered in the Circuit Court of Kane County, in a prior personal injury action brought by the minor, by his mother and next friend, against William Gr. Konrad, public administrator of the estate of Robert Lyle Jones, deceased, the administrator being the nominal plaintiff in this garnishment action for the use of Bernard Kelley. It is based upon an insurance policy issued by Hartford Accident & Indemnity Company, garnishee-defendant, to cover all vehicles of the Q Candy and Cigar Co., a corporation, the named insured, which was the employer of Robert Lyle Jones.

There is no dispute about the essential facts. There was a stipulation in this garnishment action that the transcript of the testimony in the prior personal injury action might be introduced in evidence in this case, that the insurance policy might be introduced, and that it covered the truck in question, subject to the terms and conditions of the policy, that the pleadings in the prior personal injury case might be introduced, and that certain other facts were agreed. From the stipulation it appears' that Robert Lyle Jones, the deceased, was hired by the Q Candy and Cigar Co., a corporation, of Aurora, by its president, Edward Baratz; that he was hired approximately ten days prior to the date of the accident; for the first nine or ten days a supervisor went with the deceased on the route instructing him in his duties; at the time the deceased was hired he was informed by Mr. Baratz that at the end of the training period if he was satisfactory he would be assigned a truck; he must sign for the truck and all merchandise therein; and the truck must be kept locked at all times when the driver was not in the truck. He was further informed that if the truck was taken at the end of the day to his home, he would be responsible for the truck and the merchandise when he checked in the next morning; the truck must be left in a garage or the driveway of his home; if the truck was kept in the driveway the merchandise must be removed from the truck, the truck must be kept locked, and could not be used for any purpose except business. The day of the accident was the first day that the deceased, Robert Lyle Jones, had the truck alone; prior to that time the route supervisor who had been training him had taken the truck and kept it overnight; on the day of the accident the deceased, Robert Lyle Jones, was given possession and control of the truck by the Q Candy and Cigar Co. under the terms and conditions as heretofore set forth; the route supervisor informed the deceased that if he had a garage the truck must be placed in the garage at night, that if he had no garage it must be placed in the yard and kept locked until the next morning, and he was specifically informed that under no circumstances was the truck to be used for any purpose except business; he was to prepare a daily report of the merchandise on hand and the merchandise sold, and on this occasion would have had to make a report to the checker in the warehouse of the company the next morning; Robert Lyle Jones was given the keys to the truck by Baratz, or the supervisor; and the company paid all the expenses of the truck, including gas and oil, and including private garage expense if the driver rented a garage.

Such of the evidence in the original personal injury action as is abstracted here is, so far as now relevant, to the effect that on October 4, 1951 Robert Lyle Jones was a driver-salesman for the Q Candy and Cigar Co., was assigned the truck in question, which was owned by the company, the driver-salesmen come in (to the company office or warehouse) about 7 a.m. and are finished about 5 p.m., and their hours depend on what stops they make; the collision concerned occurred October 4, 1951 shortly before midnight on Jericho Eoad, somewhere near Aurora; Jones had invited Kelley (and another party), acquaintances, to get in the truck, saying he’d give them a ride home, though Jones apparently took them on a ride to see how fast the truck would go, evidently over Kelley’s protests, and the collision occurred during the course of the ride; Jones had that day brought the truck back to his home a few minutes before 5 p.m., ate supper, sorted his merchandise, took it back to the truck, went downtown in the truck, and came back home at 9:30 p.m.; the ride with Kelley and the collision occurred later that evening.

The insurance policy is called “Comprehensive General Automobile Liability Policy”; the Q Candy and Cigar Co., a corporation, is the named insured; the “coverage” is, for bodily injury liability, “$25,000.00 each person”; it refers to an endorsement described as “Illinois truck filing A-1093 A-1235”, which we shall set out separately hereinafter; under “insuring agreements”, “I — Coverage A Bodily injury liability” reads: “To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury . . . sustained by any person and caused by accident . . .”; also under “insuring agreements”, it provides: “III — Definition of insured. — The unqualified word ‘insured’ includes the named insured and also includes . . . (2) under coverages A . . . any person while using an owned automobile, . . . and any person . . . legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission . . .”; under “declarations” there is a place to state the “purpose of use” of the vehicles covered, but as to the “owned automobiles” which are listed and which include the truck here concerned there is nothing stated under “purpose of use,” although as to what are called “hired automobiles” the “purpose of use” as to one is stated as “commercial” and as to another “pleasure and business”; under “conditions”, paragraph 3 — “Definitions,” (e) “purposes of use,” the terms “commercial” and “pleasure and business” are defined; under “conditions,” paragraph 8 — “financial responsibility laws” reads: “Such insurance as is afforded by this policy for bodily injury liability . . . shall comply with the provisions of the motor vehicle financial responsibility law of any state . . . which shall be applicable with respect to any such liability arising out of the ownership, maintenance or use ... of any automobile insured hereunder to the extent of the coverage and limits of liability required by such law, but in no event in excess of the limits of liability stated in this policy . . . .”

