author: MR. JUSTICE ENGLISH

text:
    In the Matter of the Application of the County Collector for Judgment of Sale Against Lands and Lots Returned Delinquent for Non-Payment of General Taxes for the Year 1959 and Prior Taxes. Petition of R. Gabel for Tax Deed. R. Gabel, Petitioner-Appellee, v. City of Chicago, a Municipal Corporation, Respondent-Appellant.
    Gen. No. 49,582.
    First District, First Division.
    April 7, 1965.

      Raymond F. Simon, Corporation Counsel, of Chicago (Sydney R. Drebin and Marvin E. Aspen, Assistant Corporation Counsel, of counsel), for appellant.
    Shaffer, Seelig, Mandel and Shapiro, of Chicago (Kalman S. Lieberman and Owen N. Price, of counsel), for appellee.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Edward J. Hladis, Chief of Civil Division, and Theodore M. Swain, Assistant State’s Attorney, of counsel) , for County Collector of Cook County.
    Robert S. Cushman and Maurice W. Scott, of Chicago, Amici Curiae.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Petitioner, as the assignee of tax sale certificates covering real estate in the City of Chicago, applied to the County Court for the issuance of a tax deed conveying merchantable title to her under the authority of Section 266 of the Revenue Act of 1939. (Ill Rev Stats 1963, c 120, § 747.) Respondent, City of Chicago, objected to the granting of the relief sought unless reimbursement was first made to it as the owner of certain prior tax deeds to the premises. The City’s position was based on Section 270 of the same act. (Ill Rev Stats 1963, c 120, § 751.) After full hearing, the trial court ordered the County Clerk to issue a tax deed in accordance with the petition, and the City has filed this appeal.

There is no issue of fact. Petitioner purchased a tax sale certificate from one J. Rogers who had bought the premises in question at a sale for nonpayment of the 1959 general taxes. Rogers had also paid the general taxes for the years 1947 through 1958, which amounts were included in his certificate of sale. All taxes subsequent to the sale were also paid. The period of redemption had expired and due notices had been given when petitioner applied for the issuance of a merchantable tax deed.

The City of Chicago was listed in the petition among those persons alleged to have an interest in the premises. That interest, which petitioner, in effect, sought to foreclose, stemmed from the City’s ownership of tax deeds which, in turn, were based on its purchase of the premises for the nonpayment of special assessments for the years 1907 through 1912.

Pertinent parts of the two sections of the statute here involved read as follows:

§ 747 (Section 266):
At any time within 5 months prior to the expiration of the time of redemption from the sale of any real estate for nonpayment of taxes or special assessments, pursuant to judgment and order of sale on the County Collector’s application for judgment and order of sale under the provisions of Section 225 of this Act, as amended, the purchaser or his assignee may file a petition in the county court in the same proceeding wherein the judgment of sale was entered upon which the sale was had, praying that the court direct the county clerk to issue a tax deed if the real estate shall not be redeemed from the sale. Such petition shall be accompanied by a filing fee of $15.00. Notice of the fact of filing the petition and the date on which the petitioner intends to make application for an order on the petition that a deed issue if the real estate shall not be redeemed from the sale shall be given to occupants, owners and persons interested in the real estate in the same manner as provided in Section 263, except that only one publication shall be required. . . . The county clerk shall be notified of the filing of the petition and any person owning or interested in the real estate may, if he desires, appear in the proceeding. If the time of redemption expires and the real estate has not been redeemed from the sale and all taxes and special assessments which became- due and payable subsequent to the sale have been paid and all forfeitures and sales which occur subsequent to the sale have been redeemed and the notices required by law have been given and the petitioner has complied with all the provisions of law entitling him to a deed, the court shall so find and shall enter an order directing the county clerk on the production of the certificate of purchase and a certified copy of said order, to issue to the purchaser or his assignee a tax deed. . . . The county court is hereby given jurisdiction to, and upon application therefor shall, issue a writ of assistance to put the grantee in possession of said real estate and is also given jurisdiction to, and shall have the power to, enter such orders and issue such writs as may be necessary or desirable to maintain the grantee in possession of said real estate. Tax deeds issued pursuant to this section shall be incontestable except by appeal from the order of the county court directing the county clerk to issue the tax deed. This section shall be liberally construed so that tax deeds herein provided for shall convey merchantable title. (Emphasis supplied.)
§ 751 (Section 270) :
. . . No final judgment or decree of court in any case either at law or in equity or in proceedings under the Eminent Domain Act involving the title to or interest in any land in which such party holding such tax deed shall have an interest or setting aside any tax deed procured under this Act shall be entered until the claimant shall make reimbursement to the party holding such tax deed and payments as herein provided in so far as it shall appear that the holder of such deed or his assignors shall have properly paid or be entitled to in procuring such deed. (Emphasis supplied.)

Considering first the provisions of Section 266, we are urged by petitioner to interpret this language as fully supporting the trial court’s order. Prior to the 1951 amendment of this section of the Act, a tax deed purported to convey title to the premises involved, but consistent case law through the years had declared that such a tax deed constituted merely a lien or “color of title.” To acquire good title the lienholder was required to take possession of the property, pay taxes for seven consecutive years, and file a bill to quiet title based on Section 6 of the Limitations Act. Ill Rev Stats c 83, § 6.

There can be no doubt but that the 1951 amendment was intended to change this situation as to the character of a tax deed. To say this much, however, is not to reach any conclusion as to the requirements established for the issuance of such a deed conveying merchantable title. The section itself sets forth conditions which must be met before the court may properly direct the issuance of a tax deed. These are:

(1) The period of redemption must have expired without redemption.
(2) All taxes and special assessments becoming due and payable subsequent to the sale must have been paid.
(3) All forfeitures and sales occurring subsequent to the sale must have been redeemed.
(4) The notices required by law must have been given.
(5) The petitioner must have complied with all the provisions of law entitling him to a deed.

In the case at bar the petitioner contends that she has fully complied with all these conditions. The City does not contest the first four points, as listed above, but argues that the fifth condition has not been met; that this condition is broader than the provisions of Section 266 standing alone, and must be considered as encompassing the requirements of any other provision of law which might be pertinent, including Section 270. More specifically, the City contends that the order in this case is a final judgment or decree which has the effect of setting aside its tax deeds, and it could, therefore, not properly be entered under the restrictions of Section 270 without reimbursement to the City.

The general rules of statutory construction are not difficult of ascertainment, but genuine problems often present themselves in application of the rules to particular situations. We are required by Section 266 itself to construe it liberally “so that tax deeds herein provided for shall convey merchantable title.” Yet we must not confine our interpretation to one section of a statute, but, rather, the legislative intent must be gathered from the entire act. Illinois Bell Tel. Co. v. Ames, 364 Ill 362, 366, 4 NE2d 494; School Directors of School Dist. No. 82, Whiteside County v. County Board of School Trustees, 15 Ill App2d 115, 122, 145 NE2d 285. Since Sections 266 and 270 were amended by separate bills in the 1951 session of the legislature, there could probably be an analogy drawn to the rule that two acts passed at the same session must be considered in pari materia. Town of Cicero v. Weilander, 35 Ill App2d 456, 466, 183 NE2d 40. Even separate statutes relating to the same subject or object are in pari materia and must be construed together. Southmoor Bank & Trust Co. v. Willis, 15 Ill2d 388, 394, 155 NE2d 308. Further, in seeking to determine the intent of the legislature, we should not only consider the language used but also “the evil to be remedied and the object to be attained.” Jones v. Pebler, 371 Ill 309, 311, 20 NE2d 592. At the same time, however, we must bear in mind that basic to the whole approach is the rule that where “the language used in a statute is plain and unambiguous, there is no room for construction.” Mason v. Cutkomp, 15 Ill App2d 378, 381, 146 NE2d 382.

It is quite obvious that both sections of the statute were enacted with a view to encouraging tax buyers, thus increasing the collection of money by the various taxing authorities and returning delinquent properties to the tax rolls on a current basis. Cherin v. The R. & C. Co., 11 Ill2d 447, 143 NE2d 235. But the recognition of this intention furnishes scant, if any, assistance here because both parties are tax buyers.

Equitable principles which might be considered in making a liberal construction of Section 266 are also of little value to us in this case. It is argued tellingly that the City could have perfected a title to the premises, as mentioned above, and thus become the owner thereof; that it did not do so; that the owner’s interest is eliminated by the tax deed procedure under Section 266; that the City, under the circumstances, should not be in a stronger position than it would be if it had become the owner. On the other hand, if neither the City nor anyone else had bought the premises for nonpayment of the old special assessments they would have remained a lien on the land and would have had to be paid by petitioner’s assignor when he purchased the premises for nonpayment of the 1959 general taxes. Ill Rev Stats, c 120, § 753. From this springs the classical argument of the tax buyer that his certificate or deed should stand in a preferred position equivalent in priority to that of the taxes whose lien was extinguished by his purchase. Chicago Land Clearance Commission v. Narodski, 57 Ill App2d 302, 207 NE2d 81, and cases therein cited.

