author: JUDGE McCORMICK

text:
    John Barango, Appellee and Separate Appellant, v. E. L. Hedstrom Coal Co., an Illinois Corporation, Separate Appellee, Elizabeth L. Fitch, Administrator of the Deceased, d/b/a V. A. Fitch Motor Service, Appellant.
    Gen. No. 46,815.
    First District, Second Division.
    November 27, 1956.
    Released for publication January 8, 1957.

      Eckert, Peterson & Lowry, of Chicago, for appellant ; A. R. Peterson, Harold W. Huff, and Herbert C. Loth, Jr., all of Chicago, of connsel.
    James A. Dooley, of Chicago, for appellee-separate appellant.
    Erwin H. Wright and James E. Hastings, both of Chicago, for separate appellee.
   JUDGE McCORMICK

delivered the opinion of the court.

This action was brought by the plaintiff, John Barango, to recover damages for injuries sustained by him allegedly resulting from the joint and several negligence of E. L. Hedstrom Coal Co. (hereafter referred to as “Hedstrom”) and Elizabeth L. Fitch, administrator of the estate of Yernon A. Fitch, deceased, d/b/a Y. A. Fitch Motor Service (hereafter referred to as “Fitch”). The case was tried before a jury, a verdict was returned in favor of the plaintiff for $75,000 against both defendants, and judgment was entered upon the verdict. The trial court sustained the motion of defendant Hedstrom for judgment notwithstanding the verdict, and entered judgment accordingly in favor of that defendant. At the same time the court denied both Hedstrom’s and Fitch’s motions for a new trial. From the judgment entered for the plaintiff against the defendant Fitch for $75,000, the latter takes this appeal. A separate appeal was also taken by the plaintiff from the order of the court sustaining defendant Hedstrom’s motion for judgment notwithstanding the verdict and from the judgment in favor of Hedstrom entered by the trial court.

The case grew out of an accident occurring on November 30, 1949. The plaintiff Barango, a self-employed cab driver, stopped his cab on the north side of Lawrence Avenue, in Chicago, facing west, just ahead of the cab of one Seiff. He went back to Seiff’s cab to talk to him, and while he was standing at the left door of Seiff’s cab (the door towards the street), he was struck by a coal conveyor apparatus belonging to Hedstrom, which had broken away from a six-wheel coal dump truck going west on Lawrence Avenue to which it had been attached. The truck was owned by Fitch and at the time was being driven by an employee of Fitch who had been in her service for about three weeks and who had previously worked for Hedstrom as a driver. With the driver in the truck was a coal hiker employed by Hedstrom.

Hedstrom in 1949 owned its own trucks but occasionally when extra trucks were needed hired them from Fitch. The practice was that Fitch’s drivers would report in the morning to pick up a truck. Fitch usually the night before notified the driver as to what truck he was to take, where he was going, and whether he would be hauling coal, dirt, crushed stone, or something else. When the driver went to Hedstrom’s he would get a slip from someone there, which would designate how much coal was to be delivered, the address of the customer, and whether the coal was to be carried by conveyor or otherwise. The driver would not know any of these facts until he arrived at Hedstrom’s. The driver of the truck involved had driven coal trucks for two or three years and was familiar with the way hitches connecting a conveyor to the truck would operate. He had been sent to Hedstrom’s on prior occasions but had not previous to the day in question hauled a conveyor with a Fitch truck, although he had with other trucks he had driven.

The driver on the morning in question, under Fitch’s instructions, took a Fitch truck to Hedstrom’s. The driver did not know that a conveyor was to be used that day until after he had arrived at Hedstrom’s. The conveyor apparatus is a device about 10 feet long, about five feet high, weighing about 500 to 600 pounds. It is narrower than the conventional coal truck. It is mounted on two wheels and when disconnected the front rests upon the ground. The conveyor, used for unloading coal, consists of a trough, open at one end and with a closed small hopper at the other. During the unloading of the coal from the wagon, the coal falls into the hopper and is carried through the trough upon an endless rotating belt with slots, and the coal is thus conveyed to the basement or wherever it is desired to be placed. Above the wheels and standing high above the trough of the conveyor is a gasoline motor designed to operate the conveyor when unloading coal. There is a tongue on the front of the conveyor stabilized by two springs, one vertical and one horizontal, and at the tip of the tongue is a hole adapted for attachment to a hook, which is part of the hitching apparatus located at the rear of the truck, in the center. In attaching the conveyor to the truck the hole in the end of the tongue of the conveyor is inserted into the lower hook of the hitch. The top hook of the hitch is then pulled down and the hitch is closed. Above the top hook of the hitch there is a lever, or “dog,” which, after the hitch is closed, is pushed down in order to lock it. Attached to the sides of the front of the conveyor are safety chains which, when the conveyor is properly connected to a truck, are firmly attached to the truck by means of hooks placed on each side of the truck for that purpose, and trucks designed to haul conveyors are so equipped. All the trucks that were heretofore so used by the driver of the instant truck had had such hooks. The Fitch truck used on the day in question had no such hooks, but did have a chain, known as a “wheelbarrow chain,” across the entire back of the truck. This chain would be used to hold a wheelbarrow if a wheelbarrow was to be taken along for the purpose of unloading the coal. The conveyor in question was not easily attached to the truck, inasmuch as the driver had to force down the lock, or dog, on the truck hitch by hitting it. The customary and usual way to close the hitch is simply to pull it into position. The lock on the instant truck had never come open before, but the driver had complained to the manager at Fitch’s concerning the hitch on the truck.

At the time the driver connected the truck to the conveyor, one “Red,” the yard superintendent employed by Hedstrom and in immediate charge of the yard, was present. He gave the driver instructions to the effect that the coal was to be unloaded by a conveyor, and he told the driver how to fasten this particular conveyor to the truck. The safety chains were not attached to the truck but were wrapped around the tongue of the conveyor.

The defendant Hedstrom, in support of its position that the trial court ruled properly in entering judgment in its favor notwithstanding the verdict, urges that there was no evidence of independent negligence on its part. The plaintiff in his amended statement of claim alleges that the acts of negligence of Pitch and Hedstrom relied on were joint and several, and the case was tried on that theory.

In the instant case we have a unique situation. Ordinarily, if a person engaged the owner of a truck to do hauling for him, the owner alone would be responsible for the safe condition of the truck and no liability could attach to the person hiring the truck for any defects which might have caused injury to a third person. Here, however, before the truck went on the errand for which it was engaged, an additional step was taken which involved the joint action of both defendants. Hedstrom had the right to determine the method of delivery of the coal, and if the delivery was to be by means of a conveyor, Hedstrom furnished the conveyor which had to be attached to the truck and taken to the place of delivery. Pitch knew or should have known these facts. The Fitch truck was equipped with a hitch to which a conveyor could be attached. Fitch either knew or should have known of the necessity of safety chains. The truck which was sent to Hedstrom was not adapted for the attachment of such chains. There is no evidence in the record to indicate in what manner, if at all, safety chains conld be properly and safely attached to a truck lacking such hooks. Irrespective of any statutory requirement, a truck operator engaged in towing another vehicle is performing an act of potential danger to other operators and pedestrians, and persons using a dangerous, instrumentality are required to exercise care commensurate with the danger to be apprehended, in order to prevent injury to others. Staples v. Spelman, 165 Atl. 783 (Conn.). In the instant case equipment was provided on the conveyor designed for securely attaching it to the truck, and those means should have been employed. Failure to use the means was a deviation from the proper standard of safety. Fitch furnished a truck without hooks suitable for the attachment of safety chains. The truck also had an imperfect coupler, of which Fitch’s yard manager had been informed. Hedstrom furnished Fitch with a conveyor which had chains properly attached to it. At the time of the attachment of the conveyor to the truck a duty devolved on both Fitch and Hedstrom to see that the united truck and conveyor going upon the streets conformed to a reasonable standard of safety. There seems to be no dispute that if the chains had been properly attached to the truck there would have been no accident. Fitch was aware of the fact that different methods of delivering' coal could be demanded of the driver of the truck furnished by her, and that one of the methods of delivery required the conveyance-through the streets of a conveyor attached to the truck. One Biley, a witness for Hedstrom and who at the time of the occurrence was manager of the Hedstrom coal yards but was not present at the time of the attachment of the conveyor to the truck, testified that Hedstrom would look at trucks sent it from Fitch to see whether a conveyor could be coupled on to it, and would want to know whether the trucks were the type which could he coupled on to Hedstrom’s type of conveyor. He also stated that if Fitch had sent Hedstrom a driver who was unsatisfactory Hedstrom would report to Fitch telling her that it wanted someone else and would send him back. Fitch on the day in question sent Hedstrom a truck which was not suitable to safely use with the conveyor. The duty rested on Fitch through her servant, the driver, to refuse to use that truck to tow a conveyor, particularly since he knew and had complained about the unsatisfactory hitch on the truck. A duty rested upon Hedstrom through its servants to reject a truck which was not suitable for the proper attachment of a conveyor conforming to reasonable standards of safety. Instead, the agent of Hedstrom instructed Fitch’s driver to wrap the chains around the tongue of the conveyor without attaching them in any way to the truck. Hedstrom, of course, could have provided for some other method of unloading the coal which would not have involved the use of a conveyor. Both defendants violated the duty which the law imposed on them. As we have said, the plaintiff’s theory during the trial of the case was that both defendants were guilty of negligence and were jointly and severally liable. The instructions given by him and his argument to the jury so indicate, and from the evidence the jury could have properly so found.

