Sidebilder
PDF
ePub

reasons valid, notwithstanding the invalidity of Cook county. The act of 1871 provided of clause 82 of said section 1 as amended in 1919. Clause 82 of section 1 as amended is as follows:

"To control the location and regulate the use and construction of breweries, distilleries, livery, boarding or sale stables, wagon repair shops, blacksmith shops, foundries, machine shops, public garages, private garages and stables designed for the use of five or more vehicles, hangars, laundries, bathing beaches, brick yards, planing mills, flour mills, box factories, lead factories, steel factories, iron factories, ice plants, either for the manufacturing or storing of ice, factories or other manufacturing establishments using machinery emitting offensive or noxious fumes, odors, or noises, and storage warehouses, within the limits of the city or village; provided that this clause shall not be construed to require the removal of any of the above enumerated buildings fom any location which they may lawfully occupy at the time of the passage of any ordinance hereunder." Laws of 1919, p. 285.

or

in one section for the salaries of judges of the circuit and superior courts of Cook county and the state's attorney of that county. It was in that case held that, where there is an attempted repeal of an act by a statute which is void, the previous act remains in force. It was said of the acts under consideration:

"If the amendatory act is valid in any of its provisions, it cannot be said that some particular provision of the act of 1871 is still in force. The provisions for the salaries of the judges and state's attorney were contained in a single section of the act of 1871, and, if this amendatory act is valid with the exception of section 2, there is no act in force under which the state's attorney is entitled to any salary whatever from the county of Cook."

In that case the amendatory act was valid in part and amended the section to the extent covered by its valid portion. The existence of the valid portion of the amendatory This clause, prior to the amendment of act operating on a single section of the origi1919, was as follows:

"To direct the location and regulate the use and construction of breweries, distilleries, livery, boarding or sale stables, blacksmith shops, foundries, machine shops, garages, laundries and bathing beaches, within the limits of the city or village." Laws of 1911, p. 179.

Clause 82, as amended in 1919, was held unconstitutional and void on the ground that the proviso in it makes penal an act done by one person but imposes no penalty for the same act done under like circumstances by another. It was also held that, the proviso being void, the entire clause was void because it cannot be assumed that the Legislature would have passed the clause without the proviso. People v. Kaul, 302 Ill. 317, 134 N. E. 740. The appellants contend that the effect of the Kaul Case is to leave in force clause 82 as amended in 1911, while appellees contend that the effect of the invalidity of this clause was not to revive clause 82 as it existed under the 1911 act, but to leave section 1 of the act without a clause 82, and therefore without any provision authorizing the regulation of the erection of garages. In support of their contention they cite Cook County v. Healy, 222 Ill. 310, 78 N. E. 623, and People v. Fisher, 274 Ill. 116, 113 N. E. 47.

In Cook County v. Healy the statutes under consideration were the act of 1871 (Acts 1871-72, p. 454), concerning the salaries of judges and state's attorneys, and that of 1901 (Laws 1901, p. 207) amending it. The act of 1871 contained but two sections. The amendatory act of 1901 was in three sections. Section 2 thereof was held to be unconstitutional upon the ground of material alteration of the same between its passage and its signature by the Governor. This section provided for the salary of the state's attorney

nal act disposed of the original act, and substituted for it the valid portions of the amendatory act. That case is not on all fours with the case at bar. While clause 82 of section 1 is a clause of one section as it is written in the statute, yet it is evident that it is so written as a matter of convenience, to avoid repetition of the first sentence of section 1, designating city councils and presidents and boards of trustees of villages as the recipients of the power described in the various clauses. In the Healy Case, the one section of the original act was indivisible. The distinction between the situation in that case and that in this case seems clear.

Section 1 under consideration is by no means indivisible. The section contains 100 separate and distinct clauses, the amendment of any one of which may be accomplished without affecting other clauses. So far as clause 82 is concerned, the amendatory act of 1919 was in no part valid, for the reason that the proviso added to that clause caused the entire clause to fall. An amendment is a change. If there is nothing valid in the change, it cannot be said that a change has taken place. A fortiori, if there be no change, that which is sought to be changed remains as it was. The amendatory act of 1919 contained no repealing clause, and an unconstitutional statute does not repeal a former law or part of law by implication. People v. Fox, 294 Ill. 263, 128 N. E. 505; People v. Butler Street Foundry Co., 201 Ill. 236, 66 N. E. 349; 1 Lewis' Sutherland on Stat. Const. § 245. The rule laid down in People v. Fisher, supra, cited by the appellee, has to do with the effect of a statute revising the subject-matter of a former statute where it is intended as a substitute for it, and is not authority for the appellee's

(148 N.E.)

validity of the frontage consents. An opinion was rendered holding such consents sufficient, and the appellants immediately filed the bill in this case. The evidence shows due diligence on the part of the appellants.

contention that the effect of the unconstitu- uon counsel of the city of Chicago as to the tionality of clause 82, as amended in 1919, is to leave section 1 without a clause 82. We are of the opinion that the ineffectual attempt to amend clause 82 left that clause in force as it was enacted in 1911, and that the city of Chicago had authority to pass the ordinance assailed here.

