Liberty Nat. Bank of Chicago v. Zimmerman, Gen. No. 44217.

• Decision Date: 30 December 1947
• Docket Number: Gen. No. 44217.
• Citation: 333 Ill.App. 94,77 N.E.2d 49
• Parties: LIBERTY NAT. BANK OF CHICAGO v. ZIMMERMAN.
• Court: United States Appellate Court of Illinois

333 Ill.App. 94

77 N.E.2d 49

LIBERTY NAT. BANK OF CHICAGO

v.ZIMMERMAN.

Gen. No. 44217.

Appellate Court of Illinois, First District, Second Division.

Dec. 30, 1947.

Appeal from Municipal Court of Chicago, Cook County; Charles S. Dougherty, Judge.

Forcible entry and detainer suit by the Liberty National Bank of Chicago, trustee, against W. Zimmerman to recover possession of an apartment.Judgment for defendant and plaintiff appeals.

Affirmed.

Max E. Beegun, of Chicago, for appellant.

Bernard S. Neistein and Edwin A. Halligan, both of Chicago (Edwin A. Halligan and Martin K. Irwin, both of Chicago, of counsel), for appellee.

SCANLAN, Justice.

A forcible entry and detainer suit in which plaintiff, trustee, alleged that it was entitled to the possession of four rooms, ApartmentNo. 3, 3701 West Arthington street, Chicago, and that defendant unlawfully withheld possession thereof from it.The case was tried by the court without a jury, defendant was found not guilty, and judgment was entered in his favor.Plaintiff appeals.

The facts in the case were not disputed.It was stipulated that plaintiff was the landlord of the premises commonly known as 3701-27 West Arthington street, Chicago, Illinois, and that defendant, W. Zimmerman, and his wife occupied Apartment Three on the third floor of the building located at 3703 West Arthington street, Chicago, Illinois, and that upon the expiration of the lease in question defendant continued to remain in possession of the apartment and paid rent therefor, which rent was accepted by plaintiff.The evidence shows that defendant permitted his daughter and son-in-law, Mr. and Mrs. Joseph Brenner, and their ten months old child to move into defendant's apartment and occupy the premises, and that they occupied said premises after defendant had been served with notices by plaintiff; that the Brenner family gave up their own apartment in order to move into and occupy the premises with defendant, over the objection of plaintiff's duly authorized agent, and that plaintiff has refused to accept rent from defendant since the additional occupancy of defendant's apartment.Defendant testified that his daughter and son-in-law lived with him in said apartment in 1944 and that they now moved into said apartment because his wife moved to Colorado for her health and that defendant requested his daughter and son-in-law to move in with him and prepare his meals and keep the house for him.The trial judge stated in the report of proceedings that plaintiff claimed that the Brenners were a separate family unit even though related by blood to defendant.To quote from the report of proceedings: ‘10.The Court found that there was no issue of fact involved herein and that the only question before the Court was one of law, namely, whether Mr. and Mrs. Joseph Brenner and their child constituted part of defendant's family.The Court held that Mr. and Mrs. Brenner and their child had a right to move in with the defendant, W. Zimmerman, and the Court, therefore, held for the defendant.’(Italics ours.)The lease between the parties was introduced in evidence.

Although it appears from the report of proceedings that the only question the trial court was called upon to determine was whether, under the law, Mr. and Mrs. Joseph Brenner and their child constituted part of defendant's family, plaintiff, in this court, takes the position that under the terms of the lease under which defendant was holding over ‘the question whether the Brenner family is a part of the Zimmerman family is immaterial.’The lease in question was dated March 1, 1944.Robt.Shell-B.Rootberg was the lessor and defendant was the lessee.It provides, inter alia, that the lessor ‘hereby leases to Lessee for a private dwelling, the premises known and described as follows to-wit: ApartmentNo. ___ on the 3rd floor of the building located at 3701 Arthington St. * * * for the term commencing on the 1st day of May, 1944, and expiring on the 30th day of April, 1945.’Plaintiff now contends that ‘in view of the provision of the lease that ‘said premises shall not be occupied in whole or in part by any person other than lessee’, the trial court committed error in holding, as a matter of law, that the defendant's son-in-law, married daughter, and grandchild could reside in the premises over the objection of the plaintiff as landlord.'In support of this contention plaintiff relies upon provision 3 in the lease, which reads as follows: ‘3.-Said premises shall not be occupied in whole or in part by any person other than Lessee, and Lessee shall not sublet the same or any part thereof, nor assign this lease, nor permit to take place by any act or default of himself or any person, any transfer by operation of Law of Lessee's interest created hereby; nor offer for lease or sublease the said premises, nor any portion thereof, without, in each case, the consent in writing of Lessor.’