Turning to the language of Section 266, it is there made perfectly plain that the petitioner must comply “with all the provisions of law entitling him to a deed.” If by this it had been intended to limit requirements to those set forth within that section of the Act, it would have been very simple to say so. That such was not the intention is indicated, for example, by that section’s failure to refer specifically to the obligation of a tax buyer to pay prior taxes. Ill Rev Stats, c 120, § 753. We conclude, therefore, that the City is correct in its contention that to determine petitioner’s compliance with Section 266 we must determine petitioner’s compliance with all other provisions of law, including all sections of the Revenue Act.

Considering, then, the wording of Section 270 to see if it applies in the instant case, we find that it does. It is hard to conceive of broader or stronger terminology than that used in the preliminary phrase: “No final judgment or decree of court in any case either at law or in equity or in proceedings under the Eminent Domain Act involving the title to or interest in any land. . . .” This statute was on the books when Section 266 was amended to provide for a court-directed issuance of merchantable title tax deeds. As mentioned above, the same 1951 session of the legislature amended both Section 266 and Section 270, but it did not see fit to alter the part of Section 270 which we have just quoted and which is of critical importance in the case at bar.

We take notice of the fact that many actions of the General Assembly are not self-initiated; that parties interested in a particular problem will submit their suggestions to the legislature and urge their adoption; that this is especially true in an area of expertise so narrow and so complex as that involving tax deeds. Now, it may have been the intention of the proposers of the 1951 amendment to Section 266 that the procedure there established should not be affected by the terms of Section 270. But neither section so states. The intention of those who present legislative proposals, the intention of the legislature in adopting an amendment to an individual section of a statute, and the intention of the legislature as expressed in the entire act, may be three different things. By hindsight it appears that the proposers of the Section 266 amendment might well have suggested also that orders entered thereunder be excepted from the prohibition of Section 270. Whether or not such a provision would have been adopted is now, however, only a matter of speculation.

Able counsel for both parties have been unable to cite any authorities bearing directly on the issue before us, and, in consequence, we are aware of the importance attached to the decision in a case of first impression. It is our conclusion that Section 270 of the Revenue Act is applicable to the instant case, and under its terms the County Court’s order should not have been entered until the petitioner had made reimbursement to the City of Chicago for its tax deeds.

The parties have argued minimally in this court regarding the result which would follow if the City’s deeds were not purchased after a reversal of the trial court’s order. We make no decision on this point because the case has not reached that stage, and, for one reason or another, the issue may never arise.

The order of the County Court is reversed and the cause remanded to the Circuit Court of Cook County for further proceedings not inconsistent with the views expressed in this opinion.

Reversed and remanded.

MCCORMICK, P. J. and DRUCKER, J., concur.

On Rehearing

After allowing a petition for rehearing we have also permitted briefs to be filed by the Cook County Collector and by individual amici curiae.

The brief of amici curiae fully supports the position taken by petitioner as set forth in the latter’s original brief and in her petition for rehearing. The extraordinary thing about all these briefs is that they come very close to ignoring completely the statutory provision (the part of Section 270 quoted above) which constituted the primary basis for our opinion in this case. Ill Rev Stats (1963), c 120, §751.

We deem it to be a fair summary of the brief of amici curiae, and of the major part of the petition for rehearing, to say that this court is alleged to have reached a conclusion which is incorrect because of the law expressed in two Supreme Court decisions—Clark v. Zaleski, 253 Ill 63, 97 NE 272 (1912), and Cherin v. The R. & C. Co., 11 Ill2d 447, 143 NE2d 235 (1957).

First, as to the Clark case, we agree completely that it declared the proposition that the reimbursement right of a prior tax deed holder had been cut off by a subsequent tax foreclosure proceeding. Though of the highest authority, that decision was necessarily an interpretation of the statute as it existed in 1912, and the opinion’s viability as a precedent to control a later court must depend on there having been no change in the statute which would dictate a different result. The fact is that there has been such a statutory amendment, and it does, in our belief, require the decision which we have rendered in our original opinion.

In 1912 the part of Section 270 quoted above had not been enacted. The Section (then 224) did, however, contain a proviso clause which has been carried forward into the present Section 270. It reads:

Provided, That any judgment or decree of court setting aside any tax deed procured under this act, shall provide that the claimant shall pay to the party, holding such tax deed, all taxes and legal costs, together with all penalties, as provided by law, ....

Both petitioner and amici refer casually to this proviso as being the same as the reimbursement provision of Section 270 which we set forth in our opinion, though they do concede that in the latter it has been “somewhat expanded,” or “broadened to cover additional circumstances where reimbursement is required.” Indeed it has, and neither brief makes any attempt to show what the meaning of the broader language should be if it were not to be interpreted in the way we have construed it. The only argument which we can extract from the briefs by inference is that the more encompassing terms of the present statute should be ignored.

At the time of the Clark decision, the only circumstance requiring reimbursement of a prior tax deed holder was the entry of a decree “setting aside” such a tax deed. This contemplated a decree which would accomplish just what the statute stated — the setting aside of a tax deed as a cloud on title. The tax foreclosure proceeding with which the Clark court was concerned did not involve the setting aside of a tax deed, but, rather, the foreclosure of the interests of the tax deed holder and others. There is a very real difference. When a tax deed is set aside, the interest of its holder is extinguished ipso facto, but when it is foreclosed, he may share in the proceeds of sale if the price is high enough to extend that far after payment of interests having priority.

So we would agree with the Clark court, as, of course, we are bound to do, that a tax foreclosure does not “set aside” a prior tax deed, and the holder of such a deed would not be entitled to reimbursement under the proviso clause of Section 270. While part of the City’s argument in the instant case is that the order appealed from was one which had the effect of “setting aside” its tax deeds, we do not so hold.

As we have mentioned, however, the statute was amended in 1919 by the addition of the sentence, part of which we shall repeat for purpose of reexamination:

No final judgment or decree of court in any case either at law or in equity or in proceedings under the Eminent Domain Act involving the title to or interest in any land in which such party holding such tax deed shall have an interest or setting aside any tax deed procured under this Act shall be entered until the claimant shall make reimbursement to the party holding such tax deed .... (Emphasis supplied.) Ill Rev Stats (1963), c 120, §751 (Section 270).

The question presented to us is therefore quite different from that which faced the court in the Clark case. We are not limited to considering whether the order was one “setting aside” a tax deed. We need only decide whether the order appealed from is one “involving the title to or interest in any land in which such party holding such tax deed shall have an interest.” We conclude that it is. And we are not concerned with the alternative coverage of the statute which applies to “setting aside any tax deed.” It being only this alternative coverage clause which is similar to the proviso clause effective at the time of the Clark decision, we find nothing in the Clark opinion to guide us in interpreting the very different language now confronting us, nor do we find in that opinion anything to deter us from reaching the conclusion we have indicated.

The other decision upon which great reliance is placed by petitioner and amici curiae is that of Cherin v. The R. & C. Company, supra. This opinion was filed in 1957, so the statutory background was essentially the same as in the instant case. Cherin also involved a proceeding under Section 266 as amended in 1951. In our view, though, the Cherin case affords no help to petitioner in the case now before us.

Cherin was the owner of real estate which was the subject of tax deeds issued to The R. & C. Company pursuant to order of court after an annual tax sale. Some eight months after entry of the order, Cherin petitioned to have it and the tax deeds set aside on the ground that proper statutory notice had not been given. On appeal from denial of the petition the Supreme Court affirmed. It held that the petition to vacate, coming when it did, amounted to a collateral attack on the order directing issuance of the deeds, and, in the light of the finding of due notice embodied in the order, such an attack would not lie. The Supreme Court noted that the county court order contained the finding, “that all notices required by law have been given and Petitioner, . . . has complied with all the provisions of law entitling it to tax deeds to said parcels of real estate.” (Page 449.) (Emphasis supplied.)

In holding that such a finding was conclusive against collateral attack, the court found a parallel in the tax foreclosure proceedings similarly approved in Clark v. Zaleski, which was also a case of collateral attack. The court commented that by the 1951 amendments to Section 266 the legislature had “assimilated the procedure with respect to the issuance of deeds following annual tax sales to that used in tax foreclosure proceedings by requiring that the right to the issuance of a deed be determined by the county court instead of by the ministerial act of the county clerk and determined that: ‘Tax deeds issued pursuant to this section shall be incontestable except by appeal from the order of the county court directing the county clerk to issue the tax deed.’ ” (Page 453.) (Emphasis supplied.)

It seems obvious to us that the Cherin decision imposes no bar to the conclusion we have reached. The court recognized that the statutory post-sale conditions must be met by the purchaser, and made specific reference to the county court’s finding that the petitioner in Cherin had “complied with all the provisions of law entitling it to tax deeds.” In precluding collateral attack against such an order, the court also expressly recognized the right of a party to obtain review of such a finding by taking an appeal from that order.

In the instant case we do not have a collateral attack, and we do have an appeal of the kind referred to. We believe that the Cherin decision contemplates that it is our duty then to determine whether or not petitioner complied with all the statutory conditions so as to entitle her to a deed.