Attached to and forming a part of the policy is an “endorsement for motor carriers policies for bodily injury liability . . . under section 16 of the Illinois Truck Act,” which, so far as relevant, reads: “The policy to which this endorsement is attached is a motor vehicle bodily injury liability and property damage liability policy, and is hereby amended to assure compliance by the Insured, as a carrier, with Section 16 of ‘The Illinois Truck Act,’ and the pertinent rules and regulations of the Department of Public Works and Buildings of the State of Illinois.

“In consideration of the premium stated in the policy to which this endorsement is attached, the company hereby agrees to pay any final judgment recovered against the insured for bodily injury to . . . any person . . . resulting from the operation, maintenance or use of the motor vehicles described under the policy and subject to the ‘Illinois Truck Act’ by reason of the design or use of such vehicles, subject, however, to the limits of liability set forth herein.

“Any person . . . who has secured such judgment . . . shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. . . .

“The liability of the Company under this endorsement extends to such losses, damages, injuries, or deaths whether occurring on the route or in the territory authorized to be served by the Insured or elsewhere within the boundaries of the State of Illinois.

“The liability of the Company under this endorsement on each described motor vehicle shall be a continuing one, notwithstanding any recovery hereunder, and on all such described motor vehicles shall be limited to the following amounts:

“$5,000.00 limit for bodily injuries to or death of one person; . . .

“Nothing contained in the policy or any other endorsement thereon, nor the violation of any of the provisions of the policy or of any endorsement thereon by the Insured, shall relieve the Company from liability hereunder or from the payment of any such final judgment.”

It is the plaintiff-appellant’s theory, in substance, that the trial court erred and should have entered .judgment against the garnishee-defendant for $16,000 and interest at 5% since May 27, 1953, because: (1) the court did not apply what the plaintiff says is the public policy of Illinois regarding the “omnibus clause” of automobile liability policies; (2) the court did not take into consideration that financial responsibility is a statutory requirement in the case of use of a truck and that that fact implements the public policy concerning the “omnibus clause”; and (3) under the “omnibus clause”' of this policy, the use at the time in question of the truck by Robert Lyle Jones was with the permission of the Q Candy and Cigar Co., the named insured, within the terms and conditions of the policy, and Jones was, therefore, an insured or additional insured thereunder.

The garnishee-defendant-appellee’s theory is that Jones, the driver of the truck, at the time of the accident had parked the truck in accordance with his instructions, and subsequently took it for his own pleasure; at the time of the accident Jones was driving the truck without the permission of the named insured, the owner, Q Candy and Cigar Co., either express or implied, within the terms and conditions of the omnibus clause, and was, therefore, not an insured or additional insured thereunder; and, hence, that the judgment finding the issues for the garnishee-defendant was correct.

Under the insurance policy the fundamental obligation of the garnishee-defendant insurer is (within the policy limits of liability) “To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury . . . sustained by any person and caused by accident . . .”; or, as the endorsement thereto says, “. . . to pay any final judgment recovered against the insured for bodily injury to . . . any person resulting from the operation, maintenance or use of the motor vehicles described under the policy and subject to the Illinois Truck Act . . . .”

The unqualified word “insured,” as used therein, includes not only the named insured, Q Candy and Cigar Co., a corporation, but also “any person while using an owned automobile, . . . and any person . . . legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission . . . .” That is the so-called omnibus, or extended coverage, or additional insured clause.