But the appellee urges that, even though clause 82 as it existed prior to the amendment of 1919 be held valid, the ordinance in this case was not passed until 1922, and cannot be held to be valid. Under the view we have expressed concerning the existence of clause 82 as enacted in 1911, it is immaterial whether the ordinance in question was passed before or after the amendatory act of 1919. That act never having been in effect so far as that clause is concerned, clause 82, as enacted in 1911, was in effect, and under it the ordinance in question was authorized. It was error on the part of the chancellor, therefore, to hold this ordinance unconstitutional and void.

[5] It is contended by the appellee, on cross-errors assigned, that the appellants in this case were guilty of laches and so are estopped. A large portion of the brief of counsel is devoted to this proposition. The evidence in the record upon which this contention is based is practically undisputed. It shows that the appellee procured the building permit in question on November 19, 1923, and began building operations. He planned a building containing a number of automobile stalls or storage rooms for rent. Complaints were filed with the building commissioner against the construction of the garage. The work ceased. A meeting was arranged between the property owners and the appellee. A number of such owners met with the appellee. It was proposed that the property owners buy the appellee's property and pay him therefor the cost of the property plus 10 per cent. of such cost and the amount of expense to which he had been put in procuring materials and having work done on the garage up to that time. There was an agreement to this effect later entered into, though not reduced to writing. Although there is a conflict in the evidence as to the details of the negotiations, an understanding was reached between the parties looking to the purchase of this property by the property owners in the block. While these nego tiations were in progress, the contractors who were to build the garage placed a mechanic's lien on the property, thus preventing the clearing of the title, and eventually the agreement failed. Nothing further was done toward the building of the garage, however, until in September, 1924, when building operations were resumed. As soon as the work was recommenced the property owners again protested, and the work was stopped pending an opinion by the corpora

[6, 7] It is also contended by the appellee that the building commissioner, having issued the permit herein, is estopped to deny the validity of it, and is not entitled to a decree, and that, since he as a party complainant is not so entitled, none of the parties complainant are entitled to recover, for the reason that all parties who join in a suit must be entitled to recover or none can. Counsel for the appellee cite in support of this position the case of Girard v. Lehigh Stone Co., 280 Ill. 479, 117 N. E. 698. It is the rule, as stated in that case, that, if any one or more of the complainants in a suit in equity fail to maintain a case against the defendant, the remainder of the parties, in order to maintain their suit, must by leave of court amend their bill by striking out the names of such cocomplainants who have no cause of action. That rule presupposes parties complainant who have not the right to a decree. In this case, unless there be an estoppel against the building commissioner, it cannot be said that he is one not entitled to a decree. Other cases cited by the appellee as authority for the contention that the building commissioner is estopped are those where parties, acting on permission given by the city, have proceeded to the erection of an expensive building or other structure and the city has thereafter attempted to prevent its use. Such is not the case at bar, as action was taken as soon as the appellee started the construction of his building.

By his original answer the building commissioner disavowed any interest in the case and submitted himself to the jurisdiction of the court under whatever decree the court should enter. When, however, the appellee attacked the constitutionality of the ordinance a new issue arose, making the situations of the parties in the cause somewhat unusual. The building commissioner apparently felt it was his duty, as a party to the proceeding, to defend the legality of the ordinance involved. Under the ordinance the building commissioner had no authority to issue a building permit without the consents required by the ordinance. He appears in this cause only in his official capacity, as representing the city. The estoppel, if such existed, would be an estoppel against the city by reason of the action of its agent, the building commissioner. The permit was invalid and the commissioner had no authority whatever to issue it, and to hold that the actual parties in interest here could not in such a case recover because a cocomplainant without actual interest could be estopped

would be a far too technical application of the rule referred to in the Girard Case. Moreover, the city cannot be estopped by an act of its agent beyond the authority conferred upon him. Burton Co. v. City of Chicago, 236 Ill. 383, 86 N. E. 93, 15 Ann. Cas. 965. This contention cannot be sustained.