Petitioner makes a further point that the order appealed from, directing issuance of a tax deed to petitioner, is not a “final judgment or decree” and is therefore not encompassed within the language of Section 270. It is only a supplemental or auxiliary order, she says, implementing the previously entered order of sale. Certainly it is supplementary to the order of sale by its very nature, but it is also a “final judgment or decree” in that it is a final, appealable, judicial determination that the statutory conditions precedent to the issuance of a tax deed have been performed or met by the petitioner. Young v. Madden, 20 Ill2d 506, 509-511, 170 NE2d 551.

Petitioner then argues that the land had been sold to her assignor clear of all claims, and that the sale itself had extinguished all right and interest of the City (and the owner, any mortgagee, lienor, etc.) except for the right to redeem from the sale; that it was only because of the City’s redemption right that petitioner had acknowledged that the City had an interest requiring notice on petitioner’s application for the order directing issuance of a tax deed. Conceding, arguendo, that Section 270 would apply to an order “involving the title to or interest in any land in which such party (the City) holding such tax deed shall have an interest,” petitioner contends that the City had no such interest remaining at the time the order was entered directing issuance of a deed, because by that time the City’s right of redemption had expired. This argument may be said to be consistent with petitioner’s having alleged in her petition for issuance of a deed that the City did have an interest, since the right to redeem had not run its course when the petition was filed.

If it were true that the order in question had been entered at a time when the City had no interest, we would agree with petitioner that Section 270 would have imposed no barrier to its entry. The question thus raised is whether, after the sale, the City continued to have any interest other than its right to redeem. We think it did.

Let us assume a few hypothetical developments after the sale to petitioner, and examine their consequences. Suppose there had been some unpaid general taxes charged on the land which had not been included in the advertisement, and suppose further that petitioner had failed to pay them within the time allowed by Section 247 of the statute. Ill Rev Stats (1963), c 120, § 728. That Section states that in such event the sale would have become void and the purchaser would not have been entitled to a certificate of purchase. But what about the title? If, as petitioner urges in this court, the sale had transferred title to the purchaser then and there, the statute would then have to make some provision for the retransfer of title back to the owner, and for reinstatement of any liens, etc., which had existed prior to sale. It does not do this. On the contrary, the statutory scheme did not contemplate the jumping of title forth and back, but, in our opinion, left it right where it was before the sale, pending the purchaser’s compliance with the condition imposed by Section 257. During the statutory period after the sale, within which our hypothetical petitioner might have paid the other taxes due, the City’s interest in the land remained unextinguished by the sale, but subject to being foreclosed by the rights acquired by the purchaser at the sale. If the purchaser had not qualified for a certificate of purchase the various title interests would have continued unaffected by the ineffective purchase except for the reimbursement lien given to the purchaser by Section 247 in such a circumstance.

This general scheme persists through other Sections of the statute which are applicable after the issuance of a certificate of purchase. For examples, under the provisions of Section 263 notice of purchase must be given by the purchaser to the owner, occupants and others; Section 266 requires notice also in connection with the purchaser’s petition for the issuance of a deed; and the same Section requires the purchaser to make payment of subsequent taxes and redeem subsequent forfeitures and sales. Ill Rev Stats (1963), c 120, §§744 and 747. If the court were to find that the purchaser had made a bona fide attempt to comply with these requirements and failed, then, pursuant to Section 266, the court would order return of the purchase price “as in case of sales in error.” Section 260 covers sales made in error and provides simply that upon making such refund to the purchaser the County Collector shall cancel the certificate of purchase and the County Clerk shall make an appropriate entry on his records.

And what of the title in such event? The statute is silent. Again, if petitioner’s point were valid, she would have held title from the time of sale, and some sort of retransfer would be necessary to get it back to the former owner, and something would also be required to reinstate former liens, etc. The statute does not seem to contemplate any such thing. In our opinion the interests of the owner and lienors had remained alive this whole time, and were ready and waiting to emerge with all their prior validity upon failure of the purchaser to fulfill the post-sale statutory requirements. And this is so, even though with the successful completion of each step by the purchaser the foreclosure of these interests might become more and more probable.

Section 268 (c 120, § 749) provides that the County Clerk’s tax deed shall be recorded and shall vest title in the grantee — a result which, of course, could not occur if, as petitioner argues, he had already acquired title at the sale. Section 271 (c 120, § 752), however, adds still another condition. It states (among other things) that unless the holder of a certificate of purchase takes out such a tax deed and records it within one year from expiration of the redemption period, “the said certificate or deed, and the sale upon which it is based, shall, from and after the expiration of such one year, be absolutely null.” (A 1965 amendment to this Section added the words, “and void with no right to reimbursement.”)

On this hypothesis the question would once more arise as to what was the state of the title on failure to record a tax deed in apt time, and with the same answer, so far as we can see. It would only be after compliance with all the statutory conditions subsequent to sale that a purchaser could become the grantee of a tax deed, and only with the timely recording of the deed would the presale interests of the owner, lienors, etc., become fully foreclosed.

In conclusion as to this point, therefore, we hold that the City in the instant case continued to have an interest in the land at the time of entry of the order directing issuance of a tax deed to petitioner. That being true, the unambiguous language of Section 270 required that the order appealed from not be entered until after reimbursement to the City.

We are aware — as we were at the original hearing in this case — that the result we reach may not be conducive to the encouragement of buyers at annual tax sales. That, however, is a problem for the legislature. If Section 270 were not to apply to this situation, it would have been, and can yet be, a simple matter so to provide. As mentioned in our original opinion, we cannot assume that the legislature was unmindful of the existence of Section 270 at the time it enacted the pertinent provisions of Section 266 because both Sections were amended at the same session in 1951.

We refer again to the opinion in Clark v. Zaleski, 253 Ill 63, 76, 97 NE 272, where the court quoted with approval from its earlier opinion in People v. Biggins, 96 Ill 481, 486:

If our Revenue law is defective, it is the duty and business of the legislature to amend it. Courts are powerless to interfere. They cannot make, but can only construe, laws after they are made by the legislature.

The long legislative history in this field evidences many instances of statutory amendment to protect the position of the tax buyer. Section 270 embodies more than one such example. Perhaps it went too far in reaching the ultimate of protecting one tax buyer against another. We make no policy judgment in this regard.

In its brief on rehearing, the City argues, in the alternative, that even if a private tax deed holder would not have to be reimbursed under the circumstances of this case, the City is in a different and stronger position. The Cook County Collector, as amicus curiae, supports this contention. Because of the conclusion we have reached, however, we do not consider it necessary to discuss this point.

The order of the County Court is reversed and the cause remanded to the Circuit Court of Cook County for further proceedings not inconsistent with the views expressed in this opinion as supplemented.

Reversed and remanded.

DRUCKER, P. J. and MCCORMICK, J., concur.

       Appeal was taken to the Supreme Court which transferred the case here.

       There is no question about the City’s authority to make these purchases under Section 9-2-98 of the Municipal Code, and its predecessor statutes. Ill Rev Stats c 24, § 9-2-98.

       We have no difficulty in finding that the petitioner in this case, being one who seeks relief against the holder of tax deeds, is a “claimant” within the meaning of the clause in Section 270 which reads “until the claimant shall make reimbursement.”

       Another part of Section 266 reads:
      If the county court shall refuse to enter an order directing the county clerk to execute and deliver the tax deed, because of the failure of the purchaser to fulfill any of the above provisions, it shall order the return of the purchase price forthwith as in case of sales in error in all cases where the purchaser or his assignee has made a bona fide attempt to comply with the statutory requirements for the issuance of the tax deed.


source: Caselaw Access Project

author: JUSTICE BURKE.

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Sylvester, Defendant-Appellant.
    Gen. No. 50,638.
    First District, Second Division.
    April 26, 1966.
    Eugene W. Wood and Howard T. Savage, of Chicago, for appellant;
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Salvatore R. Strazzante, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


text:
    Lillian Rennie, Plaintiff-Appellee, v. Leo F. Jacoel, Defendant-Appellant.
    Gen. No. 50,660.
    First District, Second Division.
    April 26, 1966.
    Thomas William Burke, of Chicago, for appellant;
    Fred Lambruschi and Harold Bell, of Chicago (Fred Lambruschi, Herbert P. Veldenz and Vera Cuthbert, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


author: JUSTICE LYONS.

text:
    Beverly Leslie Taylor, Plaintiff-Appellant, v. Robert Taylor, Defendant-Appellee.
    Gen. No. 50,957.
    First District, Second Division.
    April 26, 1966.

      Gomberg & Missner, of Chicago (Sidney D. Missner, of counsel), for appellant;
    no appearance made for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.


author: MR. JUSTICE LYONS

text:
    Cleo Andrews, Administrator of the Estate of Charles Herman Andrews, Deceased, Plaintiff-Appellant, v. Thomas D. Porter, and City of Chicago, a Municipal Corporation, Defendant-Appellee. Elbert Fox, Plaintiff-Appellant, v. City of Chicago, a Municipal Corporation, Defendant-Appellee, and Patrick Price, et al., Defendants.
    Gen. Nos. 50,328, 50,329.
    First District, Second Division.
    May 3, 1966.

      Rogers, Strayhorn & Harth, of Chicago (Raymond E. Harth, of counsel), for appellants.
    Raymond F. Simon, Corporation Counsel of the City of Chicago (Sydney R. Drebin and Allen Hartman, Assistant Corporation Counsel, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

These cases represent consolidated appeals from two judgments on the pleadings in favor of the City of Chicago.