Further, such insurance as is afforded by the policy —“shall comply with the provisions of the motor vehicle financial responsibility law of any state . . . which shall be applicable with respect to any such liability arising out of the ownership, maintenance, or use ... of any automobile insured hereunder to the extent of the coverage . . . required by such law . . . .” Sec. 42-11 of the Motor Vehicle Law, Ch. 95½, Ill. Rev. Stats. 1951, par. 58k, provided that: “A motor vehicle liability policy as said term is used in this Act, shall be taken to mean a policy of liability insurance issued by an insurance carrier . . . which policy shall meet the following requirements: . . . (2) Said policy shall insure the person named therein and any other person using or responsible for the use of said motor vehicle or vehicles with the express or implied permission of said insured . . . .” Also, under par. 58k, — “Every motor vehicle liability policy . . . accepted as proof under this Act shall be subject to the following provisions, whether or not contained therein: . . . (f) An insurance carrier which has issued a motor vehicle liability policy . . . meeting the requirements of this act shall, upon the request of the insured therein, deliver to the insured for filing, or at the request of the insured shall file direct, with the Secretary of State, an appropriate certificate showing that such policy or policies have been issued, . . . Such a policy of liability insurance is one of the alternate methods of making proof of financial responsibility under that act, and such proof may be made by filing with the Secretary of State the certificate of the insurance carrier that it has issued such policy: par. 58 (e). Such proof of financial responsibility is required in the event of the suspension or proposed suspension by the Secretary of State of the registration certificates and license plates issued for a motor vehicle in the name of a person whose operator’s or chauffeur’s license has been revoked, or whose driving privileges have been suspended, or in the event of a suspension or proposed suspension of a person’s, operator’s or chauffeur’s license: pars. 58 (b), 58 (c), 58 (1), 35 (j). Proof of such financial responsibility may be made voluntarily by or on behalf of any person: par. 58 (f). The clause in the policy that it “shall comply with the provisions of the motor vehicle financial responsibility law of any state . . . to the extent of the coverage . . . required by such law . . .” presumably refers to that Motor Vehicle Law, among possibly other things, and evidently constitutes, in substance, a voluntary making, in advance, of proof of financial responsibility thereunder, subject to the ministerial or clerical duty on the insurer, upon the request of the insured, to deliver to the insured for filing or to file direct with the Secretary of State a certificate showing that the policy had been issued: Cf. Landis for use of Talley v. New Amsterdam Casualty Co. (1952), 347 Ill. App. 560, pet. for leave to appeal denied, 351 Ill. App. xiv.

Under par. 58k thereof — “(2) said policy shall insure the person named therein and any other person using or responsible for the use of said motor vehicle or vehicles with the express or implied permission of said insured . . . . ” That is the so-called statutory omnibus, or extended coverage, or additional insured clause, which has, in effect, evidently been here voluntarily adopted by the insurer; statutory provisions applicable (either mandatorily or by voluntary adoption) to a contract of insurance, and in force at the time of the making thereof, form a part of such contract and should be construed in connection with the policy: 22 I. L. P., p. 209. There is not much difference between that and the omnibus clause written in the policy itself, except that the omnibus clause in the policy says “actual” use, whereas the statute says simply “using,” and the policy says merely “permission,” whereas the statute says “express or implied” permission. It has been said, however, that, so far as the particular problem presented here is concerned, the courts have not so far generally attributed any particular significance or importance to “actual use” as distinct from “using,” and no case had so far been found by the editors in which the result turned on any asserted distinction between the two terms: 5 A. L. R. (2), p. 607; and we’ve been-referred to no Illinois cases, nor have we found any, making a distinction. Further, there can hardly be any doubt, and the defendant apparently acquiesces, that the term “permission,” even if standing alone, includes, in this connection, implied as well as express permission: 5 A. L. R. (2), p. 608; Goff v. New Amsterdam Casualty Co. (1943), 318 Ill. App. 586. The statutory omnibus clause, in any event, must be, under the circumstances here, considered as voluntarily adopted by the insurer and written into this policy, and if there be any real differences between that and the similar clause stated in the policy, which we doubt, the statutory omnibus clause must control.

The first basic question, here, is: was Robert Lyle Jones a person using or responsible for the use of this motor vehicle with the express or- implied permission of the named insured, Q Candy and Cigar Co:, a corporation, under the omnibus clause, and was he himself hence an insured or additional insured under this policy? We think he was.

When the named insured has initially once given permission to another person to use his motor vehicle but that person deviates from the permission granted, Illinois follows the so-called initial permission rule to the effect that the user need only to have received permission to take the vehicle in the first instance, and any use while it remains in his possession is with “permission,” under the omnibus clause, though that use may be for a purpose not contemplated by the named insured when he parted with possession of the vehicle; if the original taking by the user is with the named insured’s consent, every act of the user subsequent thereto while he is driving the vehicle is with the named insured’s permission so far as the omnibus clause is concerned, assuming there is no termination of permission; a deviation from the permission is immaterial; the only essential thing is that permission be given in the first instance; the rule is based on the theory that the insurance contract is as much for the benefit of the public as for the insured, and that it is undesirable to permit litigation as to the details of the permission and use; this is the view followed also in Connecticut, Louisiana, Massachusetts, New Jersey, Tennessee, Wisconsin, and probably North Dakota, Oregon, Oklahoma, Florida, Indiana, and West Virginia, and is the weight of authority: 5 A. L. R. (2), pp. 622, 624, 629, ff.; Jackson for use of Schaer v. Bankers Indemnity Ins. Co. (1934), 277 Ill. App. 140, pet. for leave to appeal denied, 277 Ill. App. xvi; Karton v. New Amsterdam Casualty Co. (1935), 280 Ill. App. 201; Jefson for use of Alber v. London Guarantee and Accident Co., Ltd. (1937), 293 Ill. App. 97, pet. for leave to appeal denied, 293 Ill. App. xlvi; Landis for use of Talley v. New Amsterdam Casualty Co. (1952), 347 Ill. App. 560, pet. for leave to appeal denied, 351 Ill. App. xiv. There are, however, outside of Illinois, at least two other possible rules applicable in such a situation. One is the so-called strict or conversion rule, under which, for the use of the vehicle to be with the permission of the named insured, under the omnibus clause, the permission must have been given not only to the use in the first instance, but also to the particular use being made of the car at the time in question, — the use must be for a purpose reasonably within the scope of the permission given, during the time limits expressed, and within the geographical limits contemplated. This is a minority view, has attracted the least following, and has evidently been applied only in Maine, Michigan, and possibly New Hampshire: 5 A. L. R. (2), pp. 622, 625. The other is the so-called moderate, or minor deviation rule, under which a slight deviation from the scope of the permission granted will not exclude the user from the coverage under the omnibus clause, but a material deviation will. This has been followed in some other jurisdictions, such as Georgia, Kentucky, Ohio, Oklahoma, Pennsylvania, Texas, Washington, and probably Idaho, Minnesota, and Virginia, but is obviously very difficult of practical application: 5 A. L. R. (2), pp. 622, 625.

