text:
    The Volunteers of America, Appellee, v. Daniel A. Peirce et al. On Appeal of Maria L. Cox et al., Appellants. Same v. Same. On Appeal of Michigan Anti-Saloon League, Appellant. Same v. Same. On Appeal of The Buchanan Anti-Saloon League of Buchanan, Michigan.
    Gen. No. 19,354. Gen. No. 19,306. Gen. No. 19,332.
    (Not to he reported in full.)
    (Not to he reported in full.)
    (Not to he reported in full.)
    Appeals from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding. Heard in this court at the March term, 1913.

      Certiorari allowed by Supreme Court.
    Reversed and remanded. •
    Opinion filed June 29, 1914.
    Statement of the Case.
    Bill filed by The Volunteers of America against Daniel A. Peirce, executor and trustee under the will of Sarah A. Hawley, Illinois Humane Society of the city of Chicago, Home of the Friendless, Old People’s Home of the city of Chicago, Buchanan Anti-Saloon League, Young Men’s Christian Association of the city of Chicago, Young Men’s Christian Association of Buchanan, Michigan and Albert F. Peacock and others to compel the executor to account to the complainant for an amount claimed to be due it under the residuary bequest in the will of Sarah A. Hawley.
    The residuary bequest was as follows:
    “I hereby give, devise and bequeath all the rest, residue and remainder of my estate of every name and nature whatsoever, that I may die possessed of, or be entitled to at the time of my death, to my executor and trustee, hereinafter named, in trust for the following named institutions, societies or organizations, viz:

      The Illinois Humane Society of the City of Chicago in said County of Cook and State of Illinois.
    The Old People’s Home, now situated at or near the corner of Indiana avenue and Thirty-ninth street in the City of Chicago, in the County of Cook and State of Illinois.
    The Volunteers of America, now located at 184 Dearborn street, in said City of Chicago.
    The Home of the Friendless, now located at Vincennes avenue and Fifty-first street, in the City of Chicago, County of Cook and State of Hlinois.
    The Buchanan Anti-Saloon League of said Buchanan, Michigan.
    The Young Men’s Christian Association of said Buchanan, Michigan, if there shall be in existence at the time of my death in said Buchanan, Michigan, an organization of that name. If there shall not be an organization of the name in existence in said Buchanan at the time of my death, then to the Young Men’s Christian Association of said City of Chicago, to be divided equally among said above named institutions, societies or organizations, it being my intention that each one of the same shall receive an equal share of the residue of my estate.”
    After the filing of answers and cross-bills by the respective defendants, the complainant by leave of court amended its original bill setting up that the Buchanan- Anti-Saloon League was not legally qualified to take under the will, and asserted that by reason thereof the remaining beneficiaries of the residuary estate were each entitled to receive an equal one-fifth share of the trust fund instead' of one-sixth, which would be the share had there been six charitable organizations capable of sharing equally in the fund.
    The court decreed that the Anti-Saloon League had no competent existence to take under the will and that the shares of the other beneficiaries were proportionately increased thereby. From the decree Maria L. ■Cox, jointly with others who were heirs at law and next of kin of Sarah A. Hawley and the Anti-Saloon League, prayed and were allowed separate appeals, which are heard together.

      Abstract of the Decision.
    1. Charities, § 15

      —when bequest is for charitable purpose. A bequest to an anti-saloon league for the promotion and prosecution of anti-saloon work, held to be for a charitable purpose.
    2. Charities, § 22*—construction of bequest. A bequest for a charity should be favored by the courts and liberally construed.
    3. Charities, § 2i*—when association has competent existence to receive bequest. An anti-saloon league, though an unincorporated voluntary association, held to have a competent legal existence so as to be capable of taking a charitable bequest, though at the time of the death of the testator it had no by-laws, no officer or trustee and no roll of members, it appearing that the association opened a bank account and did business as an anti-saloon league and was so known, and there was no reasonable doubt that the testatrix intended the bequest for it.
    John S. Stevens, for appellants Maria L. Cox et al.
    William A. Barnes, for appellant Buchanan Anti-Saloon League.
    Jonas O. Hoover, for appellant Michigan Anti-Saloon League.
    James J. Barbour, Shortall & Murison, Thomas Taylor, Jr., Bayley & Webster, Holt, Cutting & Sidley, Bentley, Burling & Swan and Preston Kumler, for appellee.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Brown

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice Baker

license: Public Domain

text:
    Dennis Gleason, Appellee, v. Chicago City Railway Company et al., Appellants.
    Gen. No. 19,868.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in this court at the October term, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 29, 1914.
    Statement of the Case.
    Action by Dennis Gleason against Chicago City Railway Company and John M. Roach and Henry A. Blair, receivers of the Chicago Railways Company, to recover for personal injuries received by plaintiff resulting from a street car of the Chicago City Railway Company colliding with plaintiff’s wagon. Plaintiff was driving south in the west car track in Halsted street and a northbound car on the east track was diverted by a switch which led to the west track at 18th street, and when the car reached the west track it collided with plaintiff’s wagon, on which he was riding. The defendant receivers were in possession of the railway at the place of the accident and permitted the Chicago City Railway Company to operate over their line of tracks.
    The declaration in separate counts alleged that the defendants were guilty of negligence in the management of the switch, in permitting the same to be in defective condition and in the management and operation of the track, switches and cars. To reverse a judgment in favor of plaintiff for thirty-five hundred dollars, defendants appeal.

      Abstract of the Decision.
    1. Stbeet baileoads, § 61

      —when company permitting another company to jointly use tracks liable for personal injuries. Where a street railway company permits another company to use its tracks and an injury results from the negligent operation of the railway, both companies are liable to respond in damages to the party injured.
    2. Street sailboats, § 111*—when doctrine of res ipsa loquitur applicable. Where a person rightfully on a public street is injured by a street car leaving the track and striking him, such accident is within the maxim res ipsa loquitur and the injury, in the absence of any explanation by the defendant company, is prima facie sufficient to justify a recovery.
    3. Damages, § 122*—when recovery for compound fracture of bones of leg not excessive. A verdict for three thousand five hundred dollars for a compound fracture of both bones of plaintiff’s left leg held not excessive, it appearing the wound became infected, that plaintiff was confined to his bed for four months, that he was not able to work for a year and that his leg was still painful.
    Watson J. Ferry, for appellants; Leonard A. Busby, Warner H. Robinson and Franklin B. Hussey, of counsel.
    George E. Gorman and Daniel L. Madden, for appellee; John T. Murray, of counsel.

      See Blinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Baker

delivered the opinion court.


author: Mr. Justice Baker

text:
    Emma K. Delong, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 19,929.
    (Rot to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed June 29, 1914.

      Abstract of the Decision.
    1. Evidence § 368

      —when testimony as to physical condition not conclusions of witness. In an action for personal injuries, testimony of plaintiff that there was a falling down of her uterus before the injury and that such trouble had been aggrevated since her injury, held to constitute statements of facts and not of conclusions.
    2. Damages, § 179*—when physician may testify as to plaintiff’s physical condition after the injury. In an action for personal injuries, testimony of a physician as to plaintiff’s physical condition after the accident, held admissible against the objections of defendant that there was no connection between the injury and plaintiff’s condition as found by the physician and that there was no evidence to show plaintiff’s condition before the accident other than her own statements.
    3. Damages, § 114*—when recovery for injury to woman not excessive. A verdict for three thousand dollars for injury to a woman passenger on a street car held not excessive, where the evidence should that her ankle was badly sprained and that it was treated by a physician for two months and that she suffered from a prolapse of the pelvic organs.
    Statement of the Case.
    Action by Emma K. Delong against Chicago Railways Company to recover for personal injuries received by plaintiff while she was a passenger on a street car of the defendant’s. The injury was alleged to have been caused by the negligence of defendant in starting the car while she was alighting from it. From a judgment in favor of plaintiff for three thousand dollars, defendant appeals.
    Joseph D. Ryan and Alfred B. Davis, for appellant; John R. Guilliams and Frank L. Kriete, of counsel.
    George W. Woodbury and Richard J. Finn for appellee.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Baker

delivered the opinion of the court.


text:
    Conrad Reichards, Appellee, v. Illinois Furniture Company, Appellant.
    Gen. No. 19,944.
    (Not to he reported in. full.)
    Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed June 29, 1914.
    Statement of the Case.
    Action by Conrad Reichards against Illinois Furniture Company, a corporation, for malicious prosecution. Plaintiff had bought furniture from defendant on the instalment plan and for deferred payments had given his note secured by a chattel mortgage on the furniture purchased. Without notice to or consent of defendant, plaintiff twice removed the mortgaged property to different addresses in Chicago and later went to Cincinnati "in quest of employment and his wife removed the property to another address in the city of Chicago. Upon plaintiff’s return he was arrested on a complaint filed by defendant charging him with removing mortgaged property without the consent of the mortgagee in violation of section 7, ch. 95, R. S., J. & A. 7582. Plaintiff was discharged and later brought this action. From a judgment for plaintiff for one hundred and fifty dollars damages, defendant appeals.
    Shaeffer, Kompel & Rosenberg, for appellant.
    P. L. O’Meara, for appellee.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Baker

delivered the opinion of the court.