In No. 50328 (Andrews, Administrator v. City of Chicago), Count One of the complaint is against a policeman, Thomas Porter, and alleges, in substance, that on August 1, 1960, defendant negligently shot and killed one Charles Andrews; that decedent was in the exercise of due care and caution; that decedent left surviving him a wife and five minor children, who suffered pecuniary loss as a result of said wrongful death; and that plaintiff, the widow, is the administratrix of the estate of the deceased.

Count Two is against the City of Chicago and alleges that the defendant policeman was engaged in the business of said city and acting in the course of his employment at the time of the injury. This count incorporates the allegations of Count One and prays for a direct judgment against the city for the negligent acts of its employee.

Count Three alleges that a statute, chap 24, par 1-4-5 of the Illinois Revised Statutes (1963), provides that a city shall indemnify a policeman for any judgment recovered against him by a person injured by said policeman while he is engaged in the performance of his duties, except where the injury results from his wilful misconduct. This count incorporates the allegations of Count One and further alleges that the requisites of the Statute have been met and prays for a declaratory finding to that effect; for a further declaratory finding that defendant City is liable to plaintiff for a sum in the amount of any judgment rendered against the policeman; and for a direct declaratory judgment against the city for the amount of any such judgment.

In No. 50329 (Fox v. City of Chicago), Count One names as defendants three Chicago policemen, and alleges, in substance, that on January 24, 1963, plaintiff was arrested for a traffic violation and tendered bond for his release at the station; that his bond was refused and he was retained in custody on a purported charge of larceny, on the alleged authority of a capias previously issued against one Albert Fox; that plaintiff had never been charged with the offense of larceny and no capias or warrant for any such offense had ever been issued against him; that the capias on which plaintiff was being held was null and void, for the reason that the Albert Fox named therein, on June 19, 1962, several months prior to the arrest of plaintiff, had been sentenced to serve twenty days in the County Jail for the offense referred to in the capias and had in fact served the sentence; that plaintiff informed defendants of the above facts and requested that they verify them; that defendants arbitrarily refused to do so and kept him in custody and produced him in court the following morning; that he appeared in court and apprised the judge of the above facts, whereupon the judge directed the assistant state’s attorney to attempt to verify the statements made by plaintiff and that this was done and plaintiff was released from custody. This count prays for general and punitive damages against the policemen.

Count Two, as in No. 50328, names the City as defendant, incorporates the allegations of Count One, and prays for a direct judgment against the City for the negligence of its employees.

Count Three, alleges the same statute raised in Count Three of No. 50328 and prays for the same relief.

In both cases, the City filed Motions to Dismiss, alleging that direct action against the City is barred by chapter 24, par 1-4-5 of the Illinois Revised Statutes (1963). In separate judgments dated October 19, 1964 in No. 50329 (Fox v. City, et al.) and November 18, 1964 in 50348 (Andrews v. City, et al.), the trial court sustained the City’s motion and dismissed the actions, as to the City only, on the ground that a municipal corporation cannot be sued directly for the alleged tortious actions of its police officers. The court found no just reason for delaying an appeal. From these judgments plaintiffs appeal.

Plaintiffs’ theory of the case is (1) that under the decision of the Illinois Supreme Court in Molitor v. Kaneland Community Unit Dist., 18 Ill2d 11, 163 NE2d 89 (1959), and subsequent decisions, the City of Chicago is liable for the tortious actions of its police officers and may be sued directly for damages resulting therefrom and (2) that the indemnity provision found in Illinois Revised Statute (1963), chapter 24, par 1-4-5, is for the benefit of policemen against whom judgments may be rendered and does not bar a direct action against the City.

It is the theory of defendant, City of Chicago, (1) that the City’s liability for the tortious acts of its policemen is limited by statute to that of indemnitor, (2) that this is the exclusive remedy of the injured person and (3) that no direct action may be initiated against the City without first securing judgment against the policemen.

The indemnity provisions found in par 1-4-5 read in substance as follows:

1-4-5. Indemnification for injuries caused by policemen — Liability for injuries caused while assisting policeman.
In case any injury to the person or property of another is caused by a member of the police department of a municipality having a population of 500,000 or over, while the member is engaged in the performance of his duties as a policeman, and without the contributory negligence of the injured person or the owner of the injured property, or the agent or servant of the injured person or owner, the municipality in whose behalf the member of the municipal police department is performing his duties as policeman shall indemnify the policeman for any judgment recovered against him as the result of such injury, except where the injury results from the wilful misconduct of the policeman. . . .

A brief consideration of the legislative history of par 1-4-5 reveals that the predecessor to said section was enacted in 1943 as par 1-15, Ill Rev Stats (1943), chapter 24, par 1-15. That provision, in effect, removed the defense of governmental immunity from Illinois cities and villages having a population of 500,000 or over and made said municipalities directly liable for injuries caused by policemen, but limited the actions to injuries resulting from “the negligent operation of a motor vehicle.” In 1945 section 1-15 was amended and said municipalities were made liable for all nonwilful torts of policemen in their employ, however, the Legislature removed the provision for direct liability and made said municipalities liable only as indemnitors. Ill Rev Stats (1945), chapter 24, par 1-15. This refinement was continued down to the present statutory successor to par 1-15, which is found in Ill Rev Stats (1965), chapter 24, par 1-4-5.

At the outset, it is an undisputed principle of law that a plaintiff has a cause of action against a policeman for the tortious conduct of the officer acting in the performance of governmental functions. Erikson v. Fitzgerald, 342 Ill App 223, 96 NE2d 382 (1950). Both of the instant cases present a valid cause of action against the defendant policemen.

We next consider the alleged liability of defendant, City of Chicago, in Count Two of each complaint.

Plaintiffs contend that the decision in Molitor v. Kane-land Community Unit Dist., supra, erased from Illinois law the prior concept of governmental immunity from liability and that this decision can be applied to the tortious acts of a policeman employed by a municipal corporation.

Defendant contends that the governmental liability of a municipal corporation was not erased by the decision of Molitor, but took place in 1943 when the Illinois Legislature passed legislation abolishing a municipal corporation’s immunity, but limited liability to its injuries resulting from the negligent operation of a motor vehicle.

We agree with defendant. Shortly thereafter, however, in 1945, an amendment was passed which changed the aforesaid statute into an indemnification provision. From that time on the statute existed primarily for the benefit of policemen against whom a judgment was rendered and not for the benefit of the person injured. This construction is strengthened when we compare par 1-4-5 with par 1-4-6, which is a similar paragraph applying to cities under 500,000 population. Policemen in those cities must give the municipality written notice within ten days of being served with process and there is the further provision that “the duty of the city to indemnify any such policeman for any judgment recovered against him shall be conditioned upon receiving notice of the filing of any such action in the manner and form hereinabove described.” In other words, if a policeman, when sued, fails to give notice, the construction urged by the defendant, (i. e., that the statute is the exclusive remedy against the city for negligent torts of policemen) would result in a complete defeat of the injured person’s action against the city.

In further support of plaintiffs’ contention the following governmental agencies, in addition to cities and villages, are by statute, specifically authorized to maintain police forces:

Chap. 19, § 182.13 - Waukegan Port District
Chap. 19, § 287 - Tri-City Regional Port District
Chap. 42, § 317 - Sanitary Districts (within Municipalities)
Chap. 42, § 360 - Chicago Sanitary District
Chap. 42, § 403 - River Conservancy Districts
Chap. 42, § 438 - Sanitary Districts (outside municipalities)
Chap. 57%, § 9 - Forest Preserve Districts
Chap. 105, § 4 — 7 - Park Districts
Chap. 111%, § 238 - Water Authorities
Chap. 111%, § 327 - Chicago Transit Authority
Chap. 122, § 435.8 (10) - Southern Illinois University
Chap. 122, § 577.8(10) - Western Illinois University
Chap. 144, § 28 - University of Illinois

In none of the foregoing statutes is there any provision for indemnity. If defendant’s contention, that a governmental agency maintaining a police force may not be sued directly due to the tortious conduct of its policemen, was followed, a plaintiff would be foreclosed from recovery against the municipality. We conclude that governmental immunity was abolished in part by statute in 1948, but was reinstated by statute in 1945.

We must now determine if in fact governmental immunity for the aforesaid tortious conduct of a policeman was subsequently abolished by Molitor. There is no precedent in Illinois for the proposition that the decision in Molitor, abolishing governmental immunity, could be applied to the tortious conduct of a police officer. In Peters v. Bellinger, 22 Ill App2d 105, 159 NE2d 528 (1959), however, the court stated at page 107:

On appeal in this court the basic issue before us is whether a city may be held liable directly for the tortious acts of one of its police officers. This issue, we believe, has been decided by the Supreme Court of Illinois, on May 22, 1959, in the case of Molitor v. Kaneland Community Unit District No. 302, favorably to the plaintiff in this case.