In Jackson for use of Schaer v. Bankers Indemnity Ins. Co., supra, in which the Supreme Court denied leave to appeal, the named insured, about 1:30 a.m., gave Jackson, the user of his car, permission to drive a guest of the named insured from his apartment on the north side of Chicago to the guest’s home in Berwyn, Jackson to return with the car in time for the named insured to go to Lake Bluff the following morning (of the then same day); Jackson took the guest to Berwyn, returned to Chicago, and at about 5 a.m. that morning was involved in an accident at 51st and Cottage Grove, on the south side of Chicago; the Court held such user was with the permission of the named insured, under the omnibus clause, Jackson was an additional insured, and the insurer was subject to garnishment on a judgment theretofore recovered against Jackson. The Court referred, among others, to Stovall v. New York Indemnity Co., 157 Tenn. 301, and, at p. 154, quoted, with approval, the following from that case:

“ ‘It is our opinion that the words “providing such use or operation is with the permission of the named assured” were intended to exclude from the protection of the policy a person who should take the automobile and use it without permission or authority in the first instance. If, however, the automobile covered by the policy is delivered to another for use with the permission of the owner or insured, his subsequent use of it is with the permission of the insured, within the meaning of the policy, regardless of whether the automobile is driven to a place or for a purpose not within the contemplation of the insured when he parted with possession.’ ”

In Karton v. New Amsterdam Casualty Co., supra, the named insured, about 12:30 a.m., gave permission to Weiss, the user, her escort of the evening, to take her car to go to his home, — 4 or 5 blocks away, — and to bring it back to her in the morning of that day; Weiss did not go to his home, but drove around Chicago, and at 5 :30 a.m., some 5 miles from the named insured’s home, was involved in an accident and was killed; the Court held such user was with the permission of the named insured, under the omnibus clause, Weiss was an additional insured, and the insurer was subject to suit on the policy by the administrator of his estate and a judgment creditor who had theretofore obtained a judgment against Weiss’ estate. The Court, with approval, referred extensively to Dickinson v. Maryland Casualty Co., 101 Conn. 369, Stovall v. New York Indemnity Co., 157 Tenn. 301, Drewek v. Milwaukee Auto Insurance Co., 207 Wis. 445, and Odden v. Union Indemnity Co., 156 Wash. 10, cited Jackson v. Bankers Co., supra, other cases from Virginia, Kentucky, and Minnesota, and quoted, with approval, the same language from Stovall v. New York Indemnity Co., supra, which had been done in Jackson v. Bankers Co., supra.

In Jefson for Use of Alber v. London Guarantee and Accident Co., Ltd., supra, in which the Supreme Court denied leave to appeal, the named insured, about 6 p.m., gave permission to Jefson, the user, her chauffeur and houseman, to take her car to get a haircut, if he could get back in a half hour; Jefson did not go to get a haircut, but instead drove various other places, he was gone several hours, and later that evening he was involved in an accident, many miles away; the Court held such user was with the permission of the named insured, Jefson was an additional insured, and the insurer was subject to garnishment on account of a judgment theretofore recovered against Jefson; the Court referred to, among others, Jackson for use of Schaer v. Bankers Indemnity Ins. Co., supra, and Karton v. New Amsterdam Casualty Co., supra, and said, pp. 101, 102:

“The facts have been presented by stipulation so apparently no controversy exists as to them. As we view this case the only question to be determined is one of law, namely, ‘What is the legal meaning of the additional assured clause as contained in the automobile insurance policy?’ ”

“The first question confronting us is: Was Jefson made another assured by the permission given by -Mrs. Jackson for him to use the automobile? We think from the facts stipulated there can be no doubt that immediately upon the permission being given, Jefson was an additional assured in accordance with section 9 of the insurance policy.”