A considerable portion of the briefs before us is devoted to a discussion of whether the driver of the Fitch truck at the time in question was a loaned servant of Hedstrom or a joint servant. In the view we take of the case such discussion is not pertinent, nor is the contention of Hedstrom that the fact the accident took place after the unloading of the coal would relieve it from liability. There was sufficient evidence in the record of Hedstrom’s negligence to take the case to the jury, and consequently the judgmeat in its favor notwithstanding the verdict was erroneous.

In its motion for new trial, which was denied by the trial court, Hedstrom in addition to its contention that it was not guilty of negligence urges that the court erred in giving certain instructions, that the plaintiff was guilty of contributory negligence, and that the verdict is excessive.

Among the instructions objected to was one given by the plaintiff, which told the jury that there was in section 130 of the Uniform Traffic Act (par. 227, chap. 95%, Ill. Rev. Stat. 1949) a provision forbidding the operation of a trailer on the highways unless it shall have adequate safety chains. The objection urged is that the conveyor was not a trailer within the statutory definition. The definition of “trailer” as used in the statute, section 4 (a) of the Uniform Traffic Act (par. 101, chap. 95%), is a vehicle “without motive power designed for carrying persons or property and for being drawn by a motor vehicle and so constructed that no part of its weight rests upon the towing vehicle.” This definition was not incorporated in the instruction. The instruction of the plaintiff merely quoted section 130 of the Act with reference to the requirement of safety chains on a trailer. It is urged by Hedstrom that the conveyor in question did not conform to the statutory definition and submission of the issue to the jury was error.

The plaintiff in his amended statement of claim, which was filed after all the evidence had been heard, included the alleged statutory violation as one of his grounds for recovery. The defendant Hedstrom filed an answer meeting it as an issue of fact, and it was so argued to the jury. Section 130 of the statute was remedial and should be liberally construed. It was a safety measure passed for the benefit and protection of all users of public highways. It was designed to afford an additional protection so that if the primary connection between the vehicles separated they would still be firmly connected to each other by means of the safety chains. In construing a statute the court must ascertain and give effect to the intention of the legislature. In Petterson v. City of Naperville, 9 Ill.2d 233, the court states that the primary object of statutory construction is to ascertain and give effect to legislative intent, and reiterates the rule laid down in People ex rel. Holvey v. Kapp, 355 Ill. 596, where the court said:

“This intent, as we held in Bowman v. Industrial Com., 289 Ill. 126, ‘is to be gathered from the necessity or reason for the enactment and the meaning of the words, enlarged or restricted according to their real intent. In seeking this intention the court will always have regard to existing circumstances, contemporaneous conditions, the object sought to be attained by the statute and the necessity or want of necessity for its adoption. It must also have in mind the language used by the legislature, the evil to be remedied and the object sought to be attained. In construing a statute the court will not be confined to its literal meaning. A thing within the intention is regarded within the statute although not within the letter. A thing within the letter is not within the statute if it is not within the intention. When the intention has thus been ascertained from the reading of the statute, words may be modified or altered so as to obviate all inconsistencies with such intention.’ ”

It could be argued that under the definition it would be a mixed question of law and fact as to whether or not the conveyor fell under the statutory definition of trailer. Section 4 (a) of the Act, defining “trailer,” merely provides that the vehicle, in order to be denominated a trailer, must have been “designed” for carrying persons or property, but there is no requirement that in order to so qualify, persons or property must be in the trailer while it is being operated. Attached to the conveyor at the time when it was being towed was a gasoline motor which was carried by the conveyor through the streets and was intended to be used to motivate the conveyor during the subsequent unloading operation. Section 4 (a) also provides as a part of the definition of a trailer that “no part of its weight rests upon the towing vehicle.” As we have said, the purpose of section 130 was a safety measure. A vehicle, the weight of which rested upon the towing vehicle, would by that very fact be so firmly attached that it would not be as likely to break loose and cause damage as one whose weight did not so rest; hence in order to insure safety to the users of the public highway safety chains were required in the latter case. There is very little evidence in the record as to whether or not any of the weight of the conveyor rested upon the truck after it was connected and was being towed through the streets. The record shows that the shaft which attached the conveyor to the truck is flexible, and that when it is attached to the truck the only thing that prevents the conveyor from going up to its maximum range is the fact that it is connected to the truck by the shaft, which would indicate that if any weight rested on the truck it was very little. The legislative intent was to provide an additional measure of safety. Considering the purpose of the statute, the conveyor substantially falls within the definition of a trailer. Applying the rule laid down in the cases cited, this section of the statute was properly applicable to this conveyor. In Sims v. Chicago Transit Authority, 7 Ill.App.2d 21, we reversed a case because the trial court erroneously submitted a nonexistent issue of carrier and passenger relationship to the jury, and we said:

131
“Generally, presumptions upon review favor judgment, and the burden is upon the appellant to point out the errors, if any, calling for its reversal. 222 East Chestnut St. Corp. v. Murphy, 325 Ill. App. 392, 399. There is a presumption that a general verdict under several counts or issues, some of which are good and some bad or unsupported by any evidence, is based on the evidence supporting the good counts or issues. Scott v. Parlin & Orendorff Co., 245 Ill. 460, 466-8, and cases there cited. See also Chicago, B. & Q. R. Co. v. Warner, 108 Ill. 538, 548-9. This presumption obtains apparently even when an instruction on the unsupported counts or issues is submitted to the jury. See Chicago City Ry. Co. v. Foster, 226 Ill. 288, 290; and cf. Schlauder v. Chicago & Southern Traction Co., 253 Ill. 154, 162.
“. . . Where the reviewing court can see the case has been fairly tried, and that the judgment is clearly right upon the facts, and that consequently another trial must necessarily result the same way, it will not reverse on the ground that an erroneous issue has been submitted to the jury. . . .”

The instant case was not a close case, and we do not believe that the injection of the question of the statute, even if it had been erroneous, was reversible error.

Defendant Hedstrom also objects to an instruction given at the request of defendant Fitch on the borrowed servant theory advanced by the latter defendant. Any party to a lawsuit is entitled to have presented to the jury the theory upon which he relies. Under the law, as we have stated, the question of borrowed or loaned servant is not an issue in the case. In any case we think that the instruction complained of substantially stated the law. An instruction, also objected to by Hedstrom, given at the request of the plaintiff, to the effect that if the jury believed that the accident was dne to the joint negligence of both defendants as charged in the complaint it might find against both defendants, was proper under the issues raised by the pleadings.

Counsel for Hedstrom also allege that the plaintiff was guilty of contributory negligence because plaintiff was standing in the street talking to the cab driver, and that therefore the finding of the jury was against the manifest weight of the evidence. Such a contention deserves little consideration. The jury could have properly found from the facts in the case that the plaintiff at the time of the occurrence was exercising due care.

The court erred in sustaining Hedstrom’s motion for judgment notwithstanding the verdict and entering judgment accordingly.

Defendant Fitch contends that she was not liable for the negligent acts of the driver of the truck on the theory of respondeat superior because the driver at the time was a special servant of Hedstrom; that the trial court erred in his rulings on the admission of evidence; and that the verdict is excessive.

The argument of Fitch with reference to her liability under the doctrine of respondeat superior has been disposed of in our discussion with reference to the contentions of the defendant Hedstrom.

Fitch complains that the trial court erred in sustaining an objection to a question asked by her of plaintiff’s witness Dr. Macaluso (plaintiff’s family doctor). The doctor had testified with reference to his examination and treatment of the plaintiff. Plaintiff had testified that x-rays were taken of him at the Eavenswood Hospital, St. Joseph’s Hospital and the Illinois Eesearch Hospital. Dr. Macaluso had testified that x-rays were taken at St. Joseph’s Hospital at or about November 30, 1949 and were examined by him; that he did not see the x-ray pictures which had been taken of the plaintiff at the Ravenswood Hospital and he did not know whether any x-ray pictures were taken of him at the Illinois Research Hospital; that on September 15,1950 x-ray pictures were taken of the plaintiff for the purpose of attempting to determine the cause of a backache of which plaintiff was then complaining ; that x-rays were taken to determine the condition of the kidneys; that on July 5, 1953 x-rays were taken of the plaintiff after he had fallen and dislocated his elbow. The witness had testified that the x-rays taken on November 30, 1949 were negative as to fractures and dislocation and disclosed no pathology; that the x-rays taken of the kidneys on September 15, 1950 indicated no abnormality; that the x-rays taken on July 5, 1953 showed no fracture but did show a dislocation. On cross-examination counsel for Fitch asked the following question: “Well, have you ever seen any x-rays with the exception of those pertaining to the dislocation of the left elbow, which indicated the existence of any abnormality in this man?” This question was objected to on the ground that the x-rays would be the best evidence. The court sustained the objection, and stated that the witness had previously answered the question. The defendant then made an offer of proof out of the presence of the jury, and the physician answered the question “no.” We think there is merit to the objection as stated by counsel for the plaintiff that the question was improper because it violated the best evidence rule, but it is not necessary to discuss or consider that contention since the ruling of the court was based on the fact, borne out by the record before us, that the question had already been answered in the negative.