That decision was filed July of 1959. On appeal to the Supreme Court, the Supreme Court reversed the Appellate Court decision, 19 Ill2d 367, 166 NE2d 581 (1960) but only on the ground that liability pursuant to the Molitor case can be applied only prospectively after December 16,1959, and that as the cause of action arose before that date, there cannot be a recovery for those causes of action that arose before December 16, 1959. The court stated at page 369:

We do not reach the question of applicability of the Molitor holding to this case since the cause of action here arose on July 20, 1956, long before December 16, 1959, the effective date of the Molitor opinion; which struck down the doctrine of governmental immunity. Those municipal and quasi-municipal corporations which have enjoyed immunity in the past continue to enjoy it until December 16, 1959. Recovery may be made in causes of action arising thereafter where it is determined that the type of governmental unit involved is no longer entitled to immunity. . . .

We hold, therefore, that (1) a common law cause of action may be maintained against a municipal corporation for the tortious conduct of its police officers under the holding of Molitor v. Kaneland Community Unit Dist., supra, and that (2) par 1-4-5 of the Illinois Revised Statutes does not bar such direct action.

It may be argued that plaintiff may not allege both common law and statutory causes of action. This would, however, be contrary to the provisions of the Illinois Practice Act, El Rev Stats (1965), ch 110, pars 43(1) and 44(1). Furthermore, an examination of par 1-4-5 shows no express limitation that the statutory remedy is to be exclusive. Thus, the statutory provision does not foreclose plaintiff from maintaining a common law cause of action against the municipality arising from the alleged tortious action of one of its police officers. Therefore, the judgments of October 19, 1964 and November 18, 1964, will be reversed and remanded with directions to deny the motions to dismiss Count Two of each complaint as to the City of Chicago.

The Local Governmental and Governmental Employees Tort Immunity Act, Ill Rev Stats (1965), ch 85, pars 1-101 through 9-107, approved on August 13, 1965, does not affect the issues herein because it was not in effect at the time of the alleged occurrences.

We next consider the allegations set forth in Count Three of both cases, which prays for a declaration that defendant, City of Chicago, pursuant to par 1-4-5, be held directly liable to plaintiff for a sum in the amount of any judgment rendered against the defendant police officers. The statutory provision relating to declaratory judgments is found in Ill Rev Stats (1963), ch 110, §57.1(1):

DECLARATORY JUDGMENTS. (1) No action or proceeding in any court of record is open to objection on the ground that a merely declaratory judgment, decree or order is sought thereby. The court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed, including the determination, at the instance of anyone interested in the controversy, of the construction of any statute, municipal ordinance, or other governmental regulation, or of any deed, will, contract or other written instrument, and a declaration of the rights of the parties interested. The foregoing enumeration does not exclude other cases of actual controversy. The court shall refuse to enter a declaratory judgment, decree or order, if it appears that the judgment, decree or order, would not terminate the controversy or some part thereof, giving rise to the proceeding.

Plaintiffs contend that even though the City is an indemnitor, a declaratory judgment may be entered against it on the condition that subsequently a judgment is rendered against the policemen. It is defendant’s position that a judgment must be entered against the policemen before the City’s liability as indemnitor may be resolved.

We are not called upon to resolve the issue because Rule 39, Part IV of the Rules of the Supreme and Appellate Courts of Illinois states in part:

The Argument shall be limited to the points made and cases cited in the Points and Authorities, and in the sequence in which the points are made. A point made but not argued may be considered waived.

Plaintiffs did not argue this point in their briefs.

We note that the issue of coverage raised under the indemnification statute is more complex than the same issue under a contract of indemnity. The trial court would have to determine whether the complained of conduct of the policemen was wilful and wanton. We find that the trial court did not abuse its discretion in deciding not to entertain the counts for a declaratory judgment. See Joint Committee Comments, SHA chapter 110, section 57.1, foot of page 224. Also see 26 CJS, 70, sec 11, Declaratory Judgments. The causes of action attempted to be stated in Count Three for declaratory judgments are premature.

The judgments for the City of Chicago on Count Two of the complaints are reversed. The judgments for the City on Count Three of the complaints are affirmed, and the causes are remanded for further proceedings not inconsistent with this opinion.

Judgments reversed in part and affirmed in part and causes remanded with directions for further proceedings not inconsistent with this opinion.

BRYANT, P. J. and BURKE, J., concur.


author: MR. JUSTICE BURKE

text:
    Everd S. Boyer, Plaintiff-Appellee, v. The Atchison, Topeka and Santa Fe Railway Company, a Corporation, Defendant-Appellant.
    Gen. No. 50,742.
    First District, Second Division.
    May 3, 1966.
    Floyd Stuppi, John J. Schmidt and Gus Svolos, of Chicago, for appellant.
    Ozmon & Lewin, of Chicago (Sidney Z. Karasik, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This appeal is taken from a judgment entered on a verdict for plaintiff for personal injuries sustained by him as a passenger on defendant’s railroad train. On a prior appeal of this case, a judgment on the pleadings for defendant was reversed and a trial ordered on the merits. (Boyer v. Atchison, T. & S. F. Ry. Co., 34 Ill App2d 330, 181 NE2d 372.)

After the case was remanded for trial, and before the trial, defendant amended its answer, alleging that the free pass under which plaintiff was riding was issued to “E. S. Boyer and Wife,” whereas the party with whom plaintiff was traveling when injured was his sister, thereby constituting a violation of the Hepburn Act and a revocation of the free pass, and rendering plaintiff a trespasser. 49 USC § 1(7). On plaintiff’s motion the amendment was stricken by the trial court.

With the exception of the question relating to plaintiff’s violation of the Hepburn Act, defendant admittedly argues the same questions of law on this appeal which were argued on the former appeal and which were resolved adversely to defendant. The questions of law decided on the former appeal are the law of the case, binding on the trial court and on this court, and we have decided to adhere to our opinion in the former appeal. See People ex rel. Kastning v. Militzer, 301 Ill 284, 133 NE 761; People ex rel. Powell v. Board of Education of City of Chicago, 348 Ill App 390, 108 NE2d 814.

Plaintiff’s violation of the Hepburn Act, in obtaining his sister’s passage as his wife, in no way alters his status as an authorized passenger, so as to preclude recovery for his injuries. The most that can be said in this regard is that plaintiff misrepresented his sister’s status, which of itself does not render the pass void as to plaintiff. Plaintiff’s sister, not plaintiff, was the unauthorized passenger. The cases cited by defendant in support of its position are not in point, for the reason that they involve the alleged unauthorized passenger himself as the party-plaintiff: Toledo, W. & W. R. Co. v. Beggs, 85 Ill 80, and Rice v. Illinois Cent. R. Co., 22 Ill App 643. Furthermore, this situation is analogous to cases where an injured employee sues to recover for injuries under the Federal Employers’ Liability Act, and the employer defends on the grounds that the employee made misrepresentations at the time of hiring, resulting in no employment. There is no causal relation between the misrepresentations and the injuries. See Taylor v. Elgin, Joliet and Eastern Ry. Co., 33 Ill App2d 64, 178 NE2d 704.

For these reasons the judgment is affirmed.

Judgment affirmed.

BRYANT, P. J. and LYONS, J., concur.


author: CORYN, P. J. STOUDER, J.,

text:
    M. Helen Magnani, Administratrix of the Estate of Raymond Martin Magnani, Deceased, Plaintiff-Appellant Cross-Appellee, v. Arnold Trogi, Defendant-Appellee Cross-Appellant.
    Gen. No. 11,900.
    Second District.
    May 4, 1966.
    Rehearing denied July 5,1966.

      Jacobs and McKenna, of Chicago, for appellant.
    Hall, Meyer, Fisher, Van Deusen, Holmberg & Snook, of Waukegan, for appellee.
   CORYN, P. J.

Plaintiff, M. Helen Magnani, individually, and as Administratrix of the Estate of Raymond Martin Magnani, deceased, after leave, appeals here from an order of the Circuit Court of Lake County granting defendant a new trial. Defendant, Arnold Trogi, cross-appeals from an order denying his alternative motion for judgment notwithstanding the verdict.

Plaintiff’s complaint states two separate causes of action. In Count I she seeks recovery of $30,000, as Administratrix, for the wrongful death of her decedent, pursuant to the Wrongful Death Act (Ill Rev Stats, c 70, §§ 1, 2). By the second count of the complaint she seeks reimbursement, in her individual capacity, for medical and funeral expenses necessarily incurred by her as the result of the injury and death to her husband, pursuant to the Family Expense Statute (Ill Rev Stats, c 68, §15).

The Wrongful Death Act provides that any recovery thereunder shall be distributed by the court in which the cause was heard to the widow and next of kin of the decedent, in proportion, as determined by the trial court, “that the percentage of dependency of each such person upon the deceased person bears to the sum of the percentages of dependency of all such persons upon the deceased person.” Here, any award of the jury, for a wrongful death, would be apportioned by the trial court to the widow and minor son of decedent. There would be no apportionment of any award made under the provisions of the Family Expense Statute.

At Ill Rev Stats, c 110, § 68(3), it is provided that when there are several counts in a complaint “based on different demands upon which separate recoveries might be had, the court shall, on the motion of any party, direct the jury to find a separate verdict on each demand.” The Joint Committee drafting the most recent amendments to this section of the Civil Practice Act commented as follows: “Separate verdicts are appropriate only when recovery on different demands is sought in the same complaint. Therefore, the words ‘upon which separate recoveries might be had’ have been added, making clear that the provision authorizing separate verdicts applies only to separate causes of action based upon separate transactions.”