Abstract of the Decision.

Malicious pbosecution, § 75 —when evidence sufficient to show probable cause. In an action for malicious prosecution, where the facts showed plaintiff had been arrested on a complaint filed by defendant charging him with removing mortgaged property without the consent of the mortgagee in violation of section 7, ch. 95, R. S., J. & A 1f 7582, and had been discharged, held that a judgment for plaintiff could not be sustained for the reason that the evidence showed that defendant had probable cause for instituting the prosecution.


text:
    Mary A. Kearney, Appellee, v. The County of Cook, Appellant.
    Gen. No. 19,973.
    (Not to fee reported in full.)
    Appeal from the Circuit court of Cook county; the Hon. Dean Franklin, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed June 29, 1914.
    Statement of the Case.
    Action by Mary A. Kearney against County of Cook in assumpsit to recover an amount claimed to be due her for salary during the time she was suspended pending charges made against her by the Civil Service Commission. The declaration consisted of a special count, the common counts and an affidavit of plaintiff that.there was due her for salary appropriated $83, etc.
    Defendant filed a plea of the general issue and with it an affidavit of the County Attorney stating that he verily believes the defendant had a good defense on the merits to the whole of plaintiff’s demand and that the nature of the defense is as follows: That plaintiff on August 20,1911, was employed by the County under civil service as attendant at Dunning at a salary of $32 per month and board valued by the County Board at $15 per month; that on August 20, 1911, she was suspended; that thereafter charges were preferred to the Civil Service Commission asking for her removal and that on October '13, 1911, the charges were heard and plaintiff reinstated without pay; that at no time between August 20, 1911 and October 13, 1911 did plaintiff offer her services or report for duty; and that immediately upon her suspension the position was filled by appointment from the eligible register and the appropriated salary paid to said appointee. Default was entered against defendant for insufficiency of the affidavit of defense, and the court assessed plaintiff’s damages at $83 and entered judgment therefor. To reverse the judgment, defendant appeals.
    Abstract of the Decision.
    1. Judgment, § 10

      —when judgment by default for want of sufficient affidavit of defense improper. In an action on a contract express or implied for the payment of money where the plaintiff flies with the declaration an affidavit of claim and the defendant filed an affidavit of defense with a plea of the general issue, the plaintiff is not entitled to a judgment as by default for want of a sufficient affidavit of defense without first striking the plea from the files.
    For other cases holding the decision in this case controlling, see Duffy v. County of Cook, p. 437, post, and Hanson v. County of Cook, p. 439, post.

    Carl R. Chindblom and William F. Struckmann, for appellant.
    A. D. Gash, for appellee.

      See Illinois Notes Digest, Vois XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Baker

delivered the opinion of the court.

2. Civil service, § 30*—when appointee not entitled to salary during suspension. In an action by a civil service appointee against a county for salary claimed to be due during a period of suspension on charges made against her to the Civil Service Commission where such charges had been dismissed and she was reinstated to her position, held that an affidavit of defense setting up that plaintiff did not render or offer to render any service to the county during such period was a valid defense to the action.

3. Civil service, § 31 —right of civil service appointee to compensation. Positions under the Civil Service Act for counties are not mere employments but are in the nature of offices, and the right of compensation grows out of the rendition of services and not out of any contractual relations.


text:
    James Duffy, Appellee, v. The County of Cook, Appellant.
    Gen. No. 19,974.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed June 29, 1914.
    Statement of the Case.
    Action by James Duffy against County of Cook of the State of Illinois to recover a'sum claimed to be due him for a period of time which he was prevented from working for the County as a civil service employe. With the declaration plaintiff filed his affidavit stating that his suit was for wages and salary appropriated by defendant to him as a fireman and that there was due him $585, etc. Defendant filed a plea of non assumpsit and with it an affidavit of defense which set up that plaintiff was temporarily absent from the service of the County from January 15, 1912 to April 30, 1912; that during such time the moneys appropriated for firemen were paid to other persons in the employ of the County; that on July 1, 1912, the State obtained title to the institution at Dunning, and that on that day plaintiff, who was then employed at Dunning as fireman, voluntarily entered the service of the State of Illinois as fireman at Dunning and continued in such service until August 29,1912 that on July 1,1912, plaintiff was laid off from the service of the county in accordance with the provisions of the law and the rules of the Civil Service Commission then in force, and his name placed on the register of eligibles for reinstatement to he appointed whenever a vacancy should occur; that no vacancies since that time have occurred, and that plaintiff still remains upon the eligible register.
    The procedure in this case was the same as in the case of Kearney v. County of Cook, p. 435, ante. The questions presented for review being the same as in that case, the decision in Kearney case held controlling.
    Carl R. Chindblom, for appellant.
    A. D. Gash, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.


text:
    Agnes McGinnis Hanson, Appellee, v. The County of Cook, Appellant.
    Gen. No. 19,975.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Dean Franklin, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed June 29, 1914.
    Statement of the Case.
    This case presents the same questions as presented in Kearney v. County of Cook, p. 435, ante. The claim of the plaintiff in this case being similar and the procedure in each case the same, the decision in the Kearney case held controlling.
    Carl R. Chindblom and William F. Struckmann, for appellant.
    A. D. Gash, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.


author: Mr. Presiding Justice Fitch

text:
    Robert E. Burke, Plaintiff in Error, v. Wallace M. Waterman, Defendant in Error.
    Gen. No. 19,028.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Negligence, § 95

      —“due care” when applied to a child defined. The term “due care,” when applied to a child, means that degree of care which a child of his age, intelligence, capacity, discretion and experience would naturally and ordinarily use in the same situation and under the same circumstances.
    2. Negligence, § 230*—when instruction on due care of minor erroneous. In an action by a minor tor personal injuries sustained by being run over by defendant’s automobile in a public street, the giving of an instruction telling the jury that in determining whether plaintiff was in the exercise of due care “you are not to consider the fact of his age,” held reversible error.
    Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed July 2, 1914.
    Statement of the Case.
    Action by Robert E. Burke, a minor, against Wallace M. Waterman to recover for personal injuries sustained by plaintiff by being rtin over by defendant’s automobile while plaintiff was upon a public street in Chicago. Upon a trial before a jury a verdict of not guilty was rendered, and from a judgment entered upon the verdict, plaintiff appeals.
    John C. King and James D. Power, for plaintiff in error.
    Delbert A. Clithero, for defendant in error.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    City of Chicago, Defendant in Error, v. Albert R. Tearney, Plaintiff in Error.
    Gen. No. 19,415.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 29

      —right of Appellate Court to falce judicial notice of city ordinances. Though the Municipal Court Act requires the Municipal Court to take judicial notice of city ordinances, there is no provision in such act or any other act requiring or authorizing the Appellate Court to do so on writ of error from a judgment of the Municipal Court.
    2. Municipal Court of Chicago, § 26*—when city ordinance must he made part of record for review. Where a party to a suit in the Municipal Court desires to have any ruling in that court involving the construction of a city ordinance, such ordinance must be made a part of the record in the same manner as if the suit had been tried in the Circuit Court.