Fitch also objects to the court’s ruling on a question asked of plaintiff when he had been called by Fitch as her own witness. Plaintiff, on the presentation of his ease in chief, had testified that on October 17, 1953, while driving his car in which his wife and two persons were passengers, he was in an automobile accident; that the damage to his car was about $35 or $50, although he could not recall what it was. Fitch’s counsel, when examining him, after calling him as her witness, asked the following question: “And as a result of that collision, isn’t it a fact that your wife and passengers were taken to St. Francis Hospital in Evanston?” The objection of plaintiff’s counsel to this question was sustained by the trial court. Counsel for the plaintiff stated that his objection was that the question was improper unless it tends to show that the plaintiff himself had been injured. Before us, Fitch argues that the court should have permitted the question because if it had been shown that his wife had been injured in the accident and hospitalized the jury might draw therefrom an inference that the plaintiff had also been injured, and that from such inference they might further infer that the physical condition of the plaintiff as testified to by his physician during the trial of the case resulted from the later collision. The inferences sought to be drawn by Fitch would not logically follow from the question, no matter how it had been answered.

Fitch also objects to the trial court’s permitting Hedstrom’s witness Biley to state, over objection of Fitch, that Fitch was in the “cartage business.” Subsequently in his argument to the jury Fitch’s counsel argued that Fitch was not in the business of delivering coal and stated, “Our business is general cartage, in which we use all types of equipment.” Apparently at the time of the argument Fitch’s counsel assumed that there was no question that Fitch was in the cartage business. Permitting the witness to so testify was not prejudicial.

Both Hedstrom and Fitch complain that the verdict was excessive and indicates passion and prejudice on the part of the jury.

The defendants introduced no medical testimony. From the record it appears that at the time of the occurrence, which was six years before the trial, the plaintiff was 34 years old and in good health. He participated in athletics, such as baseball, football and bowling. He was a self-employed cab driver. After the accident he was taken to St. Joseph’s Hospital in a state of semi-shock, with a swelling on his head at the junction of the spine and the skull about the size of a golf ball. He could not move the muscles in his lower extremities and had radiating pains involving the upper extremities of his body. He had a blurring of vision and a weakness in his left hand. He was unable to move his head freely. He remained in the hospital approximately three weeks, and after being discharged he had to use a cane for approximately 4% months because his legs would occasionally buckle on him. For three months he was constantly attended by a physician. Approximately 3% years after the accident he fell because of an attack of numbness of his legs, and dislocated one of his elbows, for which injury he was hospitalized two days.

At the time of the trial the movement of the plaintiff’s head was still limited. He still has dizzy spells, and whenever he puts his head on a pillow he has a sensation of floating. He has no feeling in two of the fingers of his left hand. He has shooting pains down his legs and through his left arm, and the left leg is quite numb most of the time. He has lack of control of the left hand and an inability to hold things. He has constant pain in his lower back. When he walks he shuffles, gets sudden dizzy spells and can only walk two or three blocks before he must sit down. His right arm is thicker than his left, and a snapping noise can be heard when he attempts to rotate his head. The left thigh is an inch smaller than the right, and the left calf is one-half inch smaller than the right. He has a narrowing of the cervical disc spaces, which condition is progressive. The discs will continue to narrow and the narrowing will cause pain. At the time of the trial he was still in need of and receiving medical treatment. In 1954 his physician sent him to Illinois Research Hospital, where he was put in traction and remained for 21 days. A felt collar was made for him which he wore, on his neck, for two months. He had a hospital bed at home with a traction bar on the back, which in the month before the trial he had used every day except three. After spending three or four hours in it he then is able to go to sleep. The disc condition might require surgery, but surgery would not be resorted to if the condition could be held under control by regular periods of manipulation of the neck and back by his physician. If surgery was necessary it would cost approximately $1,500. The headaches and dizziness complained of by plaintiff could be caused by a disturbance in the internal ear, and from tests taken it was evident that there was an abnormal condition in the internal ear. This condition of the internal ear could have been caused by a head injury, from a contusion of the brain tissue resulting in the formation of scar tissue, and such condition would be permanent. There was testimony that the disabilities testified to by the plaintiff might have been caused by the physical conditions found by the testifying physicians and that such physical conditions could have been caused by the accident in which the plaintiff was involved.

The out-of-pocket expenses of the plaintiff approximated $4,000. The plaintiff was unable to continue at his former occupation where, as the owner and operator of a cab, working 12 hours a day, he would make $10 to $25 a day depending on the weather. He had other jobs from time to time, and at the time of the trial was working as a licensed investigator for the State of Illinois making $300 a month pins expenses.

The amount of the judgment was high. The plaintiff’s injuries were severe. There is no precise rule by which an award of damages can be fixed in an action for personal injuries because compensation for them does not lend itself to mathematical computation. In the case before us, the question of damages involves no question of the weighing of evidence. The only question presented to us is whether the jury on the evidence before them could have returned the verdict in issue. Here the trial court denied the motion for a new trial, and the denial by the trial court of a motion to set aside a verdict claimed to be excessive is entitled to weighty consideration. The responsibility rests upon a trial court to carefully consider the evidence in the case before it, and in a proper case where the verdict is excessive, to either enter a remittitur or grant a new trial. There is nothing in the record to indicate passion or prejudice on the part of the jury. The question before us is as to whether or not the total amount of the verdict falls within the necessarily flexible limits of fair and reasonable compensation or is so large as to shock the judicial conscience. As is said in the recent article, “Damages in Accident Cases” by James, in 41 Cornell Law Quarterly, p. 582:

“What then is compensation? The primary notion is that of repairing plaintiff’s injury or of making him whole as nearly as that may be done by an award of money. The ‘remedy [should] be commensurate to the injury sustained.’ [Rockwood v. Allen, 7 Mass. 254, 256.] ‘[W]hoever does an injury to another is liable in damages to the extent of that injury.’ [Dexter v. Spear, 7 Fed. Cas. 624, No. 3867 (C.C.D.R.I. 1825)] Sometimes this can be accomplished with a fair degree of accuracy. But obviously it cannot be done in anything but a figurative and essentially speculative way for many of the consequences of personal injury. Yet it is the aim of the law to attain at least a ‘rough correspondence between the amount awarded as damages and the extent of the suffering,’ [Restatement, Torts sec. 903, comment a] or other intangible loss. . . .”

In Downs v. Baltimore & Ohio R. Co., 345 Ill. App. 118, this court sustained a judgment for $75,000 in favor of the plaintiff where the injuries were no more severe than they were in the instant case, and the court in that case said, citing Princell v. Pickwick Greyhound Lines, 262 Ill. App. 298, where a similar verdict was permitted to stand, that there was sound precedent for affirming the judgment. Here there was sufficient evidence in the record to support the jury’s verdict.

The motions of defendants Hedstrom and Pitch for a new trial were properly overruled.

The judgment of the Superior Court of Cook County entered against defendant Pitch is affirmed. The judgment entered in favor of defendant Hedstrom, notwithstanding the verdict, is reversed, and the cause remanded to the Superior Court with directions to enter judgment on the verdict in favor of plaintiff and against defendant Hedstrom.

Affirmed in part; reversed in part and cause remanded with directions.

ROBSON, P. J. and SCHWARTZ, J., concur.


source: Caselaw Access Project

author: JUDGE MoCOBMICK

license: Public Domain

text:
    Mary Mason, Administrator for Estates of Jake Mason, deceased, Phyllis Mason, deceased, Patricia Mason, deceased, Lovella Mason, deceased, Wayne Mason, deceased, Charlene Mason, deceased, and Luedna Simon, deceased, and Mary Mason, individually, Plaintiffs, LeRoy G. Charles and Adlert M. Cartman, Jr., Intervening Petitioners, Appellants, v. Spiros Papadopulos et al., Defendants, Henry Nierman, Respondent, Appellee.
    Gen. No. 46,728.
    First District, Second Division.
    November 27, 1956.
    Released for publication January 8, 1957.

      LeBoy G. Charles, and Adlert M. Cartman, Jr., both of Chicago, pro se; LeBoy G. Charles, of Chicago, of counsel.
    Eckert, Peterson & Lowry, of Chicago, for appellee; A. B. Peterson, Harold W. Huff, and Herbert C. Loth, Jr., all of Chicago, of counsel.
   JUDGE MoCOBMICK

delivered the opinion of the court.

The Circuit Court of Cook County on March 29,1955 after a hearing entered an order dismissing two intervening petitions to enforce attorneys’ liens, which also asked for judgment for attorneys’ fees against the respondent Henry Merman. Prom this order Charles and Cartman, petitioners, bring this appeal.

In the first petition it was alleged that on December 12. 1950 Sallie Perry, mother of Luedna Simon, deceased, had retained petitioners as her attorneys to represent her in a certain claim as administratrix of the estate of, and as one of the heirs and beneficiaries of, the said Luedna Simon against Henry Merman, one of the defendants and the respondent in the case before us. Under the contract set up in the petition Perry employed the petitioners as her attorneys and agreed to pay them 50% of any sum which she might recover on a trial and 33%% in case of a settlement. It was alleged that notice of the lien was served on the respondent; that subsequently one Mary Mason as administratrix of certain estates, including that of Luedna Simon, through another attorney, instituted suit; that a settlement was effected therein in the amount of $2,000 and the petitioners are entitled to recover from the respondent the sum of $1,000, for which sum they pray judgment.