We are of the opinion that the findings of the chancellor on questions of fact and propositions of law other than the validity of the ordinance involved were correct, but that he erred in holding the ordinance invalid. For this error the decree is reversed, and the cause remanded, with directions to enter a decree granting the injunction as prayed. Reversed and remanded, with directions.

(317 III. 251)

KINNAN V. CHARLES B. HURST CO. et al. (No. 16263.)

(Supreme Court of Illinois. April 24, 1925.

Rehearing Denied June 5, 1925.)

1. Insurance 514-Liability indemnity policy held to provide only for reimbursement of actual payment of judgment.

Policy indemnifying assured against loss from liability for bodily injuries, with condition that no action should lie except for reimbursement of actual payment of judgment after trial on issues, provided only for reimbursement of money actually paid in satisfaction of judgment.

2. Insurance 5912-Employé has no right of action upon employer's liability indemnity policy.

Employé held not to have right of action on employer's policy of indemnity against loss from liability for bodily injuries.

3. Insurance ~388 (5)-Refusal of insurer to defend suit waiver of requirement of payment of judgment before recovery against former.

Where liability indemnity policy provided for reimbursement only of money actually paid in satisfaction of judgment, assured held to have cause of action for amount of judgment against it and costs before payment of same, where insurer refused to comply with provision requiring it to defend suit; such refusal constituting waiver of former provision.

4. Contracts 313(1)-On repudiation, other contracting party may sue for damages as for present breach.

ployé was entitled to have indebtedness of liability insurer to employer, arising from its failure to defend suit, applied to payment of his insurer and employé, but because of rights as judgment, not on basis of relation of employer's judgment creditor.

On Petition for Rehearing.

6. Pleading 403(5)-Omission of allegation from creditor's bill by employé against employer's insurer held supplied by answer.

In creditor's bill by injured employé against employer's insurer, after return of his execution against employer unsatisfied, omission of bill to allege breach by insurer of its contract to defend suit against employer held supplied by averments in insurer's answer that it notified employer that accident was not covered by policy, and that employer defended suit. 7. Appeal and error 835(2)-Omission of allegation not considered on rehearing, in view of assumption of parties as to state of record.

In creditor's bill by injured employé against employer's insurer, omission to allege breach by insurer of its contract to defend suit against employer cannot be raised, on petition for rehearing, where question of liability of insurer for refusing to defend was recognized by both sides as presented by record, was argued on that basis, and question was submitted without objection.

Error to Appellate Court, First District, on Appeal from Superior Court, Cook County; Denis E. Sullivan, Judge.

Suit by John Kinnan against the Charles B. Hurst Company and the Globe Indemnity Company of New York. From a judgment of the Appellate Court, First District, reversing a decree for plaintiff, he brings error. Judgment of Appellate Court reversed, and decree below affirmed.

See, also, 301 Ill. 597, 134 N. E. 72.

S. P. Douthart, Ossian Cameron, and Edward H. S. Martin, all of Chicago, for plaintiff in error.

Cassels, Potter & Bentley, of Chicago (Ralph F. Potter and Kenneth B. Hawkins, both of Chicago, of counsel), for defendant in error.

DUNN, J. The Appellate Court for the First District reversed a decree of the superior court of Cook county requiring the Globe Indemnity Company of New York to Where one party to contract repudiates its pay $5,966.59 to John Kinnan and awarding obligation and declares his intention no longer execution therefor. The cause was remandto be bound by it, other party may treat re-ed to the superior court, with directions to pudiation as wrongful putting of an end to con- dismiss the bill, and a writ of certiorari has tract and sue at once for damages as for pres-been allowed to Kinnan for a review of the ent breach.

record.

5. Creditors' suit 8 (4)-Employé held to The litigation had its origin in an accihave right to have insurer's debt to employer | dental injury which Kinnan received on Sepapplied to payment of judgment. tember 4, 1912, while engaged in the conWhere execution against employer on judg-struction of a silo for the Charles B. Hurst ment for injuries was returned unsatisfied, em- Company as a servant of that company, for

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(148 N.E.)

which he brought suit and recovered a judgment against that company on April 12, 1919, for $12,625 and costs. The Hurst Company was insolvent. Executions issued against it were returned not satisfied, and no part of the judgment has been paid. The Globe Indemnity Company had issued a liability policy to the Hurst Company which was in force September 4, 1912, and Kinnan filed his creditor's bill setting forth the foregoing facts, alleging that upon the recovery of his judgment against the Hurst Company, the Globe Indemnity Company, by reason of its policy, became liable to the Hurst Company for $5,000 and interest from the date of the judgment, and praying, among other things, that the debt so due from the Globe Indemnity Company to the Hurst Company be applied to the payment of the judgment against the Hurst Company. The defendant in error, though notified of the accident and the suit, denied that the accident was covered by its policy, and refused and failed to defend the suit.