      Error to the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed July 2, 1914.
    Statement of the Case.
    Action by City of Chicago against Albert R. Tearney to recover a penalty for violation of an ordinance of Chicago, known as “Section 1541 of the Chicago Code of 1911.” Defendant was found guilty by a jury and a fine of twenty dollars was assessed against him. To reverse the judgment entered on the verdict, defendant prosecutes a writ of error.
    J. W. Sutton, for plaintiff in error; Martin L. Wilborn, of counsel.
    William H. Sexton and James S. McInerney, for defendant in error; Albert J. W. Appell and Ulysses S. Schwartz, of counsel.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

3. Municipal Coubt oe Chicago, § 29 —when ruling of trial court will be presumed correct on review. On appeal from a judgment of the Municipal Court where the record omits any matter or thing necessary to enable the Appellate Court to determine the correctness of a ruling, it will be presumed that facts omitted were sufficient to justify the ruling of the trial court.

4. Municipal cokpobations, § 869*—nature of proceeding for penalty for violation of ordinances. In a. suit to recover a penalty for violation of an ordinance, no arraignment or plea is required as in criminal cases, nor is it necessary that the verdict designate the particular count of the complaint under which the defendant was found guilty.

5. Municipal Coubt oe Chicago, § 12*—loho may prosecute suit for violation of ordinance without sworn complaint. Under a rule of the Municipal Court providing that in suits for violation of city ordinances a sworn complaint shall be filed before process is issued unless the suit is prosecuted by and in the name of the City Attorney, such suit may be prosecuted by and in the name of the “City Prosecutor” without a sworn complaint, where it appears that the City Prosecutor is in fact one of the attorneys for the City and authorized by ordinance to prosecute such suits.

6. Appeal and ebrob, § 1665*—when objection to jurisdiction waived. Where' a defendant not served with proper process entered a special appearance for the purpose of objecting to the jurisdiction of the court and on such ground moved the court to dismiss the suit and the motion was overruled, such defendant by thereafter going to trial upon the merits waives his prior motion and in legal effect, enters his general appearance.

7. Intoxicating liquobs, § 195*'—when evidence sustains finding of guilty for keeping open after hours. Evidence held sufficient to sustain a verdict of guilty for violation of an ordinance providing for the closing of a saloon, barroom or tippling house between the hours of one o’clock and five o’clock a. m. where it appeared that the defendant had a license for a saloon and another license for a restaurant on the same floor of the same premises; that the floor was divided into three rooms; that in one corner was the barroom proper, which was separated from the main room or restaurant by a partition and that in another corner of the floor was a kitchen, also separated from the main room by a partition, and that in this kitchen was what was called .a “service bar,”' from which liquors were served to patrons of the restuarant, and it appearing that the restaurant and kitchen were open after one o’clock, that fifty or more guests were found after that hour seated at the tables eating and that upon the tables were bottles resembling beer bottles, some partly filled and others empty.


text:
    Illinois Improvement & Ballast Company, Appellant, v. Inger C. Heinsen, Executrix, Appellee.
    Gen. No. 19,917.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 839

      —when appellant entitled to file bill of exceptions within reasonable time after it is signed by court. Where a bill of exceptions was presented to the trial court for signature within the time allowed by the court and was marked "presented” but not signed until after the expiration of the time allowed for filing, the appellant has a reasonable time thereafter in which to file it, and what constitutes a reasonable time depends upon the facts and circumstances of each case—filing of the bill of exceptions more than two weeks after it was signed, held an unreasonable delay.

      Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed and bill of exceptions stricken.
    Opinion filed July 2, 1914.
    Statement of the Case.
    Motion by Inger C. Heinsen, executrix of the last will and testament of Hans Heinsen, defendant in error, to strike from the files a bill of exceptions filed by Illinois Improvement & Ballast Company, a corporation, plaintiff in error, and a further motion by defendant in error to affirm the judgment in case the first motion was granted.
    David B. Maxwell and Simon Kruse, for appellant.
    Moses, Rosenthal & Kennedy, for appellee; Julius Moses and Walter Bachrach, of counsel.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

2. Appeal and error, § 833 —jurisdiction of court to extend time for filing hill of exceptions. Where the time for filing a bill of exceptions is extended by an order of court, the court after the expiration of time allowed has no jurisdiction to enter a nunc pro tunc order so as to extend the time previously allowed for filing.

3. Appeal and error, §' 952*—when affidavits cannot he considered on motion to strike hill of exceptions. On motion to strike a bill of exceptions from the files upon the ground that it was not filed in time, affidavits presented by counsel for appellant for the purpose of showing that failure to file was not due to the fault of appellant cannot be considered.


author: Mr. Justice Pam

text:
    Ernst R. Lindner, Appellee, v Kniseley Brothers, Appellant.
    Gen No. 19,376.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed July 2, 1914.
    Statement of the Case.
    Action by Ernst E. Lindner against Kniseley Brothers, a corporation, to recover damages for personal injuries sustained in an accident that occurred while certain additional stories were added to a building known as the Boston Store. Plaintiff was employed by the Otis Elevator Company and was working in the inside of an elevator shaft about the third floor from the top and defendant’s employes were working at the top of the shaft. Defendant’s employes in placing a board across the top of the shaft caused several bricks to fall down the shaft striking plaintiff on the head inflicting serious injury. From a judgment for plaintiff for five thousand dollars, defendant appeals.
    Abstract of the Decision.
    1. Negligence, § 185

      —when evidence adduced on cross-examination does not bar recovery on count in declaration. In an action by a employe of a company against another company for personal injuries received by plaintiff, where it was averred in a count in the declaration that employes of defendant without any warning to plaintiff negligently placed a board over an elevator shaft in which plaintiff was working so as to cause bricks to fall on plaintiff, held that the fact that an employe of defendant called as a witness for plaintiff testified that he looked down the hatch before placing the board and saw no one therein and that he placed the board down lightly, was not conclusive against the right of plaintiff to recover under such count, it appearing that plaintiff was obliged to call such employe as his witness to establish the fact that the act complained of was the act of the defendant and that the testimony complained of was given on cross-examination over plaintiff’s objection.
    2. Negligence, § 47*-—proximate cause. Negligence in placing a board across the top of an elevator shaft which caused brick to become dislodged and fall down the shaft upon plaintiff, held to warrant the jury in finding that the act was the proximate cause of the jury.
    3. Customs and usages, § 26*—admissibility. Where a servant of an elevator company while working in an elevator shaft was injured by the negligence of servants of another company working on the same building in placing a board across the top of an elevator shaft in which the servant of the former company was working so as to cause brick to fall on him, held in an action against the latter company for the injury that testimony of plaintiff’s fellow-servants to show that there was a general custom for men engaged in the erection or repairing of a building to give notice to men working in elevator shafts before starting to work over their heads was admissible.

      F. J. Canty and P. L. McArdle, for appellant.
    James C. McShane, for appellee.

      See Illinois Notes Digest, Tols XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Pam

delivered the opinion of the court.

4. Appeal and errob, § 1561 —when refusal of requested instruction harmless. Refusal of appellant’s requested instruction covered by other instructions given for appellant held not prejudicial.


text:
    Anna Von Der Osten, Administratrix, Appellee, v. Oscar Daniels Company, Appellant.
    Gen. No. 19,407.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed July 2, 1914.
    Statement of the Case.
    Action by Anna Von Der Osten, administratrix of the estate of Max Von Der Osten, deceased, against Oscar Daniels Company to recover damages for wrongfully causing the death of plaintiff’s intestate. The deceased was employed as a carpenter by the Eudolph S. Blome Company, and while carrying boards near a certain opening or shaft in close proximity with a certain beam or leg which defendant’s servants were moving such beam or leg fell down upon a board which plaintiff was carrying so that he lost his balance and fell into the shaft or opening, a distance of about seventy feet, and was killed. To reverse a judgment in favor of plaintiff for five thousand dollars, defendant appeals.