The second petition sets up that Mary Mason had retained the petitioners as her attorneys in a claim for personal injuries suffered by her and to represent her as administratrix of the estates of her husband and five children, in which she was the sole beneficiary. The alleged contract with Mason had the same provisions as the contract with Perry as set out in the first petition. Petitioners alleged that notice of the lien had been served and that Mason subsequently, individually and as administratrix, commenced a suit against the respondent, which was settled for the sum of $9,000. Petitioners allege that they are entitled to the sum of $4,500 and pray judgment against the respondent.

A motion to strike the first petition and an answer to the second petition were filed by the respondent, and petitioners filed a reply.

The instant suit (in which the intervening petitions were filed) was brought through one Anderson, an attorney, by Mary Mason, who was appointed administratrix of the estates of her husband and five children and of Luedna Simon. Petitions seeking authorization to settle the suit were also filed by her through her attorney in the Probate Court, and it was stipulated that a settlement of $9,000 for the seven death claims and for the individual injuries of Mason was approved.

The answer to the intervening petitions and the reply thereto raised the issue that the contracts between the petitioners and Mason and Perry were obtained by solicitation and were therefore void.

The petitioners contend that the contracts which had been entered into by them with Sallie Perry and Mary Mason, by which Mason and Perry agreed to retain the petitioners as their attorneys on a contingent basis in all matters concerning claims against the respondent Henry Nierman which arose out of the personal injuries suffered by Mary Mason, the death of her husband and five children, and the claim which Sallie Perry had with reference to the death of her daughter, were valid and binding contracts; that proper notice had been served on the respondent in accordance with the Hlinois statute; that the petitioners were discharged without good cause by Mason and Perry, and that when the respondent settled the claim she became liable to the petitioners under the contracts.

The respondent’s theory is that the petitioners did not sustain the issues raised by the answer and the reply thereto that the contracts were fairly and properly made; that the contract with Sallie Perry should not have been recognized since Sallie Perry was not a party to the action for the alleged wrongful death of her daughter Luedna Simon, nor was she the administratrix of the estate of Luedna Simon, nor the sole beneficiary thereof, and that the petitioners could not assert a lien based on such contract against the defendant in the Circuit Court.

From the pleadings it appears that an answer was filed to the intervening petition with reference to the claim under the contract with Mary Mason and a motion to strike was filed with reference to the claim of the petitioners under the contract with Sallie Perry. On the hearing it was apparently tacitly agreed by the parties in court that the claim of Sallie Perry would be treated with tbe motion to strike standing as an answer. With reference to tbe claim made under tbe contract signed by Mary Mason, tbe respondent urges that tbe contract could not be binding upon Mary Mason in her capacity as administratrix because it was entered into before her appointment and no order of court was subsequently entered approving tbe contract. That question bas been definitely and decisively settled by tbe decisions of this court where tbe party entering into tbe contract is tbe sole beneficiary. It bas been beld that while tbe Attorney’s Lien Act may not give an attorney a lien on tbe funds beld by an administrator, since tbe administrator bas no authority to charge such funds with tbe payment of attorney’s fees, nevertheless there is a lien which is sufficient to compel tbe defendant from whom tbe fund is recovered to account to tbe attorney if bis rights are ignored after notice thereof. Abrams v. Berg’s Market and Liquor Store, 317 Ill. App. 380; Bennett v. Chicago & E. I. R. Co., 327 Ill. App. 76; Ryan v. Chicago, M. St. P. & P. R. Co., 259 Ill. App. 472. It is not necessary for an administrator to secure tbe approval of tbe Probate Court of such a contract for legal services. Bennett v. Chicago & E. I. R. Co., supra, p. 81.

Tbe case of Abrams v. Berg’s Market and Liquor Store, supra, was a suit brought for attorney’s fees under tbe attorney’s lien statute. In that case tbe allegations in tbe pleadings were that tbe plaintiff bad entered into a contract with one Evelyn Smith, tbe mother of a deceased minor, to employ plaintiff as attorney to recover damages for tbe wrongful death of tbe said minor, and that subsequently an administrator of tbe estate of tbe deceased minor bad, without tbe knowledge or consent of tbe plaintiff, made a settlement. Tbe trial court dismissed tbe statement of claim on tbe motion of tbe defendant. Tbe Appellate Court reversed tbe trial court, bolding that Evelyn Smith as sole beneficiary bad tbe right to settle tbe claim against the defendant and since snch settlement, if made, would have been a bar to any suit brought by the administrator of the estate, she also had the right to hire an attorney to represent her in the matter of her claim against the defendant; and the fact that Evelyn Smith had not been appointed administrator, but that a trust company had been, is immaterial. The court cites Mattoon Gas Light & Coke Co. v. Dolan, 105 Ill. App. 1, 4; Voorhees v. Chicago & Alton R. Co., 208 Ill. App. 86, 93; Ryan v. Chicago, M. St. P. & P. R. Co., 259 Ill. App. 472; Washington v. Louisville & N. Ry. Co., 136 Ill. 49, 56; Henchey v. City of Chicago, 41 Ill. 136. The instant contract was a valid and enforceable contract with Mary Mason, both in her capacity as administratrix and as an individual and would support an action under the Attorney’s Lien Act.

Sallie Perry was the mother of Luedna Simon and Mary Mason. The statute of distribution (par. 162, ch. 3, Ill. Rev. Stat.) pertaining to the administration of estates provides that where the deceased leaves no surviving spouse or descendant but has surviving parents, brothers and sisters etc., the entire estate shall descend to the parents, brothers and sisters of the decedent in equal parts, allowing to the surviving parent, if one is dead, a double portion. Sallie Perry was not the sole beneficiary of Luedna Simon since Mary Mason was a surviving sister of Luedna Simon. Sallie Perry was not appointed administratrix of the estate. Under the law as set forth in the preceding cases she could only make a contract with the petitioners which would bind her individually with reference to her claim as one of the beneficiaries of the estate of Luedna Simon, and such contract would not bind an administratrix subsequently appointed in the estate. The petition with reference to the claim based on the contract with Sallie Perry was properly dismissed.

The only question then left before us to determine is whether or not the respondent has sustained the burden of proving that the contract with Mason was void because it was obtained through the unlawful and unethical solicitation of the petitioners.

It is the rule that where the question of solicitation is raised in order to defeat an attorney’s lien, the burden of proof rests upon the party attempting to show that the lien is void by reason of solicitation. Ryan v. Pennsylvania R. Co., 268 Ill. App. 364, 379. The uncontradicted testimony in the record is that on the morning of the fire in which the decedents were killed, Cartman, who had been admitted to the bar in 1950, was approached by one Curry, a man whom he had known for some months and whom he believed to be the husband of Luedna Simon, daughter of Sallie Perry and sister of Mary Mason. At Curry’s request Cartman went to the police station to discuss with Mrs. Mason his employment as her attorney to protect her interests. He was introduced to her by either Douglas, the undertaker, or Curry. She told him that she did not want to talk about the matter then, and he told her that if she wanted to see him to have Douglas or Curry get in touch with him. Cartman’s uncontradicted testimony was that Douglas later asked him to see Mrs. Mason and that he did see her that evening at about 5:30 or 6:00. He asked her to sign a contract engaging him as attorney. A minister who was there told Cart-man not to bother her because she was in no condition to sign papers and told Mrs. Mason that he would check on Cartman and if he found Cartman was alright he would let her know. She did not remember if the minister subsequently contacted her. Again on the same evening, when called by Douglas, Cartman with Charles, the other petitioner, again went to the house where Mrs. Mason was, and at that time at about 7:30 or 8:00 in the evening they discussed the matter at length, and she signed an agreement appointing Cart-man as her agent and attorney to act for her. Subsequently on December 11th she signed the contract on which the second petition was based. On December 12th Sallie Perry affixed her mark to the contract upon which the first petition was based. Subsequently an attorney Anderson was brought into the case by a certain Brown who, according to the testimony of Mrs. Mason in the hearing in the trial court, solicited her to employ Anderson as her lawyer. At the instigation of Anderson she signed an affidavit at the hearing before the Chicago Bar Association on the complaint made by the petitioners against Anderson, which affidavit stated that she had asked Brown to recommend a lawyer to her. On the instant hearing she denied that she had made such a statement and stated that such statement was not true. The Chicago Bar Association apparently exonerated Anderson, and the question as to whether or not he had solicited the case has nothing to do with the issues before us. There was no question raised as to the legal competency of the petitioners and apparently if it had not been for the interjection of Anderson into the case they would have continued as attorneys for Mason and Perry.

In support of his contention that the petitioners solicited employment as attorneys, counsel for respondent have cited a number of cases, relying principally upon the case of Brinks, Inc. v. Gravesen, 309 Ill. App. 571. In that ease, however, the first contact with the family of the injured minor was through a Mrs. Fox, who was found by the trial court to have been acting for the attorney at the time she first appeared at the hospital and asked the parents to employ him. In the instant case the first contact with the parties involved was through a person who, at least as far as the attorney was concerned, was considered to have been a member of the family. In Morris v. Pennsylvania R. Co., 10 Ill.App.2d 24 (leave to appeal denied, 11 Ill.App.2d i), this Division handed down an opinion dealing with the right of an attorney to enforce an attorney’s lien for fees against the Pennsylvania Railroad Company, which had made a settlement of the case disregarding the alleged rights of Morris under the lien on the ground that his contract of retainer had been obtained by solicitation. We there held that an attorney’s contract of retainer, if obtained through solicitation, was void and unenforceable, and cited the applicable cases. We also held that the undisputed testimony disclosed a clear pattern of persistent solicitation by one Forbes to obtain the claim of the injured party for the petitioner and that Forbes from the unrebutted testimony was the agent of Morris. On the ground that the judgment of the trial court was against the manifest weight of the evidence we reversed and remanded the cause. On motion of the petitioner later in accord with section 75 of the Practice Act [Ill. Rev. Stats. 1955, ch. 110, § 75] we struck the order of remandment, and subsequently his petition for leave to appeal to the Supreme Court was denied. The instant case does not present the same factual situation in that there was nothing in the evidence to indicate that John Curry, who had asked petitioner Cartman to see Mrs. Mason, was an agent of the intervening petitioners. From the uncontradicted evidence it appears that subsequent contacts of the petitioners were made pursuant to calls from the undertaker in accordance with the instructions given by petitioner Cartman to Mrs. Mason at the time when he first saw her.