[ocr errors]

The question on which the case turns is the liability imposed by the policy on the defendant in error, the Globe Indemnity Company. The contention of the defendant in error, as stated in its brief, is that there can be no recovery against it because it never became indebted to the Hurst Company, the assured; that the policy "was an indemnity contract against loss or damage from liability, and, until the assured paid the loss or in some manner became damnified, no liability under the terms of the policy attached, and that the policy was solely for the benefit of the assured and was not for the benefit of any third party." The following are the provisions of the policy material to this controversy:

"Globe Indemnity Company (herein called the company) in consideration of the premium herein provided and of the statements forming a part hereof, does hereby agree:

"I. To indemnify the assured against loss from the liability imposed by law upon the assured for damages on account of bodily injuries, including death at any time resulting therefrom, accidentally suffered or alleged to have been suffered during the policy period defined in statement 6, by any employé or employés of the assured, while at the places designated in statement 4, by reason of the work therein described.

"II. To make such investigation of all accidents reported to the company, and to which this policy applies, and to undertake such negotiations for settlement or to make such settlements of any claims for damages made against the assured, as the company may deem advisable, and, in the event that suit is brought against the assured, to defend such suit, even if groundless, in the name and on behalf of the assured, unless or until the company shall elect

to effect settlement thereof.

"III. To pay all expense of the company's investigation and adjustment of claim, all costs taxed against the assured in any legal proceeding defended by the company, and all inter

test accruing after entry of judgment upon such part thereof as shall not be in excess of the company's limit of liability as appears in this policy, and

"IV. To pay for such immediate surgical relief as shall be imperative at the time of the accident. The foregoing agreements are subject to the following conditions:

"A. The company's liability under this policy, whether it be issued in the name of one assured or of more than one assured, shall be limited to the sum of $5,000 on account of bodily injuries to or the death of one employé, and subject to the same limit for each employé the company's liability shall be limited to the sum of $10,000 on account of bodily injuries to or the death of more than one employé as the result of one accident, but in addition to these limits the company will pay all sums for which the company may be liable under insuring agreements III and

IV.

The

"G. The assured, upon the occurrence of an accident, shall give immediate written notice thereof, with the fullest information obtainable at the time, to the home office of the company or to its duly authorized representative. assured shall give like notice with full particulars of any claim made on account of such accident. If any suit is brought against the assured to enforce such claim, the assured shall immediately forward to the home office of the company every summons or other process that may be served upon the assured.

"H. The assured shall not voluntarily assume any liability, nor incur any expense other than for immediate surgical relief, nor settle any claim, except at the assured's own cost. The for settlement, nor in any legal proceeding, but, assured shall not interfere in any negotiation whenever requested by the company, the assured shall aid in securing information and evidence and the attendance of witnesses, and shall co-operate with the company, except in a pecuniary way, in all matters which the company may deem necessary in the defense of any suit or in the prosecution of any appeal.

"I. No action for the indemnity against loss provided for in insuring agreement I of this policy shall lie against the company, except for reimbursement of the amount of loss actually sustained and paid in money by the assured in full satisfaction of a judgment duly recovered against the assured after trial of the issue, nor unless brought within two years after such judgment shall have been paid. No action to recover under any other insuring agreement shall lie against the company unless brought within twelve months after the right of action accrues."

[1, 2] The agreement in paragraph I of the policy, "to indemnify the assured against loss from the liability imposed by law upon the assured for damages on account of bodily injuries," etc., together with the condition contained in subdivision I of paragraph IV of the policy, that "no action for the indemnity against loss provided for in insuring agreement I of this policy shall lie against the company, except for reimbursement of the amount of loss actually sustained and paid in money by the assured in full satisfaction of a judgment duly recovered against

