Scott v. Freeport Motor Cas. Co.

• Decision Date: 11 March 1942
• Docket Number: No. 26424.,26424.
• Citation: 379 Ill. 155,39 N.E.2d 999
• Parties: SCOTT et al. v. FREEPORT MOTOR CASUALTY CO.
• Court: Illinois Supreme Court

379 Ill. 155

39 N.E.2d 999

SCOTT et al.

v.FREEPORT MOTOR CASUALTY CO.

No. 26424.

Supreme Court of Illinois.

Jan. 20, 1942.

Rehearing Denied March 11, 1942.

Error to Appellate Court, Second District, on appeal from Circuti Court, Lee County; Harry E. Wheat, Judge.

Action by Mary Scott and another against the Freeport Motor Casualty Company of Feeport, Ill., to recover the amount of judgments procured by plaintiffs for injuries received in an automobile collision. To review a judgment of the Appellate Court, 310 Ill.App. 421, 34 N.E.2d 879, reversing order of circuit court granting new trial and entering judgment on verdict of jury in favor of the defendant, the plaintiffs bring error.

Reversed and remanded with directions.Franklin J. Stransky, of Savanna, and George Spitz, of DeKalb, for plaintiffs in error.

Burrell, Burrell & Snow, of Freeport, and Henry C. Warner, of Dixon (David M. Burrell, of Freeport, of counsel), for defendant in error.

SMITH, Justice.

Defendant in error is an insurance corporation, authorized to do business in the State of Illinois. It is engaged in the casualty insurance business. On November 27, 1935, it issued a liability policy to Bernard Eden, effective for the period of one year from that date. The policy covered an automobile belonging to Eden, and insured him against loss or liability for injuries to persons or property of others up to certain amounts limited by the policy. The premium was paid and the policy became in full force and effect.

On August 18, 1936, the automobile covered by the policy was involved in an accident in which plaintiffs in error, Mary Scott and Fred Scott, received rather serious personal injuries. Defendant in error was duly notified of the accident and the injuries resulting therefrom.

Thereafter, plaintiffs in error brought suit in the circuit court of Lee county against Eden to recover damages for the injurieswhich they sustained as a result of the accident. On December 31, 1938, judgments were entered in said suit in the sum of $5000 in favor of Mary Scott and $2500 in favor of Fred Scott. An execution was issued on the judgments. Said judgments have not been satisfied.

The policy contained a provision making the liability of defendant in error, under the policy, direct to any person entitled to recover from the insured, in the same manner, and to the same extent, that defendant in error was, under the policy, liable to the insured. It further provided, that such liability might be enforced by the person entitled to recover from the assured in an action against defendant in error, commenced any time after the rendition of final judgment in favor of the injured person against the assured.

On February 20, 1939, the judgments rendered, in favor of plaintiffs in error, and against Eden, not having been satisfied, plaintiffs in error brought this suit in the circuit court of Lee county against defendant in error to recover the amount of said judgments.

To the complaint filed by plaintiffs in error, an answer was filed by defendant in error, in which certain separate defenses were pleaded. The substance of these special defenses was, that Eden, the assured, at the time of the accident, was operating his automobile for the purpose of selling cattle and livestock in his capacity as a salesman, employed by another. It was further alleged in the special defenses, that after the issuance of the insurance policy, Eden was employed by another as salesman, and was so employed at the time of the accident. It was further alleged that this employment of the assured, in the capacity of a livestock salesman, invalidated the policy; that the policy, as issued, stated that Eden's occupation was that of farming; that it was provided in a special endorsement, which was a part of the policy, that it should be a condition of liability under the policy that the assured ‘shall engage in no occupation other than farming throughout the term for which this policy is issued. In the event the named assured, without the written consent of the company endorsed hereon, changes his occupation or place of residence, or if the herein described motor vehicle is used for any other purpose other than ordinary farming and/or pleasure purposes, or if the assured violates any condition of this insurance, or knowingly permits the violation of any condition, then this policy ceases automatically and immediately becomes null and void.’ It was further alleged that the assured did violate this provision of the policy whereupon it became void. That by reason of the violation of the terms of the policy in this respect by Eden, there was no liability to him, and no liability to the plaintiffs in error, under the policy. Plaintiffs in error filed a replication to this answer and to the special defenses contained therein. By their reply, they denied the material allegations contained in the answer and special defenses.