An attorney should be exceptionally scrupulous in making contact with new clients. However, an attorney has the right to get in touch with a person who has a legal right at stake if, through communications received from persons whom he believes to be either a member of the family or a friend, he in good faith is led into the belief that the prospective client desires to see him. In re Mitgang, 385 Ill. 311. Over-eagerness of an attorney to get a case brings the legal profession into bad repute. Still, unless there is actual solicitation the contract is not rendered void. In the case before us solicitation was not proved.

The respondent also urges that the contract was an unconscionable one inasmuch as it provided for a payment of 50% of any recovery if it was through trial and 33Ys % if it was through settlement. This case arose out of a fire in which the husband and five children of Mrs. Mason were killed, together with Luedna Simon, her sister. An attorney’s lien is purely a creature of statute (Ill. Rev. Stat. chap. 13, par. 14), and the Act must be strictly construed. Haj v. American Bottle Co., 261 Ill. 362. The question of fees under an attorney’s lien has previously been before this court many times. In Noonan v. Chicago Motor Coach Co., 324 Ill. App. 519, where a client had successively employed three attorneys on contingent fee contracts calling respectively for one-third, one-half and one-third of the total recovery, and discharged the first two attorneys, and while the second attorney was representing the client the first attorney had agreed in writing to accept one-sixth of the total amount collected, and the third attorney secured a judgment for the client for $7,500, it was held that an order awarding the first attorney $687.50 for his services without an attorney’s lien, awarding the second attorney a lien for $850, and awarding the third attorney a lien for $2,500 and directing the court to pay over such amounts to the several attorneys and balance to the client was proper. In Reinholdt v. Mobrich, 1 Ill.App.2d 223, it was held that where the attorney who represented an estate in a wrongful death action under a valid contract whereby he would receive one-third of the amount recovered was replaced before the action was settled, and where he perfected a lien for his compensation, a judgment against the defendant for one-half of the amount called for by the lien was proper. In Gorton v. Norris, 319 Ill. App. 525, a woman eighty years old, who had been severely injured, entered into contracts with three attorneys to prosecute her case and agreed to pay each of them one-third of any amount recovered by suit and one-fourth of any amount recovered without suit. Suits were filed by two of the attorneys, which suits were consolidated, and the claim was later settled for $3,600. Two attorneys filed separate petitions to establish their respective liens. Mrs. Gorton asked to have the liens adjudicated, and admitted the employment of the third attorney and the validity of his lien. The court found that one attorney should be awarded $200, another $800, and the third $200. The appeal was taken by the executrix of the estate of an attorney who had been awarded $200 by the trial court, and she urged that the power of attorney signed by Mrs. Gorton is controlling and that as a matter of law the court had no right to award fees other than that provided in the writing. The court said:

“The executrix takes the position (citing cases) that the power of attorney signed by Mrs. Gorton is controlling, and that, as a matter of law, the court had no right to award fees on any basis other than that provided in the writing. Barnes v. Barnes, 225 Ill. App. 68; Caruso v. Pelling, 271 Ill. App. 318; Goldberg v. Perlmutter, 308 Ill. App. 84. She contends that the client could not deprive the attorney of his lien by discharging him. Tulka v. Chicago City Ry. Co., 259 Ill. App. 234. These cases so hold under circumstances appearing in each. . . .
“We do not care to rest our decision on any merely technical ground. The executrix is the only party complaining. She asks judgment for one-third of the entire amount obtained in settlement. If each lien claimant was made a like allowance, there would be nothing at all left for Mrs. Gorton. The lawyers would take it all. . . . The statute contravenes the common law. It is to be strictly construed. Berkemeier v. Dormuralt Motor Sales, 263 Ill. App. 211, 218. The proceeding is purely statutory. It is, strictly speaking, neither at law nor in equity. . . .
“If we were to hold the executrix entitled to one-third of the whole amount recovered to the exclusion of other lawyers, the result would be unjust. We hold the trial court attained substantial justice.”

Here a suit was filed and it was stipulated that the Probate Court had approved a settlement of $9,000 for all the claims. Under the terms of the contract between Mrs. Mason and the petitioners she agreed to pay them 50% of any sum which she might recover on trial in court and 33%% of any sum which she should “receive in settlement.” There was no trial in court, so the first portion of the contract is inapplicable, and on oral argument before us the petitioners abandoned their claim for 50%. There is no evidence in the record as to whether or not Mrs. Mason or her attorney Anderson has received any money from the settlement. On oral argument the petitioners stated none of the money had been paid to Mrs. Mason. A condition precedent to their enforcement of the contract would be proof of her receipt of money in settlement and the amount thereof. Berkos v. Aetna Life Ins. Co., 279 Ill. App. 243. Under the particular circumstances in the case before us we feel that the trial court, after a hearing, should determine the amount which was actually received by Mrs. Mason, if any, and also determine the attorneys’ fees to which the petitioners are justly entitled and enter a judgment against respondent accordingly.

The order of the Circuit Court insofar as it dismisses the petition based on the contract with Sallie Perry is affirmed, but it is reversed as to the dismissal of the petition based on the contract between petitioners and Mary Mason, and the cause is remanded for further proceedings in accordance with this opinion.

152

The respondent filed an additional abstract in this court, which was necessary for us to use in our determination of the issues involved. Costs, including the additional abstract, are taxed one-half against the appellee and one-half against the appellants.

Affirmed in part; reversed in part and remanded.

ROBSON, P. J. and SCHWARTZ, J., concur.


text:
    Robert A. Pohlman, Appellant, v. Universal Mutual Casualty Co., Appellee.
    Gen. No. 46,844.
    First District, Second Division.
    November 27, 1956.
    Released for publication January 8, 1957.

      Seymour J. Kurtz, of Chicago, for appellant; John C. Richards, of counsel.
    Irvin Tischer, John Narusis, Jr., of Chicago, for appellee.
   JUDGE McCORMICK

delivered the opinion of the court.

This is an action brought by the plaintiff against the defendant, an insurance company, to recover for personal injuries allegedly received by the plaintiff through the negligence of one Langford, whose vehicle collided with the car of plaintiff in the state of Indiana. Langford had rented a trailer from Arnold Rasmussen, Don Rasmussen and Anton Rasmussen, doing business as Standard Trailer Service, which trailer was covered by a policy of insurance issued by the defendant under and in accord with the Illinois statutes. The defendant made a motion to strike the complaint filed by the plaintiff. The plaintiff was allowed to file an amended complaint instanter. The defendant stood on his motion to strike as the same applied to the amended complaint at law, which motion was sustained, the amended complaint was stricken and the cause was ordered to be dismissed. The plaintiff appealed from this order.

The only question before this court is as to whether the court acted properly in dismissing- the complaint and cause of action against the defendant.

The complaint, in one count, alleges two causes of action, one in tort and one in contract. The tort action alleges that the negligence of Langford was the proximate cause of the injuries of plaintiff and the damages resulting therefrom. The contract action is based on the contract of insurance. The plaintiff seeks but one recovery, and that against the defendant insurance company. The liability for recovery against the tortfeasor is predicated upon his wrongdoing. The liability against the insurance company is predicated upon its contractual obligation. No question of joinder is here involved. The only question is as to whether or not the plaintiff can bring this action against the defendant insurance company before there is any determination of the liability of the alleged tortfeasor, the insured.

To support his cause of action in contract the plaintiff sets out the fact that Langford had rented a trailer on April 28, 1953 from Standard Trailer Service, which was in the business of renting trailers to the general public; that under the statute the Standard Trailer Service was obligated to have either a motor vehicle liability policy or a motor vehicle liability bond; that at the time in question there was in full force between Standard Trailer Service and the defendant such an insurance policy. The policy was not attached to the complaint. The statute upon which the plaintiff relies is paragraph 63 — 1 of chapter 95y% of Illinois Revised Statutes, 1951, which provides:

“It is unlawful for the owner of any motor vehicle to engage in the business, or to hold himself out to the public generally as being engaged in the business of renting out such motor vehicle, to be operated by the customer, unless the owner has given, and there is in full force and effect and on file with the Secretary of State either
“(1) A motor vehicle liability policy in a solvent and responsible company, authorized to do business in the State of Illinois, providing that the insurance carrier will pay any judgment within thirty days after it becomes final, recovered against the customer or against any person operating the motor vehicle with the customer’s express or implied consent . . . for an injury to, or for the death of any person . . . .”