The Court then said, pp. 103, 106, 107:

“That brings us to another question: Could a limitation be placed upon that permission by the statement of- Mrs. Jackson, that if he could get his haircut in a half hour he could take the automobile, when there is no such limitation as to permission expressed in the language used in the policy?”

“It appears to us that if the assured in an automobile policy were able to limit the meaning of the word ‘permission,’ both as to the length of time the permission be granted, as well as to where sneh automobile should be driven, and any nonobservance of such restrictions would relieve the insurance company of any liability, this would result in some absurd situations. If, for example in the instant case, at the expiration of one-half hour, Jefson was unable to have his haircut and reach home within that period of time, then somewhere enroute the permission would expire and he would become a trespasser and would be guilty of a misdemeanor under the laws of the State as driving without the consent of the owner. We are inclined to believe that such restriction and limitation could not be placed on the permission given under the terms of the policy. Permission to use an automobile is either granted or it is not granted and we do not believe the assured can limit the scope of such permission either as to time or place. We do not think the language of the policy admits of any such construction.”

In Landis for use of Talley v. New Amsterdam Casualty Co., supra, in which the Supreme Court denied leave to appeal, the named insured, under an automobile garage liability policy, gave permission to Landis, the user, his employee, to take the truck, go to the named insured’s farm, milk the cows, do some other chores, and deliver the milk to Landis’ home; Landis did so, but before returning the truck to the named insured’s garage and while it was still in Landis’ possession Landis went to some taverns on a personal trip and in the course thereof was involved in an accident; there was no omnibus clause in the policy, but it provided that it must comply with the Financial Responsibility Law of any state (similarly as does one part of the policy in the present case), and the Court said the statutory omnibus clause of ch. 95½, Ill. Rev. Stats., 1951, par. 58k, (set out above) should be read into the policy; the Court then held that Landis’ user was with permission of the named insured, he was an additional insured, and the insurer was subject to garnishment on a judgment theretofore recovered against Landis; the Court said, p. 567:

“. . . Since Landis as the driver had the initial permission of the owner, Peters, to use the truck on the day in question, all subsequent use of the truck by the driver is construed to be with the permission of the insured, within the meaning of the Statute and the policy. Landis was an additional assured under the policy issued by defendant Insurance Company. He was an additional assured within the limits of the policy and was entitled to coverage as such assured (Culver v. Webb, supra).”

We have also been referred to these Illinois cases: Zitnik v. Burik (1946), 395 Ill. 182; Soukup v. Halmel (1934), 357 Ill. 576; Cocos v. American Automobile Ins. Co. (1939), 302 Ill. App. 442, pet. for leave to appeal denied, 302 Ill. App. xiv; Groff v. New Amsterdam Casualty Co. (1943), 318 Ill. App. 586; People v. Luster (1937), 292 Ill. App. 244; Byrne for use of King v. Continental Casualty Co. (1939), 301 Ill. App. 447, pet. for leave to appeal denied, 302 Ill. App. xiv; and to this Federal case: Continental Casualty Co. v. Padgett et al. (1955), 219 F.2d 133 (C.A.4th). We have considered them all, but do not believe any of them applicable here. It would unduly extend the length of this opinion to discuss them all, and we shall refer only to Byrne for use of King v. Continental Casualty Co., supra.

In Byrne for use of King v. Continental Casualty Co., supra, the named insured told the user, her chauffeur, after returning her to her home during the day, to put the car in a public garage, where it was kept, until the next morning, and then to bring it back for her at 11 a.m. that next morning; the user did so return it to that garage, and departed, but later that evening he came back to the garage, took it out again, drove around on some personal missions, and about 8 a.m. the following morning was involved in an accident; it was held, in substance, with one Judge dissenting, that, under the circumstances, the user did not have initial permission in the first instance from the named insured; as was said in Goff v. New Amsterdam Casualty Co., supra, p. 603, “In the Byrne case we held that the chauffeur took the car without permission” ; the Court in the Byrne case did not at all depart from, but apparently recognized, the principles of Jackson for use of Schaer v. Bankers Indemnity Casualty Co., supra, Karton v. New Amsterdam Casualty Co., supra, and Jefson for use of Alber v. London Guarantee and Accident Co., supra, but thought the Byrne case on its facts was distinguishable from them; — in fact, the Court in the Byrne case referred to part of the same quotation from the Jefson case which we’ve previously set out, and referred to the same quotation from Stovall v. New York Indemnity Co., 157 Tenn. 301, as did some of those other cases and as is previously set out; we do not perceive that, under the circumstances, the Byrne case is applicable here.