If plaintiff's present contention is sound it would be a violation of the terms of the lease for defendant to permit his wife to occupy the premises upon her return from Colorado, although it was stipulated upon the trial that defendant and his wife occupied the apartment after the execution of the lease.In other words, plaintiff takes the position that under the said provision of the lease no person other than defendant Zimmerman had the right to occupy any part of the four-room apartment.We note, however, that the lease also provides that the premises were leased to defendant‘ for a private dwelling.’Bouvier's Law Dictionary, Rawle's Third Revision, Vol. 1, p. 962, defines a ‘dwelling-house’ as follows: ‘A house usually occupied by the person there residing, and his family.’A lease ‘shall be most strongly construed against the grantor, if there be any doubt or uncertainty as to the meaning of the grant.’Goldberg v. Pearl, 306 Ill. 436, 440, 138 N.E. 141, 142.The instant contention is an afterthought that does not appeal to our sense of justice.In any event, plaintiff tried the case upon the theory that there was only one question before the trial court, viz., ‘whether Mr. and Mrs. Joseph Brenner and their child constituted part of defendant's family’ as a matter of law, and it will not be allowed to change its position in this court.

The next and last contention of plaintiff is that the trial court committed error in holding that defendant's married daughter, her husband and infant child were a part of defendant's ‘family.’In support of this contention plaintiff cites several cases that have no application to the instant one upon the facts.

Rock Island Bank & Tr. Co. v. Lamont, 361 Ill. 432, 198 N.E. 430, involved the question as to what constitutes a family within the meaning of the Homestead Act.The court, after citing certain provisions of the Homestead Act, holds that ‘ a family within the meaning of the Homestead Act is not alone a collection of persons living together, but there must be an obligation, either legal or moral, upon someone who thus occupies the position of head of the house to support the others or some of them, and on the part of such others a corresponding state of dependence.’(page 435 of 361 Ill.,page 431 of 198 N.E.Italics ours.)Logue v. Von Almen, 379 Ill. 208, 40 N.E.2d 73, 140 A.L.R. 251, also cited, involved an alleged homestead estate.In Scott v. Greene, 242 Ill.App. 405, also cited by plaintiff, the court held that the adult daughter of the owner of an automobile, who, although living with her parents, was entirely self-supporting and paid for her board and all the expenses incident to her use of the car, was not a member of the owner's family within the rule rendering the head of a family who keeps an automobile for the use of his family liable for the negligence of members of the family while using it for a family purpose.While that case is not applicable to the instant one upon the facts, we may state that the ‘family purpose’ doctrine is no longer the law in Illinois.Anderson v. Byrnes, 344 Ill. 240, 176 N.E. 374.

In Policemen's Benev. Ass'n. v. Hill, 257 Ill.App. 138, it appeared that Edward Strum was a member of the Policemen's Benevolent Association of Chicago and received a benefit certificate of membership in which his wife was named as beneficiary for the sum of $2,000; that subsequently Mrs. Strum died and upon application of Strum a new certificate was issued in which Etta A. Hill, his deceased wife's sister, was named as beneficiary; that later Strum died and as there were various claimants for the proceeds of the certificate the Association filed a bill of interpleader.Etta A. Hill and nine heirs, nieces and nephews of Strum, filed answers.The chancellor awarded the proceeds of the certificate to Etta A. Hill and one of the heirs appealed from the decree.The opinion of the Appellate court, written by the late Mr. Justice McSurely, states (pages 139, 140, 141 of 257 Ill.App.):

‘The question presented to the chancellor was whether or not Etta A. Hill, the beneficiary named in the certificate, was a member of the family of the deceased and entitled to the proceeds under the provision of the certificate which names as one of the objects of the association: ‘to establish a fund for the payment of death benefits to the families.’

‘Etta A. Hill testified that...