In the instant case, there can be no doubt that the recovery sought under each count of plaintiff’s complaint was based on separate causes of action, that is, one action for wrongful death, and the other under the Family Expense Statute. Unfortunately, neither party to this suit tendered separate forms of verdict for each of these counts. Rather, a single form of verdict was submitted by the court to the jury without objection from plaintiff or defendant. Using this form the jury returned the following verdict: “We, the jury, find in favor of the plaintiff and against the defendant. We assess the damages in the sum of $19,000.” The trial judge, in his memorandum of opinion allowing a new trial, properly expressed the dilemma this verdict created for him by stating: “In the case at bar, there were two counts. Does the single verdict all apply to just one count, or to both counts? It might be that the verdict was all for the wrongful death action, and nonliability as to the medical expense cause of action.” After making this observation, the trial judge then concluded that the verdict must be set aside and a new trial ordered as to both the liability and damage aspects of the case. Although other points have been raised in this appeal, we believe the determinative issue to be whether the trial judge, when faced with this situation, abused his discretion by granting a new trial.

The purpose of vesting the trial judge with power to grant a new trial is to permit him, before losing jurisdiction of the case, to correct errors that he or the jury might have made during the course of the trial. Courts of review have repeatedly stated that they will not disturb the decision of a trial court on a motion for new trial unless a clear abuse of discretion is affirmatively shown. The reason for this rule is that the trial court has had the opportunity to consider the conduct of the trial as a whole, and therefore is in a superior position to consider the effects of errors which occurred, the fairness of the trial to all parties, and whether substantial justice was accomplished. Duff v. Ewing, 60 Ill App2d 382, 208 NE2d 320. Greater latitude is allowed a trial court in granting a new trial than in denying a new trial. Hollis v. Mateika, 66 Ill App2d 267, 213 NE2d 409.

Plaintiff argues that defendant has waived his right to complain of the form of verdict because he did not object to the giving of this form to the jury, but raised the issue for the first time in his post-trial motion. In most instances this would be a valid argument. Here, however, because of the single form of verdict, the jury’s determination of liability and damages on each of the two causes of action was not made known. It appears that the jury found liability against the defendant on the wrongful death action, but any conclusion about what the jury’s verdict was regarding liability on the family expense action is pure conjecture. Also, the language of the verdict returned gives no indication of the jury’s determination as to what portion of the total verdict of $19,000 it attributed to damages for wrongful death, and what portion, if any, to damages for medical and funeral expenses. The determination of liability and damages, in the first instance, is to be made by the jury.

The jury returned its verdict on December 21, 1962, and the defendant filed his post-trial motion on January 15, 1968, thereby raising this issue for the first time. It was impossible, then, for the court to reassemble the jury and instruct them to correct the error in the form of verdict. People v. DeStefano, 64 Ill App2d 389, 212 NE2d 357. This situation, we conclude, created a proper and substantial basis for the trial judge to grant a new trial, and in so doing he did not abuse his discretion. We are not holding, by this opinion, that the failure to submit to the jury separate forms of verdict in cases involving multiple causes of action should, in every instance, result in the granting of a new trial, but rather, that in the situation presented here it was not an abuse of discretion for the trial judge to grant a new trial.

The order of the Circuit Court of Lake County, granting defendant’s motion for new trial, vacating and setting aside the verdict and judgment, and denying defendant’s motion for judgment notwithstanding the verdict, is affirmed.

Affirmed.

ALLOY, J. concurs.

STOUDER, J.,

dissenting.

Dissenting Opinion

I do not agree with the opinion of the majority. The record before us clearly shows that Plaintiff waived any individual interest in the verdict. The verdict, then being within the range of the evidence and the law, any possible dilemma facing the trial court was thereby solved.

As was succinctly stated in Hall v. Chicago & N. W. Ry. Co., 349 Ill App 175, 110 NE2d 654 “We are not unmindful of the rule and cases which hold that the trial judge is allowed broad discretion in granting motions for a new trial, and that his actions will not be reversed on appeal except in cases of clear abuse of such discretion; but this rule, like all others, has its limitations. A judge is not empowered to set aside a verdict in any case simply because he does not agree with it. The case at bar presents the question whether the trial court was correct in a ruling of law on which its order granting a new trial is based; defendant has here presented questions which fairly challenge the propriety of the order, and we would not be warranted in disregarding them by simply reiterating the principle that a reviewing court should not interfere with the discretion of the trial judge.” In the instant case the trial court’s granting of a new trial was based upon a finding that the forms of verdict submitted to the jury were improper. It therefore should be our duty to examine the propriety of this finding in order to determine the limits which were self-imposed upon the discretion of the trial court.

Upon thorough examination of the record before us I am unable to find that Defendant made any objection to the forms of verdict at the conference on instructions or at any time prior to his post-trial motion. It is well settled law that a party cannot complain of errors which he has committed, invited or induced the court to make or to which he has consented. Meyer v. Polivat, 13 Ill App2d 491, 142 NE2d 747; Waukegan v. Stanczak, 6 Ill2d 594, 129 NE2d 751; Johnson v. Luhman, 333 Ill App 418, 78 NE2d 107. If a party wishes to object to the forms of verdict, he should do so at the conference to settle jury instructions and point out to the trial court where the forms of verdict are defective and prejudicial to his rights. McCormick v. Hahn, 30 Ill App2d 311, 174 NE2d 206; Pruitt v. Motor Cargo Inc., 30 Ill App2d 222, 173 NE2d 851. Defendant’s failure to object to the forms at the proper time as well as his later failure to show that he was in fact prejudiced compels me in the instant case to find that the trial court’s finding was erroneous and Defendant’s motion for a new trial should have been denied.

The question of the effect of the verdict form is the only question considered by the majority opinion. Since, in my opinion, the trial court was in error in its ruling on this point, it should next be the duty of this court to examine the record for other evidence of prejudicial error committed in the trial court, including the matters assigned as error by way of cross appeal, to determine whether the ruling of the trial court can be supported on grounds other than those stated.


author: ALLOY, J. STOUDER, J.,

text:
    Frank M. Pierce, d/b/a Pierce Boat Service, Plaintiff-Appellee, v. Standard Accident Insurance Company, a Corporation, Defendant-Appellant.
    Gen. No. 11,875.
    Second District.
    May 4, 1966.
    Rehearing denied June 8,1966.

      Baker, McKenzie & Hightower, of Chicago, for appellant.
    Snyder, Clarke, Dalziel, Holmquist & Johnson, of Waukegan, for appellee.
   ALLOY, J.

This is an appeal from a judgment entered in a declaratory judgment action finding that defendant Standard Accident Insurance Company must defend plaintiff Frank M. Pierce, d/b/a Pierce Boat Service and also pay any judgment entered against him in a pending lawsuit arising from the theft of a boat, trailer and motor from the yard of the business establishment operated by plaintiff, Frank M. Pierce. On appeal in this court, defendant complains that the occurrence (involving the theft of a trailer which was being repaired by plaintiff) was not covered by the policy of insurance, on the basis that (1) it involved the theft of a trailer licensed for highway use and of property, while unattended, on that trailer being items specifically excluded from coverage by the policy, and, (2) that plaintiff is barred from bringing his suit because he failed to comply with policy provisions requiring commencement of any action on the policy within 12 months from the inception of the loss.

The facts in the record disclose that plaintiff Frank M. Pierce was in the business of selling and servicing boats and boat supplies under the name of Pierce Boat Service. Before plaintiff made application for a commercial endorsement on a fire insurance policy, an agent of the company had made a preliminary investigation of the premises and of the business and had checked the stock, the locks on the doors, the premises outside of the building, including the property lines, and noted that both boats and trailers were outside of the building. At the time of the examination, there were approximately 6 or 8 trailers, most of them with boats on them, and approximately 25 boats on the premises outside of the building itself. The investigator made no comment with reference to the boats or trailers outside the building on the premises but stated that he would approve the policy and would issue it. The policy was issued to plaintiff which consisted of a Commercial Property non-reporting endorsement on the Standard fire and extended coverage insurance policy issued to plaintiff.

On July 28, 1959, one Richard Burt delivered to plaintiff a boat, motor and trailer owned by Burt so that plaintiff could make certain repairs on the boat which was 17 feet long. Some work remained to be done on the boat on said date and plaintiff closed his shop at 10:30 p. m. At that time the trailer with the boat and motor on it was parked outside of the building on the insured premises. After that time no one remained on the premises to watch the boat. During the night, as shown by the record, the boat and trailer were stolen and, apparently, had been hooked onto an automobile by the thieves who drove the entire trailer and boat away. Neither trailer nor boat were recovered thereafter.