“Permission” of a user by the named insured, as the language appears in the ominbus, or extended coverage, or additional insured clause of the policy here, or in the statutory omnibus clause adopted by the insurer, is not otherwise defined, or delineated in the policy. It is, here, a simple, general, unrestricted, and rather inclusive term, and there is nothing therein to indicate that it might be restricted or to indicate the circumstances under which a permission, if once given, may be, for this purpose, considered terminated. That the policy does not indicate anything as to the purpose of use of this particular truck, does not restrict its use to any particular purpose, but leaves that matter entirely open, is of some significance as to the intentions of the named insured and the insurer and has some bearing in interpreting and construing their acts in a particular case upon the question of whether the named insured gave permission to the user. The general, rather sweeping provisions of the endorsement that the liability of the insurer extends to injuries whether occurring on the route, or in the territory served by the insured, or elsewhere in Illinois, and that nothing in the policy or any violation thereof or of the endorsement by the insured shall relieve the insurer from liability, are also somewhat material as to the intentions of the named insured and the insurer and as to whether in a particular case the named insured gave permission to the user, and are somewhat indicative that there can conceivably be situations where there may be some violation of some provisions of the policy or endorsement by the insured (meaning the named insured or a user having permission of the named insured) but which will nevertheless not relieve the insurer.

The user here, Robert Lyle Jones, was a regular employee as a driver-salesman of the named insured, Q Candy and Cigar Co., a corporation. The named-insured owned the truck, paid all the operating expenses, it was assigned to Jones, the company gave him the keys, and he had to sign for it. He was not required, or evidently expected, to return the truck to the company garage or warehouse at the end of the day, or to deliver up the keys to the company. His hours of work were somewhat flexible, beginning about 7 a.m. and ending about 5 p.m., depending on what stops he made. If he took the truck to his home at -the end of the day, as he could properly and lawfully do, he was responsible for it when he checked in with the company the next morning, and he had to make a report to the company checker at its warehouse the next morning. True, he was told the truck could not be used for any purpose except business. But, that is only one of many factors, including the language of the policy, which must be considered, and that circumstance must be weighed in tbe light of all tbe- other facts and circumstances. Tbe admonition as to its use is an attempted oral restriction on tbe general, unrestricted term “permission” as used in tbe policy, and is an effort to define tbe purpose of use of tbe truck, despite tbe fact its purpose of use is not so defined or restricted by tbe policy. Sucb admonition under all tbe circumstances bere present cannot be considered a definite, clear, effective, enforceable express prohibition by tbe employer. An employer cannot, so far as tbe particular matter bere is concerned, effectively prohibit sucb personal use when be at tbe same time by bis every act places it entirely in tbe control of tbe employee so to engage in sucb personal use. Prohibition under these circumstances is but an empty word and does not jibe with tbe employer’s actual acts in vesting tbe user with every indicia of permission. Tbe fox cannot be set to watch tbe ben bouse. Sucb is not realistic. “Permission” to use this'truck was either granted or not granted to tbe user Jones. It could not practicably be granted in one breath or with one band, as it unquestionably was, and yet not granted in tbe next breath or with tbe other band, as tbe defendant urges.

Having been so granted, in what manner, when, and bow was that permission ever terminated? Tbe burden to show, affirmatively, a definite, clear, effective, enforceable termination of permission would seem to be on tbe defendant. But if, as bere, tbe truck is regularly and continuously assigned to tbe user, Jones, be is continuously in possession, be is given tbe keys, is not required or expected to and does not, in fact, turn them in to tbe company or anyone else at tbe end of tbe day,-he is not required or expected to and does not, in fact, return tbe truck to tbe company or anyone else at tbe end of tbe day, and be is continuously responsible for it at all times be has possession, we can perceive no definite, clear, effective, enforceable termination or cut-off of permission. Jones’ bringing the truck back to his own home about 5 p.m., his confusing trip downtown after supper, and his again coming back in it to his own home about 9:30 p.m., cannot be said to be an effective termination or cut-off of permission. There may well be circumstances under which, upon a return by the user or putting of the vehicle away and a surrender of possession, particularly to the employer or someone else, after the accomplishment of the certain particular purpose for which the user employee originally had it and the end of the original bailment, the user’s responsibility, possession, and permission could be considered as effectively terminated, and, if so, then a later distinct retaking or reacquiring of possesssion again by the user, particularly from the employer or someone else, and an additional, distinct, separate use thereafter, without a renewed permission of the named insured, may well be said to be without permission. Byrne for Use of King v. Continental Cas. Co., supra, was probably such a case. But such is not the case at bar.