The cause was tried by a jury; the jury returned a verdict in favor of defendant in error. A motion for a new trial was filed by plaintiffs in error. The grounds on which the motion for a new trial was based, raised the questions that the verdict was against the weight of the evidence and contrary to law; that the jury misunderstood and disregarded the instructions; that the jury was guilty of improper conduct; that the court erred in giving instructions to the jury, and other grounds not necessary to be here noticed.

The court granted a new trial. From the order granting the new trial, defendant in error filed a petition for leave to appeal to the Appellate Court for the Second District; the appeal was allowed. That court reversed the order of the circuit court granting the new trial, and entered judgment on the verdict of the jury in favor of defendant in error, and against plaintiffs in error, for costs.

After a petition for rehearing was denied by the Appellate Court, plaintiffs in error sued out a writ of error from this court to review the judgment of the Appellate Court. On motion of plaintiffs in error, that court issued a certificate that there was fairly involved more than $1500, exclusive of costs.

In the assignment of errors attached to the record filed in this court, it is alleged that sections 77 and 92 of the Civil Practice Act, Ill.Rev.St.1941, c. 110, §§ 201, 216, under which the Appellate Court reviewed the order granting the new trial and reversed that order of the circuit court, and entered judgment on the verdict, violate various provisions of the constitution.

Defendant in error filed in this court a motion to dismiss on the ground that the constitutional questions were not raised in the Appellate Court, were not debatable, motion was taken with the case.

The constitutional questions raised relate to the power or jurisdiction of the Appellate Court to enter the judgment here reviewed. Until that judgment was entered, plaintiffs in error were not required to anticipate that the court would enter a judgment which they believed to be in excess of its jurisdiction. The failure on their part to anticipate the entry of such judgment cannot be regarded as estopping them from now urging objections to the jurisdiction of that court based on constitutional grounds. An objection to the power of the court ot enter a judgment, inasmuch as it goes to the jurisdiction of the court, can be raised at any time after the judgment is entered. Toman v. Park Castles Apartment Bldg. Corp., 375 Ill. 293, 31 N.E.2d 299;People v. Psi Upsilon Fraternity, 320 Ill. 326, 150 N.E. 677. The right of this court to review constitutional questions first arising when the judgment of an Appellate Court is entered, is well settled, even though such questions were not raised in that court. Goodrich v. Sprague, 376 Ill. 80, 32 N.E.2d 897;Bagdonas v. Liberty Land & Investment Co., 309 Ill. 103, 140 N.E. 49. The motion to dismiss must, therefore, be denied.

It is here contended by plaintiffs in error, that the Appellate Court had no jurisdiction to review the order of the circuit court granting a new trial; that by reversing that order and entering a final judgment, the effect is to deny to plaintiffs in error due process of law, contrary to the constitution of the State of Illinois and the constitution of the United States.

Under this assignment and in support thereof, plaintiffs in error contend that section 77 of the Civil Practice Act, which declares that an order granting a new trial shall be deemed a final order, and that an appeal therefrom may be granted by the Appellate Courts, violates article 3 of the constitution, Smith-Hurd Stats.; that the determination of whether an order is final or interlocutory, is a judicial question, which may not be constitutionally determined by the legislature; that an order granting a new trial is, in fact, interlocutory, and not final, and that a declaration of the legislature that it is a final order does not make it such.

It is further contended, that section 92 of the Civil Practice Act, if applied to appeals from such orders, is invalid for the same reasons, and for the further reason that said section prescribes procedure on appeals from orders granting new trials different from that applicable to other appeals, in violation of section 29 of article 6 of the constitution; that the Appellate Court had no jurisdiction to enter a final judgment on the verdict, after having reversed the trial court's order granting a new trial; that in entering such judgment, the Appellate Court exercised original jurisdiction in violation of section 11 of article 6 of the constitution.

The question of whether the determination of the character of an order or judgment as to being final or interlocutory is a legislative or judicial question, and the effect of the attempt by the legislature, by section 77 of the Civil Practice Act, to make an order granting a new trial a final order, is not decisive of this case and need not be here determined. The question is...