Since the policy is not before us and the complaint alleges that the policy was in compliance with the statute, we must assume that the language in the statute was the language of the policy. No suit had been brought against Langford (the insured) and no judgment was entered against him. The terms of the policy would make the recovery of a judgment a condition precedent to an action against the insurance company. There is nothing in the statute which provides that the insurance company shall compensate the injured party.

In the complaint the plaintiff also sets out certain portions of the Financial Responsibility Law of Illinois, paragraph 58 (k) (sec. 42 — 11) of chapter 95%, ILL Rev. Stat. 1951. All provisions of the Financial Responsibility Law must be disregarded, because it was held in McCann for Use of Osterman v. Continental Cas. Co., 8 Ill.2d 476 (affirming a decision of this court in McCann for Use of Osterman v. Continental Cas. Co., 6 Ill.App.2d 527), that the Illinois Financial Responsibility Law specifically limits the provisions of section 42 — 11 (par. 58 (k)) to liability policies issued under the provisions of that Act, and that the provisions of the Act are not applicable unless the insured has by his previous conduct brought himself within its purview. There is nothing in the pleadings before us to indicate that such was the fact here.

The plaintiff relies upon the case of Illinois Casualty Co. v. Krol, 324 Ill. App. 478, where the plaintiff insurance company had issued its policy under a compulsory statutory provision. A party was injured through the negligence of a minor driver operating one of the insured defendant’s trucks without a chauffeur’s license. The insurance company formally disclaimed liability to the insured under the policy on the ground that the provisions of the policy excluded coverage while the truck was being operated, as it was, by a person in violation of the law applicable to age or occupation of the driver. The insurance company, believing it was for the best interest of all parties to settle the claim, received an offer which it transmitted to the insured advising him that unless he settled it within a certain time limit, the company would make the settlement and seek reimbursement from him for any sums paid out by it. In this suit the insurance company sought to recover from the insured the amount paid to the injured party under the settlement agreement. The plaintiff insurance company, in order to sustain its cause of action, insisted that because of the provisions of the policy excluding coverage there was no liability on the part of the insurance company, since the action of the insured in permitting the minor to operate the truck at the time of the accident in violation of the law was a breach of the provisions of the contract of insurance. The court said:

“We think it is a fair construction of the statute to hold that one of the compelling reasons for enacting the Illinois Truck Act was the necessity of more stringent regulations for the protection of the general public in the use of highways; that one of the methods of effecting this purpose, as adopted by the legislature, is to require the operator of trucks to carry a policy of insurance indemnifying him from his liability, as provided in section 16 of the act; that, as urged by plaintiff, such insurance is for the protection of the public, and therefore policy defenses which may be good as against the insured, do-not relieve the insurance carrier of its liability to parties injured in their persons or property by reason of the insured’s unlawful operation of its trucks.”

The court held that under the provisions of the policy the plaintiff was obliged, even in case there was a violation of the contract of insurance by the defendant, to defend or settle the claim of the injured person and to pay any judgment that might be entered against the defendant. The policy also provided that the insured should reimburse the company for any payment made by it on account of any accident, claim or suit which the company would not have been obligated to make under the provisions of the policy. The court held that an ultimate liability rested on the insurance company; that it had the right to make a settlement; that the settlement was fair and made in good faith; that, while by the terms of the policy the insurance company was not divested of its right to make such settlement nor relieved from its ultimate liability to the insured, nevertheless, because of the breach of policy provisions, the insurance company could recover back from the insured the money which it had paid out. This case in no way indicates that either the policy or the statute established a primary liability between the carrier and the injured party. Nor does it support the contention that a suit in the first instance, such as was attempted here, could be brought against the insurance carrier. The case is not applicable to the facts and circumstances in the case before us.

The out of State cases cited by the plaintiff dealing with joinder of an insurance company with the insured are not in point because the statutes in those States differ materially from the Illinois statute. One of the cases cited and relied upon by the plaintiff is Enders v. Longmire, 179 Okla. 633, 67 P.2d 12, which was a joint action brought against the insured and an insurance company which had by virtue and under the fiat of an applicable statute issued an insurance bond. However, in that case the statute provided that the liability insurance policy or bond “shall bind the obligors thereunder to make compensation for injuries to persons and loss of or damage to property resulting from the operation of such motor carrier.” (Italics ours.) The court in Temple v. Dugger, 164 Okla. 84, 21 P.2d 482, and in Jacobsen v. Howard, 164 Okla. 88, 23 P.2d 185, had construed the statute and had held that under it a joinder of the insured and the insurance company in an original suit was proper, inasmuch as the provisions of the statute binding the insurance company to make compensation for injuries to persons and for loss of or damage to property created a primary right of action in favor of the party injured. Subsequently the legislature amended the Act, providing “. . . and after judgment against the carrier for any such damage, the injured party may maintain an action upon such policy or bond to recover the same and shall be a proper party so to do.” The court held that since the amendment did not change the portk i of the statute upon which the court in the two previous cases had relied as making the insurance company primarily liable to the injured party, it must be assumed that it was not the intent of the legislature to prevent an original joint action against both the carrier and its surety. The decision in that case would have no influence on the case before us.

It is a fundamental rule of law that where the terms of an insurance policy are clear and unambiguous and are not in violation of any applicable statute the court must give effect to the intent of the parties to the contract in accordance with the clear expression of the agreement. Paragraph 1000 of chapter 73, Ill. Rev. Stat. 1951, provides that all policies insuring against loss or damage for which the insured is liable to persons other than the insured shall contain a provision that the insolvency or bankruptcy of the insured shall not release the company from the payment of damages occasioned during the term of the policy, and further provides that in ease execution against the insured is returned unsatisfied in an action brought by the injured person, then an action may be maintained by him against the insurance company under the terms of the policy. This section presupposes that a judgment will be recovered against the insured and permits a direct action to be brought against the insurance company in case the execution on the said judgment has been returned unsatisfied, and eliminates from the consideration of the court any defense which might have been urged by the insurance company to the effect that the insured was either insolvent or bankrupt. It does not give the injured party the right to bring a primary action against the insurance company before the liability has been established in a suit brought by him against the insured.

Here, under the assumption that the insurance pAicy followed the terms of the statute, it provided that the insurance carrier will pay, within thirty days after it has become final, any judgment, for an injury to or for the death of any person, recovered against the insured or any other person operating the motor vehicle with his express or implied consent. As we have pointed out, no such judgment had been recovered against the insured, and this suit was brought in the first instance against the insurance company. The complaint did not state a cause of action against the defendant.

The judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

ROBSON, P. J. and SCHWARTZ, J., concur.


author: JUDG-E SCHWAETZ

text:
    Emily Hoiden, Appellee, v. Joseph Kohout and Mary Kohout, his wife, Appellants. John O. Sykora, Trustee, Defendant.
    Gen. No. 46,852.
    First District, Second Division.
    November 27, 1956.
    Released for publication January 8, 1957.

      Theodore P. Nebel, and Owens, Owens & Einn, all of Chicago, for appellants.
    G-orski, Hassell, Daly & Sinden, for appellee.
   JUDG-E SCHWAETZ

delivered the opinion of the court.

This is an appeal from a decree foreclosing a trust deed securing a note for $5000 made by Joseph and Mary Kohout (defendants-appellants, herein called defendants). Their defense is that all interest and principal had been paid to John O. Sykora as the authorized agent of plaintiff to receive payment, although the notes were not surrendered to them. They filed a counterclaim seeking to have the notes can-celled. The issue in this cause is the scope of the agent’s authority.

John O. Sykora was named trustee, and both principal and interest were payable at his office or at such other place as the holder of the notes might from time to time in writing appoint. Provision was also made for prepayment on the principal sum upon giving the owner of the notes or the trustee thirty days written notice. The cause was referred to a master who heard the evidence, found that the payments were not made to Sykora as plaintiff’s agent and recommended a foreclosure decree and dismissal of the counterclaim. The chancellor overruled exceptions to the master’s report and entered a decree as recommended.

The case turns on the legal effect of the uncontroverted testimony describing the character of Sykora’s agency for plaintiff. It appears that over a period of fifteen years plaintiff purchased ten to fifteen mortgages through Sykora. She had no personal contact with the borrowers. Sykora would collect payments without having notes in his possession and would write plaintiff or advise her orally that payments had been made, whereupon she would send him the notes. Sykora would keep the payments he received and would give plaintiff his personal checks for whatever had been paid. This was true both as to principal and interest payments. From time to time plaintiff permitted funds to remain with Sykora for the purpose of purchasing other mortgages. Plaintiff estimates that she had a revolving fund with him of between $15,000 and $20,000. In February 1947 when she had a credit of approximately $2500 in the account, she gave Sykora a check for $2486 to be added to her balance and in May 1947 the money was used to purchase the Kohout mortgage. Plaintiff received the trust deed and notes in June 1947.

Defendants first met Sykora in May 1947 when they sought a loan for the purpose of buying a house. There was no contact between plaintiff and defendants until after August 1952 and no written communication between them until November 1952. From 1947 to 1952, defendants made their payments of interest and principal to Sykora and took his receipts therefor. When they made payments of interest, Sykora’s secretary informed them that she did not have the coupons and that when they came in from the holder, Sykora would send them to defendants. By July 1952 they had paid $3000 on account of principal and on July 7, 1952, they made a final payment on principal of $2000. Shortly after this Sykora absconded. Defendants did not ask for the production of either interest coupons or the principal note upon which payment was being-made nor did they inquire whether Sykora owned the notes or had them in his possession. Sykora did not advise plaintiff of the prepayments of principal nor did he transmit any portion thereof to her.