      Abstract of the Decision.
    1. Negligence, § 188

      —when evidence warrants finding that person killed uxts in exercise of due care. In an action for the wrongful death of plaintiff’s intestate alleged to have been caused by the negligence of defendant’s servants in moving a certain beam or leg on a building in course of construction, near where the plaintiff’s intestate was carrying boards so as to cause the beam to fall on a board which deceased was carrying and cause him to lose his balance and fall, evidence held sufficient to warrant a finding by the jury that the deceased was in the exercise of due care for his safety.
    2. Negligence, § 226*—when instruction as to degree of care required of person killed not prejudicial. In an action for wrongful death resulting from negligence, an instruction telling the jury that “the law did not require the plaintiff’s intestate the highest degree of care,” held not prejudicial, it appearing that an instruction given on behalf of defendant stated the degree of care which defendant claims the plaintiff intestate was compelled to exercise.
    3. Appeal and ebbob, § 1679*—when variance for want of amendment to declaration waived. Where plaintiff during the trial asked for leave to amend the declaration but no such amendment was ever made, the defendant on review cannot urge there was a material variance between the declaration and the evidence on the assumption that the declaration was not in fact amended, where in his pleadings and an instruction offered by him he recognized the amendment.
    Eddy, Wetten & Pegler, for appellant.
    John A. Bloomingston, for appellee.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Pam

delivered the opinion of the court.


author: Mr. Justice Scanlan

text:
    Stephen Matecny, Administrator, Appellee, v. Vielding Steel Works, Appellant.
    Gen. No. 19,350.
    1. Master and servant, § 98a

      —who entitled to compensation under Workmen’s Compensation Act. Under section 4 of the Workmen’s Compensation Act of 1912, J. & A. If 5452, where the employe leaves a dependent mother and nondependent brother and sisters, the compensation is to be awarded to the mother alone, and such brothers and sisters are not entitled to participate with the mother in the compensation allowed.
    2. Master and servant, § 98a*—beneficiaries under Workmen’s Compensation Act. Paragraph “E” of Section 4 of the Workmen’s Compensation Act of 1912, J. & A. If 5452, simply prescribes the method of determining the respective shares of the dependent heirs in the trust fund in hands of the administrator, and the word “beneficiaries” contained therein must be construed to mean dependent heirs.
    3. Master and servant, § 98a*—when obligation of employer to pay compensation for death of employe ceases. When an employe dies as a result of his injuries leaving only a dependent mother, the obligation of the employer to make payments of compensation awarded to her ceases upon her death, and the right to further payments does not survive her death and inure to the benefit of her estate.
    4. Master and servant, § 98a*—when award of compensation in lump sum cannot be sustained. An order of court awarding payment of the entire compensation allowed for the death of an employe in a lump sum will be reversed, where the trial court in passing on the petition adopted an erroneous theory of the law and the Appellate Court is unable to say that such error did not work a prejudice to the defendant, it appearing that the only beneficiary was a woman fifty-eight years of age and in ill health, who might not live the period of time the defendant was obligated to make the payments in instalments and that the court did not give proper effect to such facts.
    5. Master and servant, § 98a*—propositions of law relating to Workmen’s Compensation. Propositions of law relating to who are beneficiaries entitled to compensations allowed for the death of an employe and relating to the right to have compensation paid in a lump sum, under the provisions of the Workmen’s Compensation Act of 1912, held improperly refused.

      Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed July 2, 1914.
    Statement by tie Court. This appeal is taken from a judgment of the Superior Court of Cook county, ordering a lump sum payment under the Act approved June 10, 1911, and in force May 1, 1912, commonly known as the “Compensation Law.” (J. & A. iff]" 5449 et seq.) Joseph Matecny, an employe of the appellant, was fatally injured in July, 1912, in the course of his employment, the injuries sustained arising out of the said employment. Both the appellant and the deceased employe were subject to the provisions of the said compensation law, and the administrator of the estate of Matecny brought these proceedings for the purpose of securing the death benefits due and to become due under the law in a lump sum, in accordance with the provisions of section 5y2 of the Act. (J. & A. 5454.) The deceased, Joseph Matecny, left surviving him as his only heirs at law his mother, Marie Matecny, and five brothers and sisters. The mother at the time these proceedings were commenced was fifty-eight years of age, an invalid unable to work and support herself and requiring an attendant to care for her. The deceased had contributed to her support within five years previous to the time of his death, but none of the brothers or sisters were dependent upon the earnings of the deceased. It was agreed that the total amount of compensation due and to become due under the act was $1,861.60, payable in biweekly instalments of $8.95 and that the present worth of the sum named payable in such instalments with interest computed at five per cent, per annum was $1,551.34. The facts, above stated, and all matters of fact material to the issues set up in the petition were stipulated between the parties, and upon a hearing by the court without a jury the facts so stipulated were found by the court, which also found that it was to the best interest of the parties that the entire compensation be paid in a lump sum, and judgment was entered for the appellee for $1,551.34. Proper objections and exceptions to the findings of the court and to the entry of judgment were entered by the appellant and four propositions of law setting out the contentions of appellant as to the law of the case were presented and marked “refused” by the court.
    Ralph F. Potter, for appellant.
    Frank H. Bicek and Rockhold & Busch, for appellee; Francis X. Busch, of counsel.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Scanlan

delivered the opinion of the court.

The appellant relies for a reversal of the judgment upon the following alleged errors :

First. The court erroneously refused to hold the four propositions of law submitted by the appellant.

Second. It was error for the court under the admitted facts of the case to enter an order and judgment that the entire compensation be paid in a lump sum.

"The Workmen’s Compensation and Employers’ Liability Act, under which the proceedings in this case were brought, was approved June 10, 1911, and went into force May 1, 1912. (J. & A. fíj[ 5449 et seq.) The title of the act reads as follows: “To promote the general welfare of the people of this State by providing compensation for accidental injuries or death suffered in the course of employment.” The sections of the act material to the present inquiry are as follows:

‘ ‘ Section 4. The amount of compensation which the employer who accepts the provisions of this Act shall pay for injury to the employe, which results in death, shall be:
a. If the employe leaves any widow, child or children, or parents or other lineal heirs to whose support he had contributed within five years previous to the time of Ms death, a sum equal to four times the average annual earnings of the employe, but not less in any event than one thousand five hundred dollars, and not more in any event than three thousand five hundred dollars. Any weekly payments, other than necessary medical or surgical fees, shall be deducted in ascertaining such amount payable on death.
b. If the employe leaves collateral heirs dependent upon Ms earnings, such a percentage of the sum provided in section ‘a’ as the contributions which deceased made to the support of these dependents bore to his earnings.
c. If the employe leaves no widow or child or children, parents or lineal or collateral heirs dependent upon his earnings, a sum not to exceed one hundred and fifty dollars for burial expenses.
d. - All compensation provided for in this section to be paid in case injury results in death, shall be paid in instalments equal to one-half of the average earnings, at the same intervals at which the wages or earnings of the employe were paid while he was living; or if this shall not be feasible, then the installments shall be paid weekly.
e. The compensation to be paid for injuries which result in death, as provided for in this section, shall be paid to the personal representative of the deceased employe and shall be distributed by such personal rep.resentative to the beneficiaries entitled thereto, in accordance with the laws of this State relatmg to the descent and distribution of personal property.” (J. & A. 1i 5452.)
“Sec. 5%. Any person entitled to compensation under this Act, or any employer who shall be bound to pay compensation under this Act, who shall desire to have such compensation or any part thereof, paid in a lump sum, may petition any court of competent jurisdiction of the county in which the employe resided or worked at the time of disability or death, asking that such compensation be so paid, and if upon proper notice to the interested parties, and a proper showing made before such court, it appears to the best interest of the parties that such compensation he so paid, the court shall order payment of a lump sum, and where necessary, upon proper application being made, a guardian, conservator or administrator, as the case may be, shall be appointed for any person under disability who may be entitled to any such compensation, and an employer bound by the terms of this Act, and liable to pay such compensation, may petition for such appointment where no such legal representatives have been appointed or acting for such party or parties so under disability.” (J. & A. j]' 5454.)
“Sec. 11. * * * Any right to receive compensation hereunder shall be extinguished by the death of the person or persons entitled thereto, subject to the provisions of this Act relative to compensation for death received in the course of employment. * * ” (J. & A. tf 5460.)

The present act under consideration must not be confused with the later Workmen’s Compensation Law of 1913.