Under these circumstances, we believe the named insured, Q Candy and Cigar Co., a corporation, had initially once given permission to Jones, the user, to use this truck, but the user deviated (if he did) from the permission granted, and the permission was never definitely, clearly, and effectively terminated. Under the initial permission rule, the user needing only to have permission to take the truck in the first instance, any use while it remained in his possession was with “permission,” under the omnibus clause, though that use may have been for a purpose not contemplated by the named insured when it parted with possession. Hence, Jones was a person using or responsible for the use of the motor vehicle with the express or implied permission of the named insured and was an insured or additional insured under the omnibus clause.

The second basic question is: what is the extent of the liability of the defendant insurer? That, of course, depends on the policy limits of liability. The policy provides that — “The limit of the company’s liability against each such coverage shall be as stated herein, subject to all the terms of this policy having reference thereto,” following which, for bodily injury liability the limits of liability are stated as “$25,000.00 each person.” Shortly below that in the policy is the legend “Form numbers of endorsements attached to policy— (B) Ill. Truck Filing A-1093 A-1235.” We cannot find those endorsements in the transcript of record, but we assume such is an inadvertent oversight of the parties, inasmuch as the stipulation was to the effect, in part, that the policy (presumably including all endorsements) be introduced in evidence and that it covered the truck here involved, and inasmuch as the defendant’s additional abstract recites that there was attached to the policy an “endorsement for motor carriers policies for bodily injury liability and property damage liability under Section 16 of the Illinois Truck Act,” which endorsement is set out in the additional abstract, and which, though bearing no numbers, we assume was the endorsement “Ill. Truck Filing A-1093 A-1235” referred to in the policy, inasmuch as the plaintiff has not questioned the sufficiency of the record or the accuracy of the additional abstract.

That endorsement states that it is attached to and forms part of the policy. It amends the policy. It provides — “the company hereby agrees to pay any final judgment recovered against the insured for bodily injury to — any person — resulting from the operation, maintenance or use of the motor vehicles described under the policy and subject to the Illinois Truck Act by reason of the design or use of such vehicles, sub ject, however, to the limits of liability set forth herein. Any person — who has secured such judgment — shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy.— The liability of the company under this endorsement on each described motor vehicle shall be a continuing one, — and on all■ such described motor vehicles shall be limited to the following amounts: $5,000.00 limit for bodily injuries to- — -one person; — .” (Emphasis added.)

The named insured, Q Candy and Cigar Co., a corporation, was evidently a “private carrier” under the Illinois Truck Act, ch. 95½, Ill. Rev. Stats., 1951, par. 240 ff, and subject to its requirements as to liability insurance policies affecting trucks: par. 253. The foregoing applicable $5,000 policy liability limit in the endorsement complied with the minimum policy limit required by that act as to trucks. ■

The rights and liabilities of the parties are governed by the contract made by them, whether evidenced by one or several written instruments: 22 I. L. P., p. 134; contracts of insurance are to be governed by the principles applicable to construction of contracts generally: 22 I. L. P., p. 177; the primary purpose of the construction of such a contract is to ascertain the intention of the parties: 22 I. L. P., p. 182; the contract should be construed as a whole, giving effect to every portion so far as possible: 22 I. L. P., p. 186, including all accompanying papers, riders, and endorsements constituting part of the contract: 22 I. L. P., p. 190; where the provisions of the policy proper and the provisions of an attached rider or endorsement are in conflict, the rider or endorsement will control: 22 I. L. P., p. 191.

The endorsement, in the light of those principles, is a part of the contract of insurance. Considering the contract as a whole, and giving effect to every portion so far as possible, tbe applicable $5,000 policy-limit of liability stated in the endorsement, so far as this truck is concerned, is clear. We do not understand it to be in conflict with or inconsistent with the applicable $25,000 policy liability limit otherwise stated in the policy in the first instance. The policy may well have covered and evidently did cover certain other vehicles which were not subject to the Illinois Truck Act and to which that endorsement would have no application and which would, therefore, be governed by the prior policy liability limit stated in the first instance. But as to those vehicles which were subject to that Act, including this truck, the endorsement was applicable. The intentions of the parties are reasonably clear. If, however, there be thought to be any conflict in this respect between the policy limits first stated and those stated in the endorsement, the rider or endorsement must control.

Accordingly, the defendant insurer’s liability here is limited by the contract to $5,000, and costs.

The matters involved here are, we believe, almost entirely questions of law, and the judgment below is, we think, contrary to the law, but to whatever extent they may be considered questions of fact we consider the judgment contrary to the manifest weight of the evidence.

The judgment is, therefore, reversed, and judgment is entered here in favor of the plaintiff-appellant William G-. Konrad, Public Administrator of the Estate of Robert Lyle Jones, deceased, for the use of Bernard Kelley, a minor, by Kathleen Benson, his Mother and Next Friend, and against the defendantappellee Hartford Accident & Indemnity Company, a corporation, in the sum of $5,000, and costs.