The practice of holders of hearer notes remaining unknown to borrowers is by no means uncommon in this community. It means, however, that the note holder must create an agency. In this case, as in many others, the mortgage dealer and trustee was the agent. The inevitable conclusion from the uncontroverted testimony is that plaintiff knew and approved of Sykora’s receiving payments of principal and interest from borrowers and depositing them to his own account or keeping the money and accounting to her later. She also knew that prepayments on principal were being made by borrowers without production of principal notes. This she had known for years. She not only acquiesced but cooperated in the arrangement. She never sent notes to Sykora in anticipation of payment but would only deliver them to him when he advised her that payment had been made. Apparently this was not due to any caution on her part with respect to Sykora because, as we have said, she would often leave funds with him pending the purchase of other mortgages which he might obtain for her. It was her mode of doing business with him. Her own testimony is that times were good and people were paying off loans so fast it was an annoyance to her. That was her reason for leaving money with Sykora pending his ability to get other mortgages.

It is argued that defendants by their conduct permitted Sykora to commit the embezzlement. Payment to a duly authorized agent is payment to the principal. In such a case any argument with respect to defendants’ exercise of care or failure to inquire is irrelevant. The same thing may be said of the argument that defendants cannot rely upon plaintiff’s course of dealing with others through Sykora, as they knew nothing about it. The evidence of other dealings was proof of plaintiff’s acquiescence and affirmative cooperation in Sykora’s method of collecting interest and principal payments on her behalf. It is of no consequence that defendants did not know the course of dealing by which Sykora thus became empowered as plaintiff’s agent. Their own course of dealing followed the same pattern as that of others. This is to be distinguished from a case of persons dealing with one who is not an agent but assumes to be such or, being an agent, exceeds his authority. In such a case the facts creating an estoppel should be known to the persons dealing with the agent. In the instant case the agency was proved. The defendants’ obligation was discharged when they paid Sykora the money they owed plaintiff.

This conclusion is fortified by the fact that where the owner of a bearer note secured by a trust deed conceals his identity, the trustee appointed for the purpose of securing performance of the provisions of the trust deed starts with an authority from the owner which, while limited in the first instance to seeing that the covenants of the trust deed are performed, is easily expanded to a personal authority to receive payment on behalf of the owner of the notes. The trust deed in itself made this easy by providing that payments should be made at Sykora’s office. Perhaps such an arrangement in its primitive sense meant that at the appointed time and place the maker of a note would meet the holder of the note and there make his payment. It does not mean that today when a great many loans provide for payments on .installments or prepayments at a time and place fixed in the instrument. In such cases the debtor frequently does not see his note until after the final payment.

Three cases are cited which adequately support our conclusion. Noble v. Nugent, 89 Ill. 522; Linowiecki v. Wisniewski, 249 Ill. App. 474; and Corn Belt Building & Loan Assn. v. Grabe, 295 Ill. App. 135. In the Noble case the vital facts are similar to those in the case at bar. The borrower dealt with the mortgage broker, also named as trustee, and never met the note holder or knew his name. She made payments from time to time, taking the broker’s receipts, and when she made final payment she asked for the note but was told the broker was busy. The mortgage broker, as trustee, gave her a release of the trust deed. It appeared that the broker had acted for the lender for more than ten years and had authority to collect moneys owing the lender. The court said the fact that the notes were not surrendered when paid could not avail as aganist clear proof that they were paid to a person having authority to receive payment, citing Anderson v. Coonley, 21 Wendell 279; United States Life Insurance Co. v. Advance Co., 80 Ill. 549; Harris v. Simmerman, 81 Ill. 413. The court makes the further observation that the authority of an agent may be shown by the usual acts of such agent in the principal’s business or by the principal’s permitting and acquiescing in such acts when known to him, as well as by express authority and direction, quoting from Doan v. Duncan, 17 Ill. 272, at 275:

“The policy and reason of the rule is for the protection of the innocent, who deal upon the faith of such authority as the principal holds out or permits as being authorized and sanctioned by him. If an innocent party is to suffer, it shall fall upon him who enables the supposed agent, under his authority, to impose on others.”

The principle is stated in this way in Restatement of the Law, Agency, ch. 3, sec. 43(2):

“Acquiescence by the principal in a series of acts by the agent indicates authorization to perform similar acts in the future.”

To the same effect are the other cases cited. In Linowiecki v. Wisniewski, supra, this pertinent language appears:

“Moreover, the plaintiff by his course of conduct, had agreed to the payment of the notes, without their production, at the office of Weber & Weber by the defendants, as it appears from his own testimony that he would not deliver the notes until he had first received the money and, for that reason apparently, would not deposit them with that firm.”

In Corn Belt Building & Loan Assn. v. Grabe, supra, the court said, p. 140:

“From a careful consideration of all the evidence in the record we find it to clearly appear from the manifest weight of the evidence and the law applicable thereto that James O’Mara & Son, Lawrence O’Mara, were at the time of the execution of the Grabe mortgage, purchased by Collins, acting as the general agents for Collins in making, collecting and releasing mortgage loans generally for him, and that for a long period of years had been so collecting interest, receiving the principal of loans, and releasing mortgages for Collins, and that in making the Grabe loan, collecting interest, receiving payments thereof, and in releasing the mortgage, were so acting as the agents of Collins, the undisclosed principal upon whom such acts were binding. Consequently Collins, through his course of conduct, is now estopped from questioning such agency. Voelkner v. Ott, 197 Ill. App. 520; Linowiecki v. Wisniewski, 249 Ill. App. 474.”

Plaintiff makes the point that the inference of authority to receive payment arises from possession of a trust deed and notes by the person to whom payment is made and does not exist without such possession. She cites Kennell v. Herbert, 342 Ill. 464. In that ease the court said that a trustee as such is limited by the provisions of the trust deed which indicate clearly that he holds it for the use of another, and where a trust deed and note is owned by a third party, the trustee has no implied authority to receive payment of the note, and if payment is made to him and he executes a release, the release has no effect upon the rights of the owner and holder of the trust deed to foreclose. The trust deed contained no provision for prepayment and the facts involved an isolated transaction which did not disclose any course of dealings between the holder of the note and the trustee’s office. So far as appears, there was no dealing between the holder of the note and the trustee, so that whatever payment was made to the trustee was not made on the basis of his being an agent of the note holder, as in the instant case, but in his capacity as trustee.

In Bergstrom v. Colleran, 360 Ill. 377, cited by plaintiff, the note had been negotiated before maturity in a bona fide transaction and the mortgagors continued to deal with the original holder of the note after he had negotiated the same. No question of agency was involved.

In Fortune v. Stockton, 182 Ill. 454, cited by plaintiff, a mortgagor desiring to make payment before maturity dealt with the attorney for the holder of the notes. The mortgagor’s lawyer questioned the attorney’s authority and finally accepting his assurance, made payment to him. It developed that he had no such authority. The court there was dealing with notes made payable to specific payees without provision for prepayment prior to maturity. Other facts in that case clearly distinguish it from the instant case.

Plaintiff makes the point that no notice was given with respect to the making of prepayments as required by the trust deed. Under the trust deed thirty days notice was required to be given to either the holder of the note or the trustee with respect to making prepayments. It is contended that this notice was not given to plaintiff. However, payment was made to the trustee. By plaintiff’s own testimony, payments by borrowers were frequently made to Sykora in advance and were accepted by her. The trustee had the right to and did waive notice by accepting the prepayments.

In our opinion the uncontroverted evidence has established the fact of Sykora’s agency for plaintiff. The complaint to foreclose is without equity, and the prayer of the counterclaim should be allowed.

The decree is reversed and the cause is remanded with directions to enter an appropriate order in accordance with the views herein expressed.

Decree reversed and cause remanded with directions.

BOBSON, P. J. and McCOBMICK, J., concur.


author: JUDGE SCHWABTZ

text:
    Michael Pliakos, Plaintiff-Appellee, v. Illinois Liquor Control Commission, and Loren B. Sackett, Chairman, W. Willard Wirtz, Commissioner, Howard S. Cartwright, Commissioner, and Joseph H. Schiffman, Secretary of Illinois Liquor Control Commission, Defendants-Appellants.
    Gen. No. 46,919.
    First District, Second Division.
    November 27, 1956.
    Rehearing denied December 11, 1956.
    Released for publication January 8, 1957.

      Latham Castle, Attorney General of State of Illinois, for defendants-appellants; William C. Wines, Baymond S. Sarnow, A. Zola Groves, and Edward M. White, Assistant Attorneys General, all of Chicago, of counsel.
    Halfpenny & Hahn, and Edwin S. D. Butterfield, both of Chicago, for appellee; James F. Flanagan, and Bichard F. Hahn, both of Chicago, of counsel.
   JUDGE SCHWABTZ

delivered the opinion of the court.