The four propositions of law submitted to the court and marked “refused” are as follows:

“1. The court holds as a matter of law that the word beneficiaries as used in section 4-e of an act entitled, ‘An act to promote the general welfare of the people of this State by providing compensation for personal injuries or death suffered in the course of employment,’ approved June 10, 1911, in force May 1, 1912, refers to lineal heirs and collateral heirs dependent upon deceased’s earnings referred to in paragraphs a and b of the same section.
2. The court holds as a matter of law that in this case the sole beneficiary entitled to receive compensation under section 4 of an act entitled, ‘An act to promote the general welfare of the people of this State by providing compensation for accidental injuries or death suffered in the course of employment,’ approved June 10, 1911, in force May 1, 1912, is the mother of the deceased, Marie Matecny.
3. The court holds as a matter of law that where an employe sustains an injury which results in death, under circumstances which require the employer to pay compensation under the provisions of an act entitled, ‘An act to promote the general welfare of the people of this State by providing compensation for accidental injuries or death suffered in the course of employment,’ approved June 10, 1911, and in force May 1, 1912, and leaves a mother to whose support he has contributed within five years previous to the time of his death, and collateral heirs who were not dependent upon his earnings as his sole heirs at law the weekly payments provided in section 4-d of the said act are payable to the administrator during the lifetime of the mother, and if the mother shall die before the payments provided by section 4-a and 4-d of the said law are completed, the employer shall not be liable to make further payment after the death of the mother.
4. The court holds as a matter of law that where an employe sustains injuries which result in his death, under circumstances which require the employer to pay compensation under the terms of an act entitled, ‘An act to promote the general welfare of the people of this State by providing compensation for accidental injuries or death suffered in the course of employment,’ approved June 10, 1911, and in force May 1, 1912, and leaves surviving him a mother to whose support he has contributed within five years previous to the time of his death, and collateral heirs who were not dependent upon his earnings, as his sole heirs at law, and where said mother was at the time of the injury and death 58 years of age and an invalid, the court will not order the compensation provided by section 4-a of the said act to be paid in a lump sum under the provisions of section 5% of the said act.”

The position of the appellant, briefly stated, is that under section 4 of the Act all the compensation, under the law, must be paid by the administrator to the mother, Marie Matecny; that no part of the compensation is payable to the brothers and sisters, or any of them; that the amount paid to the mother is limited to biweekly payments of $8.95 for a period of eight years, provided she should live so long; and that in the event of her death, prior to the expiration of eight years, the payments would cease. The appellant admits that under section 5y2 of the Act, the court might, in a proper case, order the entire compensation paid in a lump sum, but it insists that, under the facts of this case, the court abused its discretion in ordering such a payment, for the reason that the mother was the sole beneficiary under the act, and her age and physical condition made it probable that she would die prior to the expiration of the eight years ’ payment period fixed by the act, and that, therefore, it was not to the best interest of the appellant to order such a payment.

The position of the appellee is: First, that under the act, the nondependent brothers and sisters participate with the dependent mother in the compensation allowed ; second, that by the terms of the act, the entire compensation is made a vested right in the said beneficiaries ; third, that, even if it be held that the_ mother alone is the beneficiary, her right to either weekly payments covering a period of eight years, or a lump sum payment, became a vested right upon the death of Joseph Mateeny and the appointment of the administrator of his estate; and if any part thereof were unpaid at the time of her death, the right to the remainder would not lapse or be defeated by her death, but would form a part of her estate; fourth, that the court properly found under the admitted facts that it was for the best interest of the parties that a lump sum payment of the entire compensation be ordered.

The power of the court, in a proper case, to require compensation payments due and to become due to be paid in a lump sum under the provisions of section 5% of the Act, is conceded.

The first question for us to decide is: Is the compensation received by the administrator, under the law, payable by the administrator to the mother, Marie Mateeny, alone, or do the nondependent brothers and sisters participate in the amount received? In determining this question, we must look to the entire act and ascertain, if possible, the intent and purpose of the Legislature in enacting the law. “It is always necessary, first, to understand the subject of an act and the object to be accomplished by it. Once the subject matter is clearly ascertained and the general legislative purpose discovered, a key is thereby furnished which will enable one to correctly interpret all of the constituent and subordinate elements found in the act.” Dietz v. Big Muddy Coal & Iron Co., 263 Ill. 480-487. “It is an elementary rule of construction that all parts of a statute must be considered together and not each by itself. (Sutherland on Stat. Const, sec. 215; Maiss v. Metropolitan Amusement Ass’n, 241 Ill. 177; Soby v. People, 134 id. 66.) * * * The several provisions of the statute should be construed together in the light of the purpose and objects of the act, so as to give effect to the main intent, even though in so doing particular provisions are not construed according to their literal reading.” Krome v. Halbert, 263 Ill. 172.

The title of the act is significant: “An act to promote the general welfare of the people of this State, by providing compensation for accidental injuries or death suffered in the course of employment.” Section 4 of the Act is the one that designates the beneficiaries in case of the death of the employe. In the first sentence of this section and in paragraphs d and e of the same section, in speaking of the amount that the employer shall pay, it is called compensation. Some of the meanings of the word “compensation” as defined by the Century Dictionary, are as follows: “That which is given or received as an equivalent, as for services, debt, want, loss, or suffering; indemnity; recompense; amends; requital. That which supplies the place of something else, or makes good a deficiency, or makes amends.”

If paragraph e of section 4 were not in the act, it would be very plain to whom the payments of compensation are to be made. The appellee relies upon paragraph e to sustain his contention that the administrator must distribute the compensation received by him to the heirs of the deceased employe, according to the Illinois statute of descent and distribution of personal property. Under paragraphs a and b, the compensation would be paid only to heirs to whose support the deceased had contributed. Paragraph c provides that the employer shall only be required to pay funeral expenses to the administrator, in case the employe leaves no dependent heirs. This paragraph is an important one in the interpretation of the intent and purpose of the act. After a very careful study of the entire act, in the light of the rule laid down by our Supreme Court, we have, reached the conclusion that the intent and purpose of the act is to make compensation, in part at least, to the injured workman for the pecuniary loss sustained by him; or in case of his death, caused by injuries sustained by him in the course of his employment, to compensate, in part at.least, his heirs, to whose support he had contributed during his lifetime, for the pecuniary loss sustained by them through the death of the said workman. The purpose of the law (as we construe it) can only be carried out by making all payments due under the law payable to the injured workman, or in case of his death from injuries sustained by him in the course of his employment, to those to whose support he had contributed during his lifetime. In refusing the first proposition of law submitted by the appellant, the trial court interpreted the word “beneficiaries” in paragraph, e as meaning all the heirs of the deceased, regardless of whether they were dependent or not. - We cannot agree with this interpretation. Such a construction, in our judgment, does violence to the plain purpose and spirit of the act, and it would work a grave injustice in this and many other cases arising under the act. The word “beneficiary” means, “one for whose benefit a trust is created, a cestui que trust.” Black’s Law Dictionary; Bouvier’s Law Dictionary. Keeping in mind the purpose of the act, it is not difficult to interpret paragraph e. The beneficiaries contemplated by the paragraph are the particular heirs who have suffered pecuniary loss by reason of the cutting off of the wages of the deceased employe. These are the heirs who are entitled to the compensation under the act. Paragraph e simply prescribes the method of determining the respective shares of the dependent héirs in the trust fund in the hands of the administrator. The present case illustrates what might follow if the appellee’s interpretation of paragraph e were adopted. The deceased left an invalid mother dependent upon him for support; he also left five brothers and sisters, none of whom were dependent upon his earnings for support and who suffered no pecuniary loss by reason of his death. If the appellee is correct in his interpretation of paragraph e, the five brothers and sisters would receive five-sevenths of the sum payable by the appellant to the administrator, and they would receive the same solely by reason of the fact that the deceased employe left a mother dependent upon him for support. It is conceded that if it were not for the fact that the deceased employe left surviving him a mother dependent upon him for support, the administrator could recover nothing against the appellant in this case. We are satisfied that the mother is entitled to the entire compensation that the appellant must pay under the act. It follows from what we have said that the court erred in refusing the first and second propositions of law submitted by the appellant.

The appellant claims that under section 11 of the act, the payments cease upon the death of the dependent person or persons entitled to receive them, and that in the present case the appellant would not be obligated to make any further payments to the administrator after the death of the mother. The appellee contends that, even if it be held that the mother was the sole beneficiary, still her right to the entire compensation became vested upon the death of Joseph Matecny, and the appointment of an administrator for his estate, and that this right would survive her death and inure to the benefit of her estate. After a careful consideration of this question, we have arrived at the conclusion that the contention of the appellant is correct, and that the obligation of the appellant to pay compensation to the- administrator would be extinguished on the death of the mother. We do not believe that the act contemplates that the employer shall pay any money to non-dependent heirs. It follows from what we have said that the court erred in refusing to hold the third proposition of law submitted by the appellant.