Reversed, and judgment entered here.

HOYE, P. J. and EOVALDI, J., concur.


author: JUDGE BURKE

text:
    Motorola-Chicago Co. v. John Sherbet d/b/a Courteous Television, Appellant.
    Gen. No. 47,079.
    First District, First Division.
    November 5, 1956.
    Released for publication December 3, 1956.
    Williams & Leonard, of Chicago, and Charles M. May, of Waukegan, for appellant; John L. Roach, of Chicago, of counsel.
    No brief filed for appellee.
   JUDGE BURKE

delivered the opinion of the court.

A default judgment was entered by the Circuit Court of Cook County for $2,910. In the judgment order there was a finding that malice was the gist of the action. By authority of a writ of capias ad satisfaciendum the defendant was seized and imprisoned in the common jail of Lake County. Subsequently a petition to quash the writ and release the defendant was filed in the Circuit Court of Cook County. He appealed from the order denying him relief. Appellee did not appear or file a brief.

The defendant maintains that the 1955 amendment to Sec. 65 of an act in regard to judgments and decrees (Par. 68, Ch. 77, Ill. Rev. Stat. 1955) requires that immediately upon arrest the defendant be taken to the court out of which the execution issued for a summary hearing of the evidence as to the facts alleged in the affidavit filed under the provisions of Sec. 62 (Par. 65) of that act [Ill. Rev. Stats. 1955, ch. 77, § 65]. Defendant argues that the General Assembly, by amendments to the act, “ended imprisonment under a malice judgment.” He says that a judgment debtor cannot be imprisoned under Sec. 5 of the act [Ill. Rev. Stats. 1955, ch. 77, § 5], since there is no limitation therein on the length of imprisonment for debt, and “we must therefore look to Section 65 for any further limitation upon a body execution.”

In the case of In re Petition of Blacklidge, 359 Ill. 482, the Supreme Court held (486) that in a tort action based on malice the writ of capias ad satisfaciendum may be obtained on a judgment without an execution being issued to require him to deliver his property. In Pappas v. Reabus, 299 Ill. App. 499, the defendant asserted that the writ was void in that it was issued without an affidavit having been previously filed. She also argued that there was no showing that she refused to deliver up her property in satisfaction of the judgment. In affirming the order overruling defendant’s motion to quash the capias ad satisfaciendum the court said (503):

“We think that under section 5 an execution against the body may issue where the judgment is based on a tort committed by the defendant, provided there is a special finding by the jury or the court that malice was the gist of the action; and secondly, an execution against the body may issue where the defendant refuses to deliver up his property whether the action is based on contract or tort. Field & Co. v. Freed, 269 Ill. 558. The effect of the 1935 amendment to section 5 was to abolish executions against the body in tort actions in which malice is not the gist of the action, and also to forbid the issuance of a body execution even in actions in which malice is the gist of the action unless there is a special finding by the jury, or by the court where the case is tried without a jury, that malice is the gist of the action.”

In the Freed case, 269 Ill. 558, the court said (563):

“In the case before us the judgment was in an action of tort in which malice was the gist of the action. The judgment was the authority for issuing an execution against the body and not a showing by affidavit, under the provisions of section 62, that the debtor had property which he unjustly refused to surrender, or that since the debt was contracted he had fraudulently conveyed, concealed or otherwise disposed of property with a design to secure the same to his own use or to defraud his creditors. The purpose of section 62 was to authorize an execution against the body upon any judgment, whether in tort or upon a contract, if the plaintiff in the judgment will file an affidavit complying with the requirements of that section. Under section 5, if the judgment is for a tort committed by the defendant, an execution against the body is authorized without regard to whether the defendant has or has not property and without regard to whether he has refused to deliver his estate up for the benefit of his creditors.”

The 1955 amendment to Section 65 of the act (Par. 68) applies to a capias ad satisfaciendum issued under Section 62 (Par. 65) of that act. Section 65 contemplates that there shall be a summary proceeding to hear evidence as to facts alleged in the affidavit filed under the provisions of Section 62. In the instant case the capias ad satisfaciendum was issued under a special finding and judgment in tort that malice is the gist of the action. In that state of the record no affidavit was required. Certain provisions of Section 65 (Par. 68) are applicable to a capias ad satisfaciendum where malice is the gist of the action and also to such a writ issued under Section 62 (Par. 65) of the act: for instance, Section 65 (Par. 68) states that no person shall be imprisoned under the provisions of the act for longer than six months. As the 1955 amendment to Section 65 (Par. 68) is not applicable to the case at bar the plaintiff was not required to file an affidavit nor was there a duty to take the defendant before the court for a summary proceeding to hear evidence as to the facts. In our opinion the trial judge decided the case correctly. Therefore, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

NIEMEYER, P. J. and FRIEND, J., concur.