This is an appeal from an order of the Circuit court of Cook county reversing an order of the Hlinois Liquor Commission, herein called the State Commission. Plaintiff, a retail liquor dealer, obtained a local liquor license and then made application and obtained a license from the State Commission, both licenses being required for the retail sale of liquor. While these licenses were in effect the State Commission instituted a proceeding, heard evidence and entered an order revoking his state license. He thereupon filed a complaint in the Circuit court pursuant to the Administrative Beview Act seeking to review the decision of the State Commission. In that complaint he alleged that as a matter of law the State Commission has no power to initiate a proceeding for revocation of a state license but is limited in its jurisdiction over retailers to reviewing orders of local commissions and to revoking state licenses automatically upon the revocation of local licenses by local commissioners. (Article VII, Sec. 6, Liquor Control Act, Ill. Rev. Stat. 1955, Ch. 43, Par. 150.) Defendants moved to strike the complaint, contending that the State Commission under the Act as amended in 1955 has appellate jurisdiction over orders of local commissions and original jurisdiction to institute proceedings and to revoke retail licenses. The trial court overruled defendants’ motion to strike and reversed the order of the State Commission. Thereupon an appeal was taken to this court.

Section 12, Article III of the Act [111. Rev. Stats. 1953, ch. 13, § 108] prior to the 1955 amendments granted power to the State Commission to issue and revoke licenses to manufacturers, importing distributors, distributors, retailers, non-beverage users, railroads, including owners and lessees of sleeping, dining and cafe cars, and boats. Standing alone, the paragraph clearly gave the State Commission authority to revoke as well as to issue licenses to retailers. This provision of the Act (Sec. 12 (1)), was amended in 1955 to give power to the State Commission to issue state licenses both to non-retailers and to retailers and “to suspend or revoke such licenses upon the State Commission’s determination, upon notice after hearing, that a licensee has violated any provision of this Act or any rule or regulation issued pursuant thereto and in effect for thirty (30) days prior to such violation.” The changes made insofar as they affect the power to revoke are:

1. Inclusion of right to suspend,

2. Requirement of notice and hearing,

3. Limitation of the grounds of suspension and revocation to the violation of any provision of the Act and any rule or regulation issued pursuant thereto and in effect for 30 days prior to such violation.

Thus, as in the original Act, Section 12 now grants specific power to the State Commission to revoke both retail and non-retail state licenses, but it subjects that power to the limitations before stated.

Plaintiff contends that, as in the original Act, other provisions of the present Act and the overall plan to divide control of the liquor traffic between state and local authorities reveal that it was the intention of the legislature to restrict the State Commission’s power of revocation to proceedings on appeal. In support of his position he relies heavily on the case of Retail Liquor Dealers Protective Ass’n of Illinois v. Fleck, 408 in. 219, 96 N.E.2d 556 (1951) decided before the 1955 amendments. In that case the plaintiff obtained a local license and made application to the State Commission for a state license. The State Commission assumed the power to investigate and determine whether the plaintiff was a proper person to whom a license should be issued. The Supreme Court held that the State Commission did not have such power, reversing the decision of this division of the Appellate Court (Retail Liquor Dealers Protective Ass’n of Illinois v. Fleck, 341 in. App. 283, 93 N.E.2d 443 (1950)). It should be noted at the outset that the instant case turns on the question of revocation and not on the issuance of a license. It is a distinction to be kept in mind in the consideration of this case. The decision in the Fleck case was based upon the general plan of the legislation for division of power between state and local authorities and on various provisions of the original Act which appeared to be in conflict with the express grant of power given to the State Commission in Section 12. It is therefore necessary to consider the changes that have been made by the 1955 amendments.

The original Act prohibited the State Commission from issuing a license to a retailer unless the person applying for such license should have obtained a local license, and made it the duty of the State Commission to issue a retailer’s Acense when such person had obtained a local license, made application to the State Commission and paid the license fee (Art. Ill, Sec. 13 [111. Rev. Stats. 1949, ch. 43, § 109]). This provision stood without qualification at the time the Fleck case was decided and was an important if not a decisive factor in the court’s decision. The 1955 amendments, however, added a proviso that the issuance of such a license should not prejudice the State Commission’s action in subsequently suspending or revoking such license if it is determined by the State Commission, upon notice and after hearing, that the licensee has, within the same or a preceding license period, violated any provision of the Act or any rule or regulation issued pursuant thereto. It will be noted that the language used in this proviso requiring notice and hearing and limiting the grounds of revocation is like that of Section 12, Article III of the Act as amended in 1955. The amendments to Sections 12 and 13, reasonably construed, show that the legislature intended to make clear and unequivocal its grant of power to the State Commission to revoke retailers’ licenses within the limitations set forth in the amendments.

Another amendment made in 1955 has a bearing on this issue, particularly as it relates to the controlling effect of the Fleck case (Subparagraph 6, Section 12, Article III (Ch. 43, Par. 108, Ill. Rev. Stat. 1955)). Under Section 12, Article III of the original Act, the State Commission was given authority to inspect premises where alcoholic liquors were manufactured, distributed or sold. However, it was provided in the original Act that where a local license was required, such inspection should be for the sole purpose of ascertaining whether a retailer’s license had been obtained. It was argued in the Fleck case that this showed the legislature did not intend the State Commission to have control over retailers, but that its action both as to issuance and revocation should follow the action of the local commissions. This provision has been eliminated by the 1955 amendments. Thus the legislature removed one of the grounds which gave support to the view that the State Commission did not have power to revoke while a local license was still in effect.

Another amendment which reveals the intention of the legislature to grant authority for revocation is contained in Article VII, Paragraph 6 (Ch. 43, Sec. 150, Ill. Rev. Stat. 1955). As it originally stood, this paragraph provided that proceedings for the revocation of non-retailers’ licenses should be before the State Commission, and the only statement with respect to the revocation of retailers’ licenses was a proviso that the revocation of a local license should automatically result in the revocation of a state license. In 1955, after again making provision for the revocation or suspension of licenses to non-retailers, the legislature added this language: “. . . and all proceedings for the revocation or suspension of a retailer’s license before the State Commission shall be in accordance with rules and regulations established by it not inconsistent with law.” The natural and reasonable interpretation of this clause is that when a license is revoked by a local license commission, the State Commission must automatically revoke the state license, but when proceedings are instituted by the State Commission while a local license is in effect, the proceedings must be in accordance with rules and regulations such as that providing for notice and hearing.

From the foregoing we conclude that the 1955 amendments were drafted with an understanding of the effect of the Fleck case and that by these amendments the legislature undertook to do two things: first, to retain the limitation of the power of the State Commission with respect to the issuance of retailers’ licenses, as it was held to exist in the Fleck case; and, second, to make certain that the State Commission had the power to revoke, limiting that power by providing for regularity in proceedings and specifying particular grounds for revocation.

Plaintiff argues that the broad outlines of the Act still reveal an intention to give control of non-retailers to the State Commission and control of retailers to local commissions, except as to an appellate power to be exercised by the State Commission. This, he says, is inconsistent with the power of the State Commission to initiate proceedings to revoke, thus giving the State Commission both appellate and original jurisdiction of the same subject matter. True tbe arrangement created appears to be overlapping and unusual, yet it is not without parallel in both our federal and state governments. The Illinois Liquor Control Act obviously is the product of the stubbornly held and widely conflicting views of the advocates of local control of the liquor traffic and the advocates of state control, as the Attorney General of the State of Illinois indicated in an opinion filed by him in 1934 interpreting the Act at the time of its adoption. (Illinois Attorney General’s Reports & Opinions, 1934, p. 84.) The line between the contending forces was drawn upon the demand by one side that the State Commission have discretionary power over the issuance and revocation of all licenses and the demand by the other that the State Commission have no power with respect to local licenses. Finally, by the 1955 amendments an accord was reached whereby the State Commission was required to issue a state license automatically upon the issuance of a local license and its power to revoke was limited in the manner we have before stated. As always in such a case the statute is not a model of symmetry nor is it perfect in design, but the intention is clearly expressed, and even though it leads to a system of dual control and divided responsibility, it cannot be amended by judicial interpretation.

Plaintiff’s counsel have eloquently argued that this is “but another of the many examples of the grasp for power which seems to be a normal and congenital phenomenon flowing from delegation of legislative power.” They appeal to this court to exercise a restraining hand on this effort of the bureau to extend its jurisdiction “beyond the clear and explicit mandate of the legislature.” This reveals the violence of the controversy which seems ever to beset the regulation of the sale of intoxicating liquors. Although pursued by thousands, the business is not protected by the organic law and is not one of the privileges and immunities of citizens of the United States. The traffic therein is permissive only. Saladino v. City of South Beloit, 9 Ill.2d 320 (1956). In one generation we have witnessed the volatile character of public policy in relation to alcoholic liquor — going from almost unrestrained manufacture and sale to strict regulation, to the Prohibition Amendment, then to repeal of that constitutional amendment and back to regulation. It reflects in turn man’s ambivalence toward the product of grape and grain. It has been called by some “embalmed sunshine,” and “the growth of God.” In ecstasy the poet has exclaimed, “Ah, with the grape my failing life provide, and wash the body whence the life has died.” Tall glasses have been lifted a thousand thousand times to “That blessed land where cocktails float on air and highballs roll on the ground.” On the other hand, there have been those who saw in it the “Devil’s curse,” and “An enemy that man puts into his mouth to steal away his brains.” The frustrating and surely not serious slogan of the maids of the prohibition crusade, “Lips that touch wine shall never touch mine,” still rings in our ears. In the solution of the problems arising out of this ancient controversy, there is no room for breadth of policy in the interpretation of statutes. We must do our best to take the current word and interpret it with as much detachment as we may command and take no counsel of any predilection for home rule which citizens of a great metropolis generally cherish.

The order of the Circuit court is reversed.

Order reversed.

ROBSON, P. J. and McCORMICK, J., concur.