the assured after trial of the issue," etc., [ company. There was a breach of the declearly provides only for the reimbursement fendant in error's undertakings in paragraph of money actually paid in satisfaction of a II. Suit was brought against the assured judgment recovered against the assured after for damages for bodily injuries alleged to the trial of the issue, in an action for, bodily have been accidentally suffered by an eminjuries alleged to have been accidentally suf- ployé of the assured, and this suit, even fered within the terms of the policy. Davi- though groundless, the defendant in error son v. Maryland Casualty Co., 197 Mass. 167, was bound to defend unless and until it 83 N. E. 407; Connolly v. Bolster, 187 Mass. chose to settle it. It did not do this, and 266, 72 N. E. 981; Cushman v. Carbondale thereupon the assured defended the suit, with Fuel Co., 122 Iowa, 656, 98 N. W. 509; Puget the result which has been stated. Sound Improvement Co. v. Frankfort Ins. Co., 52 Wash. 124, 100 P. 190; Coast Lumber Co. v. Ætna Life Ins. Co., 22 Idaho, 264, 125 P. 185; Frye v. Bath Gas & Electric Co., | 97 Me. 241, 54 A. 395, 59 L. R. A. 444, 94 Am. St. Rep. 500; Finley v. United States Casualty Co., 113 Tenn. 592, 83 S. W. 2, 3 Ann. Cas. 962; Stenbom v. Brown-Corliss Engine Co., 137 Wis. 564, 119 N. W. 308, 20 L. R. A. (N. S.) 956. The Hurst Company, the assured in the policy, could not maintain an action on this agreement until it had sustained a loss for which a judgment had been recovered and which it had paid. The plaintiff in error had no connection with the policy, which was not issued for his benefit, and could under no circumstances maintain an action on it. Connolly v. Bolster, supra; Cushman v. Carbondale Fuel Co., supra; Finley v. United States Casualty Co., supra; Stenbom v. Brown-Corliss Engine Co., supra. If, however, the Hurst Company had a cause of action which it could enforce against the defendant in error, whether upon this policy or for some other cause, the plaintiff in error had a right, in equity, to compel the application of the proceeds of such cause of action to the payment of his judgment against the Hurst Company.

[3] The policy, however, contained other agreements on the part of the defendant in error to which the condition of actual payment in satisfaction of a judgment did not apply. By paragraph II of the policy the defendant in error agreed "to make such investigation of all accidents reported to the company and to which this policy applies, and to undertake such negotiations for settlement or to make such settlements of any claims for damages made against the assured, as the company may deem advisable. and, in the event that suit is brought against the assured, to defend such suit, even if groundless, in the name and on behalf of the assured, unless or until the company shall elect to effect settlement thereof." Conditions H and I of paragraph IV prohibited the assured from voluntarily assuming any liability or incurring any expense other than for immediate surgical relief, or for settling any claim except at its own cost, or interfering in any negotiation for settlement or in any legal proceeding except to aid in securing information and evidence and the attendance of witnesses when requested by the

What was the effect of this breach of the contract by the defendant in error? It had agreed to indemnify the assured against loss for liability imposed by law upon the assured on account of bodily injuries actually received, only when payment had been actually made by the assured of a judgment recovered against it in an action defended by the defendant in error. The agreement did not extend to any other judgment, for the defendant in error expressly agreed to investigate all accidents reported to it, and, in case of suit brought, to defend it, even if groundless, unless and until the defendant in error should elect to effect a settlement, while at the same time the assured agreed not to settle any claim or interfere in any negotiation for settlement or legal proceeding. The foundation of the rights of the parties under the contract was the assumption by the defendant in error of the investigation of all accidents, the negotiation of all settlements, and the defense of all suits of the character mentioned in the policy, and the exclusion of the assured from all interference in any of these matters except to aid the defendant in error at its request. The refusal of the defendant in error to defend the suit of the plaintiff in error against the assured would have destroyed the foundation of the mutual obligation of the parties. The policy contemplated the payment of a judgment against the assured only in a case defended by the defendant in error, and its refusal to defend therefore deprived the former of its remedy under paragraph I and condition I of the policy, because such refusal prevented a compliance with the condition precedent of the payment of a judgment recovered by the assured after the trial of an action defended by the defendant in error. This repudiation of the fundamental obligation of the contract completely deprived the assured of its benefit and was a waiver of the performance by the assured of the conditions precedent to a recovery of the amount it would be entitled to if those conditions had been performed.

[4] Where one party to a contract repudiates its obligation and declares his intention no longer to be bound by it, the other party may, if he thinks proper, treat the repudiation as a wrongful putting of an end to the contract and bring an action at once, in which he may recover damages as for a present breach. Lake Shore & Michigan South

« ForrigeFortsett »