It is apparent from the action of the trial court in refusing the first, second and third propositions of law submitted to him by the appellant, that the court interpreted the law to mean that, in addition to the mother, the five brothers and sisters were beneficiaries under the act, and that the employer was obligated to continue the payments provided by section 4, after the death of the mother. In the view of the law taken by the trial court, the death of the mother would have no controlling effect on the payments by the appellant. The fact that the mother was fifty-eight years of age, and an invalid unable to work and support herself, requiring that someone should attend to and take care of her, was merely a circumstance to be considered, together with the fact that there were five young brothers and sisters of the deceased employe, in determining whether the appellant should be ordered to pay the entire compensation in a lump sum. Section 5% allows the court to order the employer to pay the compensation, or any part thereof, in a lump sum, where it appears to the best interest of the parties that such compensation be so paid. Plainly the law contemplates that the court, in passing upon the question of the payment of the compensation in a lump sum, shall regard the rights of the employer as well as the rights of the beneficiaries. The appellant concedes that, under the stipulated facts in this case, the court would have been justified in ordering the appellant to pay a portion of the compensation in a lump sum, as provided in section 5%, but it strenuously insists that it was exceedingly unfair, and not to the best interest of the appellant, under the facts of the case, that it should be compelled, on the filing of the petition by the administrator, to pay the entire compensation in a lump sum. The appellant insists that (in the absence of a lump sum order) it was obligated to make the payments in instalments, extending over a period of eight years, and that the court could not, with any reasonable degree of certainty, foresee that the mother could live so long, in view of her age and the precarious condition of her health, and that the trial court failed to give proper effect to these important facts in passing upon the petition of the appellee.

If we are correct in our interpretation of the law, it follows that the trial court, in passing upon the petition in this case, adopted an erroneous theory of the law, and we cannot say, under the facts of the case, that this error did not work to the prejudice of the appellant. Had the court interpreted the law as we do, it might very well, under the particular circumstances in this case, have refused to order the appellant to pay more than a part of the compensation in a lump sum. The judgment of the Superior Court of Cook county will, therefore, be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    Hyman Lew, Appellee, v. Jacob Katz et al., Appellants.
    Gen. No. 19,368.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 15

      —what necessary to secure attendance of adverse party for purpose of cross-examination. To entitle a party to secure the presence of the adverse party in court for the purpose of cross-examining him under section 33 of the Municipal Court Act, J. & A. If 3345, he must secure the attendance of such party in the same manner that the attendance of witnesses is obtained.
    2. Costs, § 67*—when appeal prosecuted for delay. Record held to show that appeal was prosecuted merely for delay and statutory ten per cent, damages allowed.
    Appeal from the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed July 2, 1914.
    Statement of the Case.
    Action by Hyman Lew against Jacob Katz, Joseph Katz, L. P. Ellman, D. M. Smith, S. E. EHman, Sidney M. Weil and Morris Katz, to recover on a promissory note for $1,200 signed by the defendants and made payable to themselves and then indorsed. From a judgment in favor of plaintiff for $1,288, defendant appeals.
    Frank & Lurie, for appellants.
    Benjamin B. Morris, for appellee.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Scanlan

delivered the opinion of the court.


text:
    Anna M. Ellis, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 19,381.
    (Not to be reported in fnll.)
    Abstract ©f the Decision.
    1. _ Cabbiers, § 476

      —when evidence shows a prima facie case that person riding on transfer is a passenger. In an action for personal injuries sustained by plaintiff when alighting from a street car, evidence held sufficient to make a prima facie case for plaintiff that she was a passenger at the time of the accident, where plaintiff testified she paid her fare on one of defendant’s cars and received a transfer for another car, that when she boarded the latter car the conductor on such car accepted it without question and permitted her to take a seat and to ride as a passenger to her destination, and that when she reached her destination the car was stopped by the conductor on a signal given by her, to enable her ■ to alight.

      Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Opinion filed July 2, 1914.
    Statement of the Case.
    Action by Anna M. Ellis against Chicago Railways Company to recover for personal injuries received by the plaintiff when she was attempting to alight from one of defendant’s cars. To reverse a judgment in favor of plaintiff for four thousand dollars, defendant appeals.
    Joseph D. Ryan and Alfred B. Davis, Jr., for appellant; John R. Guilliams and Frank L. Kriete, of counsel.
    Quin O’Brien and O. A. Arnston, for appellee.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

      See Blinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Scanlan

delivered the opinion of the court.

2. Cabbiebs, § 306 —when evidence insufficient to show person was riding as a trespasser on an illegal transfer. In an action for personal injuries sustained by plaintiff when alighting from a street car, evidence held insufficient to show that plaintiff was a trespasser on the car for the reason that she was riding on a transfer which "was claimed to have been invalid.

3. Evidence, § 410*-—when physician may give opinion as permanency of physical condition of plaintiff. In an action for personal injuries, a physician or surgeon may state his opinion whether the present physical conditions of plaintiff are apt to be permanent and, if any improvement seems probable, what are the chances for a complete recovery.

4. Appeal and ebbok, § 450*—when party cannot complain of refusal to strike out answer of witness. Where a physician in answer to a question testified as to the permanency of plaintiff’s physical condition and later in answer to a similar question gave a similar answer which defendant moved the court to have stricken out, held that the defendant could not complain of the court’s refusal to strike out such latter answer where no objection was made to the original question and no motion was made to strike out the answer thereto.

5. Damages, § 110*-—when amount allowed for personal injuries not excessive. A verdict for four thousand dollars for personal injuries received by a passenger alighting from a street car held not excessive under the evidence on the question of damages.


author: Mr. Presiding Justice Barnes

text:
    The People of the State of Illinois, Defendant in Error, v. Charles Bosickavich, Plaintiff in Error.
    Gen. No. 20,010.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed July 14, 1914.

      Abstract of the Decision.
    1. Assault and battery, § 34

      —when verdict warrants judgment for mere assault. On information charging a defendant with an assault with a dangerous weapon, without any considerable provocation and under circumstances showing an abandoned and malignant heart, with an intent to inflict bodily injury, a verdict finding the defendant guil.ty of an “assault with a deadly weapon” held in effect to be a verdict for mere assault and to authorize the court to reject as surplusage the words “with a deadly weapon” and render judgment on the verdict for such ottense.
    2. Assault and battery, § 34*—when jury may convict of lesser offense of mere assault. On the trial of an information charging an assault with a dangerous weapon, without any considerable provocation and under circumstances showing an abandoned and malignant heart, with intent to inflict bodily injury, the jury may acquit of the offense charged in the information and convict of the offense of mere assault even though there is no count specifically charging the lesser offense.

      Statement of the Case.
    Information filed by the People of the State of Illinois charging Charles Bosickavich with an assault with a dangerous weapon, without any considerable provocation and under circumstances showing an abandoned and malignant heart, with intent to inflict bodily injury. The verdict found defendant guilty of an “assault with a deadly weapon” and judgment was pronounced upon the verdict and a fine of one hundred dollars and the costs of the suit imposed. To reverse the judgment, defendant prosecutes a writ of error.
    Plaintiff in error urges as ground for reversal that the verdict is insufficient to support the judgment in that it does not respond to the issue submitted to the jury.
    Louis Kahn, for plaintiff in error.
    Maclay Hoyne and Francis E. Hinckley, for defendant in error.