Plaintiff filed his claim for loss by theft with the defendant company. Such claim was refused by defendant on September 15, 1959, on the ground that the loss was not within the terms of the policy. On January 21, 1960, Richard Burt, the owner of the boat filed a suit against plaintiff for damages, which action is still pending and undisposed of in the Circuit Court of Lake County, Illinois. Thereafter plaintiff requested that defendant defend the suit brought against him under the terms of the policy of insurance, but defendant refused to defend on the ground that plaintiff was not covered by the policy. On January 24, 1961, plaintiff filed an action for declaratory judgment against defendant and as a result of such action the trial court found that under its policy the Standard Accident Insurance Company was obligated to defend the suit brought against plaintiff by the owner of the boat, and trailer, and also to pay any judgment assessed against Pierce in that suit within the limits of the policy.

The portions of the policy with which we are principally concerned provide under a section relating to exclusions and limitations:

“This policy does not cover: 3. Automobiles, motor trucks, trailers, and similar vehicles licensed for highway use or held for sale . . .
“C. (Peril) — This policy does not insure against any loss caused by or resulting from:
“8. Theft (including attempt thereat) of property while unattended in or on any motor vehicle or trailer, unless contained in a fully enclosed and securely locked body or compartment of such vehicle and theft results from forcible entry, evidenced by visible marks, into the body or compartment but this exclusion shall not apply to property in the custody of carriers or bailees for hire

Also in lines 157-161 of the Standard Fire Policy there is the following provision:

“No suit or action on this policy for recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within 12 months next after inception of the loss.”

It is noted that the policy under consideration specifically covers “all risks of direct physical loss of or to the property covered.” The property covered was described as “stock of goods, wares and merchandise of every description, consisting principally of BOAT AND MARINE SUPPLIES.” It expressly included property of others within the description which was left with the insured for storage or repairs. It is apparent that the exclusionary clauses were designed to cover items taken from vehicles, and not the taking of the entire vehicle and its contents. It can hardly be rationalized that the boat involved, which was 17 feet long with its motor and trailer, should be in a “fully enclosed and securely locked body or compartment of such vehicle.” Also, for the theft to fall within the exclusion it had to result from “forcible entry evidenced by visible marks, into the body or compartment.” The trailer upon which the boat and motor rested had neither a body nor a compartment. There could hardly be visible marks on a nonexistent body or compartment. It was a typical trailer of the kind seen by the investigator on plaintiff’s premises. The investigation by defendant prior to the writing of the policy was made for the purpose of affording coverage to plaintiff’s business and property of the type involved in the cause before us was located on the premises of the insured.

In Sally Chain Stores, Inc. v. Ace Bonded Carriers, Inc., 307 Ill App 644, 30 NE2d 966, there was an exclusionary clause which was similar to the one now before this court. In that case, the delivery vehicle was stolen with the packages in it. The vehicle was later recovered but the packages were missing. The court in that case indicated (at page 651) :

“The provision in question was not intended to apply to a case where the thief drove away with an automobile and its contents, but it was intended to apply to a case where a thief took a package or packages from an automobile or truck while it was standing unattended at a place of delivery and where the automobile or truck was not ‘equipped with a fully enclosed body, all windows and doors of which shall have been securely locked at the time of such loss and there be visible evidence of violent or forcible entry’. . .
“Policies of insurance are to be liberally construed in favor of the insured, and where there is any ambiguity in the policy the rule is that all provisions, conditions or exceptions which in any way tend to limit or defeat liability thereunder should be construed most favorably to the insured . . .
“Certainly it cannot be reasonably argued that the provision in question clearly supports cross-defendant’s interpretation of it. If cross-defendant had intended that the policy should not cover a case like the instant one it would have been an easy matter for it to insert a provision that would have plainly covered the type of theft present in the instant case.”

The defendant contends that the Sally case should be rejected as a precedent for the reason that in such case the theft excluded was taking of a package or packages “from” an unattended vehicle. Defendant contends that the language of the policy in the instant case using the words “in or on” creates a different situation so far as liability is concerned. We see no significant distinction in the use of such language so far as ultimate liability on the policy is concerned. Similarly, in the case of Universal Coffee Co. v. American Ins. Co., 5 Ill App2d 319, 125 NE2d 643, which is relied upon by defendant, the policy did not offer coverage for a theft and exclude coverage when taken “from” or “in or on” any vehicle, but in that case simply insured against theft resulting from violent forcible entry into vehicles equipped with bodies of entirely closed construction provided all the doors were locked.

The courts of this State have repeatedly held that where there is any ambiguity in a policy of insurance or questions as to appropriate construction, the policies are to be liberally construed in favor of the insured. The rule is that all provisions, conditions or exceptions which in any way tend to limit or defeat liability thereunder should be construed most favorably to the insured (Sally Chain Stores, Inc. v. Ace Bonded Carriers, Inc., 307 Ill App 644, 30 NE2d 966 at page 651; Ziolkowski v. Continental Cas. Co., 365 Ill 594, 7 NE2d 451). It is apparent in the case before us that the exclusionary clause relied upon by defendant does not specifically provide for the occurrence which actually happened. The policy was designed to cover the property of plaintiff and excluded loss only to property taken by theft while unattended on a trailer unless such property was in a fully enclosed and securely locked body or compartment of the trailer and unless the theft resulted from forcible entry evidenced by visible marks into the body or compartment of the vehicle. There was no breaking into the trailer which would be evidenced by visible marks. It is obvious that both the insured and the insurer intended to cover the 17-foot boat with no requirement that this be enclosed in a securely locked body or compartment.

The circumstances of the issuance of the policy and the object and purpose of the contract are significant and should be considered in determining whether there was coverage. The policy in the case before us was issued to cover the business operation of plaintiff and the construction sought for by defendant would have completely nullified that objective. As stated in Grand Lodge Knights of Pythias v. Fidelity & Deposit Co. of Maryland, 223 Ill App 516, at page 520:

“In construing any instrument, the purpose for which it is made should be kept in mind. Contracts of guaranty insurance are made for the purpose of furnishing indemnity to the assured and should be liberally construed for the accomplishment of that purpose. American Surety Co. of New York v. Pauly, 170 US 133.
“In construing a policy of insurance, it is the duty of the court to consider the instrument as a whole and to ascertain, if possible, the intention of the parties from the written words used by them, taking into consideration the situation of the parties, the nature of the subject matter with which they are dealing and the purpose sought to be accomplished. White v. Greenwood, 40 Cal App 113, 180 Pac 45; Raleigh Lumber Co. v. Wilson, 69 W Va 598; Hunter v. Golf Production Co. (Tex Civ App), 220 SW 163; Dick v. Goldberg, 295 Ill 86.
“In construing an insurance policy, if there is any ambiguity and the language found in the policy is that of the insurer and not of the insured, it should be favorably construed on behalf of the insured so as not to defeat a recovery in favor of the insured. Wilkinson v. Aetna Life Ins. Co., 240 Ill 205; Clark & Co. v. Fidelity & Casualty Co. of New York, 220 Ill App 576.”

As further stated in Feigenbaum v. Aetna Casualty & Surety Co., 240 Ill App 502, at 507, it is well settled that policies of insurance should be liberally construed in favor of the insured so as not to defeat, without plain necessity, the insured’s claim for indemnity which, in taking the insurance, it was his object to secure. In the instant case, plaintiff was entitled to the protection he sought when he purchased the insurance which included protection against the type of loss involved. This was obviously intended by the parties. This fundamental consideration overrides any narrow or technical interpretation of clauses which might operate to defeat such coverage.

The second basic question before us is whether the action instituted by plaintiff was brought within the proper time under the terms of the policy. The Standard Fire Insurance Policy contained a clause to the effect that suit must be commenced within “12 months next after inception of the loss.” This is a typical provision found in such policies and relates to damage claims normally covered by such Standard policies, such as fire or windstorm damage where the date of inception of the loss could easily be determined and the 12-month period could be calculated readily. An entirely different situation is involved in determining “the inception of the loss” under the facts in the instant case. The boat which was stolen was the property of a Mr. Burt and did not belong to the plaintiff. If Burt had not sued the plaintiff for loss of the boat, then plaintiff would have no loss of any kind. While it is debatable whether the provision referred to actually limits the time for filing suit on the commercial endorsement portion of the policy, assuming that the 12-month clause is applicable, it is clear that the provisions of the policy make it one of indemnity rather than liability. As stated in United States Fidelity & Guaranty Co. v. Maryland Cas. Co., 182 Ill App 438, at 445:

“It may be remarked that the employer’s liability policy here involved is a contract of indemnity as distinguished from a contract which insures directly against liability. The policy indemnifies the coal company ‘against loss from the liability imposed by law,’ etc., and condition ‘F’ of the policy provides that no action shall lie against the insurer to recover for any loss under the policy, unless it shall be brought by the assured for loss actually sustained and paid in money by the assured in satisfaction of a judgment after trial of the issue.
“In Poe v. Philadelphia Cas. Co., 118 Md 347, it was said by the Court of Appeals of Maryland: ‘In tracing the history of these policies, it will be found the earlier ones were so worded as to insure employers against liability incurred to their employes for death or injuries resulting from the employer’s negligence; and the courts humanely and rationally held that liability was fixed by the rendition of a final judgment, and that the casualty companies were liable on their contract, though the employer had not actually discharged his liability by payment.’ ”

To the same effect is Illinois Tunnel Co. for Use of Farrell v. General Acc., Fire & Life Ins. Co., 219 Ill App 251. It is noted that in the instant case the insuring clause which would be applicable to the theft of the boat covers plaintiff “to the extent that the insured shall be liable by law for loss thereto or shall prior to the loss have specifically assumed liability therefor . . .” Since plaintiff is the “insured” the only manner in which he could become liable for the loss of the other property would be for a judgment to be rendered against him. No judgment has as yet been rendered against him because the action by Burt as against the plaintiff is still pending and not disposed of. Nor has he specifically assumed liability for the theft. It is, therefore, apparent that the 12-month period would not have commenced at the date of the theft and that the declaratory judgment action was properly brought within the time specified in the policy.