      See Illinois Notes Digest, Vols 51 to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Mike Bosickavich, Plaintiff in Error.
    Gen. No. 20,011.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed July 14, 1914.
    Statement of the Case.
    Only one point is raised in this record, which is the same as that raised in People v. Bosickavich, p. 462, ante. The information in each case was for the same offense and the form of verdict alike in each, and the "decision in the Bosickavich case held controlling.
    Louis Kahn, for plaintiff in error.
    Maclay Hoyne and Francis E. Hinckley, for defendant in error.
   Mr. Presiding Justice Barnes

delivered the opinion of the court..


author: Mr. Justice Gridley

text:
    Albert Quann, Appellee, v. Henry A. Blair and John M. Roach, Receivers, Appellants.
    Gen. No. 19,380.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed July 14, 1914.
    Statement of the Case.
    Action by Albert Quann against Henry A. Blair and John M. Boach as receivers of the Chicago Railways Company to recover for personal injuries sustained by plaintiff while in the employ of defendants as a street car conductor. The facts showed that the car on which plaintiff was conductor was run to the end of the line and in order to make the return trip the conductor was required to change the trolley pole to the other end of the car and fix the fenders; that when he went around to such end with the trolley pole he noticed that another car of the company was on the same track in close proximity with his car and asked the motorman of his car- to back up a little; that the conductor then stepped in between the cars and put the trolley on the wire and was standing at the time in the middle of the car, on the fender and that such motorman instead of backing the car caused the car to move forward on account of his failure to properly use the reverse handle, and the conductor’s leg was caught between the bumpers and crushed. To reverse a judgment in favor of plaintiff for six thousand dollars, defendants appeal.
    Joseph D. Ryan and William H. Symmes, for appellants; John R. Guilliams and Frank L. Kriete, of counsel.
    Darrow & Baily, for appellee.

      Abstract of the Decision.
    1. Master and servant, § 833

      —when instructions based on proof of declaration prejudicial. Where a street car conductor was injured by a collision with another car caused by the motorman of his car starting the car- forward when requested by the conductor to back it, held, in an action against the street railway company for the injuries where the counts in the declaration charged the company with negligence in permitting the brakes of the car to be out of repair, and in employing an incompetent mo-" torman that the giving of instruction for the plaintiff which in effect told the jury that if they believe the plaintiff has proved his case as charged in the declaration, or some count thereof, by a preponderance of the evidence they should find the defendant guilty, was prejudicial error, for the reason that neither of the counts alleged that plaintiff did not know or in the exercise of ordinary care could have known that the brake was out of repair or that the motorman was incompetent, and also for the reason that they did not allege that the defendant knew or in the exercise of ordinary care could have known such facts.
    ,2. Master and servant, § 576*—burden of proof. In an action against a street railway company for injuries sustained by a street car conductor in a collision with another car, where a count in the declaration averred that the motorman on the car with plaintiff was incompetent, held under the facts of the case it was necessary for plaintiff to prove that he did not know or in the exercise of ordinary care could not have known that the motorman was an incompetent fellow-servant.
    3. Master and servant, § 580*—burden of proof. Where a street car conductor was injured by a collision between cars resulting from a motorman on the same car as plaintiff being unable to stop his car on account of a defective brake, in an action against the street car company to recover for the injuries held under the facts of the case it was incumbent on plaintiff to prove that he did not know or could not have known of the defect.
    4. Master and servant, § 539*—sufficiency of allegation of plaintiff’s knowledge of defect. In an action against a street railway company for personal injuries sustained by a street car conductor on account of a defective brake, an allegation in the declaration that plaintiff was in the exercise of due care for his own safety coupled with other allegations, held not to amount to an allegation that plaintiff did not know the brake was defective.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    In the Matter of the Petition of Victor I. Englert. On Appeal of Victor I. Englert, Appellant, v. Henry Kors, Appellee.
    Gen. No. 19,606.
    (Not to he reported in full.)
    Appeal from the County Court of Cook county; the Hon. John E. Owens Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed July 14, 1914.
    Rehearing denied July 28, 1914.
    Statement of the Case.
    Petition by Victor I. Englert filed in the County Court for his release from arrest and imprisonment under the Insolvent Debtors’ Act. The petition alleged that petitioner had been arrested under a writ of ca. sa. issued by the clerk of the Circuit Court in favor of Henry Kors for the sum of five thousand dollars, and that he was in the custody of the sheriff by virtue of said writ. On the same day in which the petition was filed a hearing was had in the County Court and the court entered an order of record in which it found that “malice was the gist of the action in which judgment was heretofore rendered against said petitioner,” and ordered that Englert be remanded to the custody of the sheriff. To reverse the order, petitioner appeals.
    George Remus, for appellant.
    Moran & Moran, for appellee; Eugene A. Moran, of counsel.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.

Abstract of the Decision.

1. Execution, § "295 —when evidence sufficient to warrant finding malice gist of action. Evidence held sufficient to warrant the County Court in dismissing a petition for a discharge from arrest under a ca. sa. and remanding petitioner to the custody of the sheriff on the ground that malice was the gist of the action, where the declaration introduced in evidence showed the defendant was charged by plaintiff with wickedly and wilfully alienating his wife’s affections and with causing his wife to abandon him and cohabit with defendant, and the order directing the issuance of the ca. sa. introduced in evidence, stated the action was in tort and that the gist of the action was malicious, wicked and wilful.

2. Execution, § 305*—when petitioner for discharge from arrest-under ca. sa. cannot complain of evidence heard on petition. On appeal from an order of the County Court dismissing a petition for discharge from arrest under a ca. sa. and ordering the petitioner to be remanded to the custody of the sheriff, where it appears that the court found that malice was the gist of the action from the declaration and the order directing the issuance of the ca. sa., which were introduced in evidence, held that the petitioner could not complain that no copy of the judgment was introduced in evidence, where it did not appear from the bill of exceptions that said copy of order and the declaration were all the evidence introduced before the County Court.


text:
    Alonzo M. Griffen et al., copartners as Griffen Brothers, Plaintiffs in Error, v. City of Chicago Heights, Defendant in Error.
    Gen. No. 19,732.
    (Not to he reported in full.)
    Error to the County Court of Cook county; the Hon. Isaac Hudson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and judgment here.
    Opinion filed July 14, 1914.
    Rehearing denied July 28, 1914.
    Statement of the Case.
    Action by Alonzo M. Griffen and Zeno T. Griffen, copartners doing business as Griffen Brothers, against City of Chicago Heights to recover for certain shorthand work done and for $5.60 expended for railroad fare, amounting in all to $115.10. The case was tried by the court without a jury which resulted in a finding in favor of defendant. To reverse a judgment entered on the finding, plaintiffs appeal.
    Abstract of the Decision.
    Municipal corporations, § 158*—when liable for stenographer’s fees. Where a corporation counsel employs a stenographer to report certain meetings in regard to a controversy between the mayor and certain aldermen on the one hand and certain aldermen and the corporation counsel on the other, relative to the abolishment and reorganization of the board of local improvement, held the city was liable for such fees though the mayor refused to sign a warrant for the same, where upon the rendition of the bill for said fees the same was approved by the finance committee-and allowed by the city council.
    Alonzo M. Griffen, for plaintiffs in error.
    Earl E. Smith, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Mary L. Alexander, Appellee, v. Bankers Union of Chicago, Appellant.
    Gen. No. 19,802.
    1. Insurance, § 749

      —when reinsurance contract by a benefit society is ultra vires and void. A benefit society has no power or authority to enter into a reinsurance contract assuming and agreeing to pay benefits contracted to be paid by another society, and where it enters into such a contract the contract is ultra vires and void, and the society is not estopped from raising such a defense for the reason that it had received all premiums and dues from the member up to the time of his death. '
    2. Insurance, § 749