No question is raised as to the portion of the order of the Trial Court which directs that the defendant undertake the defense of the action against Pierce. Since this question was not raised on appeal it is deemed to be waived. The determination of the Trial Court that the defendant Standard Accident Insurance Company is obligated to pay any judgment assessed as against plaintiff within the policy limits was proper and the judgment of such Court should be affirmed.

We must, therefore, conclude that the judgment of the Circuit Court of Lake County was proper and should be affirmed.

Affirmed.

CORYN, P. J., concurs.

STOUDER, J.,

dissenting.

Dissenting Opinion

I do not agree with the majority of the court. In my opinion the judgment of the Circuit Court should be reversed.

In the first place neither the opinion of the court nor the brief of Appellee suggests any theory or offers any reason for disregarding the provision of the policy excluding from coverage, “automobiles, motor trucks, trailers, and similar vehicles licensed for highway use or held for sale . . . .” This provision excludes coverage with respect to any hazard, not merely theft. Accordingly, I find no basis for Appellant’s obligation for loss of the trailer since it was admittedly licensed for highway use.

In the second place I believe that the theft which occurred was excluded by the clear and unambiguous terms of the exclusionary provision. It has often been said that contracts of insurance are like other contracts and the intention of the parties is to be sought from the plain meaning of the words employed. It is only when the language is vague, uncertain or ambiguous that resort to other rules of construction such as that of liberality in favor of the insured or of interpretations favoring coverage rather than exclusion from coverage is appropriate. In Universal Coffee Co., Inc. v. American Ins. Co., 5 Ill App2d 319, 125 NE2d 643, the court reached an opposite result from that in Sally Chain Stores, Inc. v. Ace Bond Carriers, Inc., 307 Ill App 644, 30 NE2d 966, although each case involved the theft of a delivery vehicle and its insured contents. From an analysis of the foregoing cases it can only be concluded that it is the difference in the language employed in the policy which accounts for the differences in result. In Sally Chain Stores the court concluded that the theft of the contents did not take place “from” the vehicle. Thus “from” means removal of the property at the time of the theft while the phrase “while in or on,” as used in the instant case, means location at the time of the theft.

Although I might agree that enclosure of the boat and motor “while in or on a trailer” might be impractical it certainly is not impossible as urged by Appellee. However, in my opinion, this fact is immaterial since I know of no requirement that each condition be applicable to all circumstances and if not so applicable such provision is thereby rendered ambiguous. The boat and motor could either have been removed from the trailer or the boatyard could have been attended under which conditions the property would have been covered.


author: MR. PRESIDING JUSTICE MORAN

text:
    Edward J. Loewenthal, et al., Plaintiffs-Appellants, v. The City of Highland Park, Illinois, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 65-92.
    Second District.
    May 4, 1966.
    Rehearing denied June 9, 1966.

      Sonnenschein, Levinson, Carlin, Nath & Rosenthal, of Chicago, and Hall, Meyer, Fisher, Van Deusen, Holmberg & Snook, of Waukegan, for appellants.

      Thomas H. Compere, Corporation Counsel, of Highland Park (Russell Engber, Assistant Corporation Counsel, of counsel), for appellee.
   MR. PRESIDING JUSTICE MORAN

delivered the opinion of the court.

This appeal arises because of a conflict between the need of the City of Highland Park in Lake County, defendant-appellee, to reopen an access route to its lakefront and the desires of the property owners, plaintiffs-appellants, along that access route to remain in wooded seclusion.

The original plat of the City of Highland Park was recorded in 1869 and showed two access routes, namely Park Avenue and Ravine Place running to the Lake Michigan waterfront. Both roads met at the waterfront and split as they proceeded up the bluff to the main section of the city. In 1926, the city council changed the name of Ravine Place to Egandale Road and Egandale is the road now in controversy. Prior to 1933 Egandale Road was used for pedestrian and vehicular traffic, but upon the completion of the paving of Park Avenue in 1933, Egandale Road was barricaded to traffic at the top of the bluff. Even though the road has been closed to vehicular traffic the city and utility company have maintained water mains, electrical cables and a sanitary sewer within the right-of-way of Egandale Road. Subsequent to 1933, one of the plaintiffs, a Mr. Weinress, planted certain shrubs inside the right-of-way and he has maintained them in the sense that they have been pruned and thinned in an apparent effort to retard soil erosion.

As a result of increased traffic to and from the lakefront, the corporate authorities of the city determined to reopen and pave Egandale Road. Nearby property owners did not view this as an improvement and brought this action to restrain the city’s plans.

The trial court issued a temporary injunction to keep the status quo and referred the matter to a master-in-chancery to take proofs. Subsequently, the master-in-chancery found the issues in favor of the city and the trial court entered a judgment order confirming his decision and dismissing the cause. The aggrieved property owners raise two issues on appeal; first, that the city has abandoned the right-of-way of Egandale Eoad, and secondly, that the city’s proposed improvement, if that it be, is not in accordance with city ordinances covering road construction.

It is a long standing rule in this state that mere nonuse by a municipality does not constitute an abandonment of a right-of-way. Village of Lee v. Harris, 206 Ill 428, 437, 438 (1903). As the Supreme Court said in Zempel v. Butler, 17 Ill2d 434, 439, 161 NE2d 818 (1959):

“There is a salutary reason why estoppel against a municipality should be used sparingly and only where the intent not to accept is evident. Streets are dedicated for the use of the public and the public’s right to use them should not be lightly treated.”

The only exception to this rule is where the non-use is of long standing and in reliance upon the nonuse, adjacent owners have made improvements of such a lasting and valuable character that to permit the public to assert the right to repossess itself of the road would entail great pecuniary loss and sacrifice upon the person making the improvements. City of DeKalb v. Luney, 193 Ill 185, 61 NE 1036 (1901). In the Zempel case the property owner had built a driveway, basketball courts and planted shrubs on the property in question and in that instance it was held that he had not made improvements of such a nature as to require an estoppel. In the case at bar, the most that can be said for the plaintiffs is that they have planted certain shrubs. They allege that they have relied upon the nonuse by the city. On the other hand, all of the plaintiffs purchased their property after the recording of the original plat and they are presumed to know the existence of Egandale Road. They can hardly argue that they relied only upon the facts which helped them and ignored those facts harmful to their position.

We note in this connection that in reality there has been a user of the property by way of various utilities. That use has been of a continuous and permanent nature.

We conclude, therefore, as to the first point raised by the plaintiffs that the trial court was correct. There was a user and there has been no abandonment. Egandale Road remains as a public road within the city.

We are unable to clearly understand the plaintiffs’ second point. The city proposes to install a twelve-foot pavement on Egandale Road. The plaintiffs complain that paving the road will damage their property; that the twelve-foot pavement does not comply with the city ordinances regarding road improvements; and, that the city is bound to install a wider and more substantial pavement. If a twelve-foot paved road would damage the plaintiffs’ property, it is hard to understand how a wider paved road would benefit it.

Regardless, the proposed improvement was initiated by the city council on June 8, 1959, when a motion was adopted to proceed with the resurfacing of Egandale Road at a cost of $2,500. The motion refers to a resurfacing and the cost of $2,500 makes it obvious that this was merely a maintenance job and not new construction. The street improvement ordinance of the city adopted in 1955 covers “roads created after the effective date of this Ordinance.” It is apparent from a reading of the ordinance that it was not intended to cover all of the streets and roads in the city but only those newly constructed after the effective date of the ordinance. If this were not the case, then the city would have to tear up all existing streets and bring them to the new standard. In addition, the city could not maintain any existing streets since most of them would not meet the standards of the new ordinance. The record shows that since the effective date of the road construction ordinance in 1955, the city has continuously maintained approximately 35 miles of streets which do not meet the standards of the improvement ordinance. We cannot believe that in adopting the improvement ordinance, the city intended to bar itself from street maintenance.

We have already found that Egandale Road is an existing street within the City of Highland Park. It has various utilities under current and continuous use and it has not been abandoned as a roadway by the corporate authorities. Therefore, the proposed work is merely maintenance and not construction. Under the city ordinance if it is maintenance then it need not meet the standards of the improvement ordinance of 1955 and the city in failing to meet these standards has not failed to comply with its own ordinances.

Viewing the record as a whole, we cannot say that the master and trial judge were incorrect in viewing the city’s proposal as simply the maintenance of an existing street. The street in question has been in existence since 1869. It exists today. The city merely proposes to maintain it. We conclude that the city has every right to do so and the judgment is therefore affirmed.

Judgment affirmed.

DAVIS and ABRAHAMSON, JJ., concur.