      —power of benefit societies to insure applicants beyond age of sixty years. A benefit society is without power to admit to membership and insure an applicant who is beyond the age of sixty years because of the statutory prohibition contained in Section 7 of the Act relating to Fraternal Beneficiary Societies, Hurd’s R. S. 1912, ch. 73, § 264, J. & A. If 6653.
    3. Cobpobations, § 325*—extent of powers. A corporation has only such powers as are expressly or impliedly conferred on it by statute.
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed July 14, 1914.
    Statement by the Court. This is an appeal from a judgment of $1,100, rendered in an action of the first class by the Municipal Court of Chicago, January 30, 1913, in favor of Mary L. Alexander, plaintiff, against Bankers Union of Chicago, an Illinois corporation, defendant. The case was tried before the court without a jury, the court finding the issues against the defendant and assessing plaintiff’s damages at the sum of $1,100.
    - Plaintiff’s claim, as stated in her statement of claim filed August 11, 1911, was for said sum of $1,100, alleged to be due her as wife and beneficiary of Dr. Lawrence Alexander, who died November 6, 1910, upon certificate No. 6050, issued April 12, 1899, by Boyal Fraternal Union, a Missouri corporation, which certificate was “accepted by the Bankers Union of Chicago, an Illinois corporation, under its contract of reinsurance with said Boyal Fraternal Union,” and upon an instrument in writing, called a “re-insurance contract,” executed by said Bankers Union of Chicago, dated April 28, 1909, and delivered to Dr. Alexander in his lifetime. Both the beneficiary certificate, dated April 12, 1899, and said instrument in writing, dated April 28, 1909, were attached to said statement of claim and made a part thereof. The certificate was in the usual form issued by Boyal Fraternal Union, and certified, inter alia, that Lawrence Alexander had been accepted as a beneficiary member of the Order; that he was entitled to certain enumerated benefits to be paid from the benefit reserve fund; that in case of his death and upon the receipt of satisfactory proof thereof there should be paid to Mary L. Alexander, his wife, if surviving, the sum of $2,000, providing the certificate had continued in full force and effect for twenty years; and that in case of his death occurring after two years from the delivery of the certificate and within three years there should be paid to the beneficiary ten per cent, of said $2,000; after three years fifteen per cent.; after four years twenty per cent.; after five years twenty-five per cent.; after ten years fifty per cent.; after eleven years fifty-five per cent.; after twelve years sixty per cent., etc. Dr. Alexander died more than eleven years, but less than twelve years, after the delivery of said certificate, leaving him surviving said Mary L. Alexander, plaintiff. It was provided in the certificate that the same was issued subject to the constitution and by-laws of the Order then in force or thereafter enacted. The so-called “re-insurance contract,” dated April 28, 1909, was signed by the supreme president and countersigned by the policy writer of the Bankers Union of Chicago, and states that that society “hereby insures and accepts into membership Lawrence Alexander, under certificate No. 6050, issued to him by the Boyal Fraternal Union, and agrees to pay all benefits stated in said certificate according to its terms and conditions, subject to the provisions of the constitution and by-laws of the Boyal Fraternal Union in force at this date, April 28, 1909. * * * This re-insurance contract shall not be valid until countersigned by our authorized policy writer.”

      In its affidavit of merits the defendant set up as defenses: (1) That the supposed contract of April 28, 1909, purports to assume and agree to pay benefits stipulated to be paid by another society, which contract the defendant, as a fraternal benefit society organized under the laws of Illinois, had no power to make or perform; (2) that at the time the supposed contract was signed Dr. Alexander was over sixty years of age and the defendant was without power to enter into the same; (3) that at that time Dr. Alexander did not submit to a medical examination and, hence, the defendant was without power to make the supposed contract; (4) that, in addition to the above defenses, the defendant has a good defense on the merits to plaintiff’s demand in excess of $236, in that it is provided by the by-laws of the Boyal Fraternal Union,, in force April 28, 1909, that death benefits shall be paid from the benefit fund, and that if said fund be not sufficient to pay all approved claims, the same shall be paid pro rata and shall be accepted by claimants in full satisfaction of their demands, and that at the time of the death of Dr. Alexander said benefit fund did not exceed the sum of $236; that before the commencement of this suit defendant offered to pay plaintiff the sum of $236, which plaintiff refused to accept for the sole reason that the amount was not large enough, and plaintiff thereby waived a legal tender thereof.
    It appears from the bill of exceptions that the parties stipulated as to certain facts, and that four letters offered by plaintiff were introduced, which was all the evidence considered by the court.
    It was stipulated and agreed, substantially, that on April 12, 1899, the Boyal Fraternal Union executed and delivered to Dr. Alexander the benefit certificate No. 6050, above mentioned; that on April 28, 1909, the defendant, Bankers Union of Chicago, executed and delivered to Dr. Alexander the so-called reinsurance contract above mentioned; that on said date said defendant was, and has been at all times since, a fraternal beneficiary society organized under Illinois laws (viz., the act of June 22, 1893, as amended); that Dr. Alexander died on November 6, 1910; that from April 28,1909, up to the time of his death all premiums and dues, contemplated or required to be paid by the terms of said reinsurance contract, were paid to the defendant or the payment thereof waived by the defendant; that Dr. Alexander at no time made or executed any application for membership in the defendant society; that he at no time submitted to any medical examination for admission into the defendant society; that when the so-called reinsurance contract was executed and delivered to him he was over sixty-six years of age; that the by-laws of the Boyal Fraternal Union, in force April 28, 1909, provided that death benefits should be paid from the benefit fund, and that if the benefit fund was not sufficient to pay all the approved claims they should then be paid pro rata and should be accepted by the claimants in full satisfaction of their demands; that on the day of Dr. Alexander’s death the benefit fund was not sufficient to pay all claims then approved and did not exceed the sum of $236; that before the commencement of this suit defendant offered to pay plaintiff the said sum of $236, which plaintiff refused to accept for the sole reason that the amount was not large enough.
    One of the letters introduced in evidence was from the defendant to Dr. Alexander, dated April 28, 1909, in which it was stated: “We endorse the enclosed letter of the Boyal Fraternal Union and heartily welcome you as a member of the Bankers Union. We agree to pay all benefits stated in your certificate as long as you keep it in force. * * Please pin our reinsurance contract' to your certificate. This is all that is necessary for you to do. We congratulate you on this beneficial change,” etc. The enclosed letter was also addressed to Dr. Alexander, and it was therein stated: “On account of the fact that the ‘life’ membership of the Boyal Fraternal Union has become very small, * * * the supreme council unanimously voted to transfer all its members holding ‘life’ certificates * * * to the Bankers Union. * * * Tour certificate has been reinsured by the Bankers Union, who will pay all benefits stated in your certificate, exactly according to its terms and conditions, as long as you keep it in force. * * * Please pin the enclosed reinsurance contract on your certificate and pay your monthly dues in the future to the Bankers Union instead of to the Boyal Fraternal Union. This is all you are required to do. We congratulate you on this change,” etc. The other two letters were from the Bankers Union, addressed to an attorney for plaintiff and written after the death of Dr. Alexander.
    John W. Burdette, for appellant.
    Duncombe & Behan, for appellee.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number,

   Mr. Justice Gridley

delivered the opinion of the court.

Several grounds for a reversal of the judgment are here urged by counsel for the defendant. We shall consider two. They are: That the defendant, as a fraternal beneficiary society organized under the Act of June 22,1893, as amended, relating to such societies (Hurd’s St. 1912, ch. 73, secs. 258-272, J. & A. TTTT 6646-6662) was without power or authority to make or perform the so-called “reinsurance contract,” dated April 28, 1909, (1) because said act does not confer authority upon such society to assume and agree to pay benefits stipulated to be paid by another society; and (2) because at the date of said contract Dr. Alexander was over sixty years of age, and hence, the contract was void and plaintiff cannot recover.

By the terms of said contract of April 28, 1909, it is provided that the defendant Society, “hereby insures and accepts into membership Lawrence Alexander, under certificate No. 6050, issued to him by the Boyal Fraternal Union, and agrees to pay all benefits stated in said certificate according to its terms and conditions, subject to the provisions of the constitution and by-laws of the Boyal Fraternal Union in force at this date, April 28, 1909.” By section 1 of the Act in question it is in part provided:

“A fraternal beneficiary society is hereby declared to be a corporation, society or association formed, organized or carried on for the sole benefit of its members and their beneficiaries and not for profit. Each society * ® may make provisions for the payment of benefits in case of disability and death, or of either, resulting from either disease, accident or old age of its members. Any such society, order or association may create, maintain and disburse a reserve fund in accordance with its constitution and by-laws. Such reserve fund, if any, shall represent certain prescribed accumulations or percentage, retained for the benefit of its members or their beneficiaries, and no part thereof shall be used for expenses, nor for any purpose except the payment of death and disability claims. The payment of such benefit in all cases being subject to compliance by the members with the contract rules and laws of society. * * * The funds from which the payments of such benefits shall be made * * * shall be derived from assessments or dues collected from its members. * * All such societies shall be governed by this act, and shall be exempt from the provisions of all insurance laws in this state, and no law hereafter passed shall apply to them unless they be expressly designated therein. * * * ”

By section 7 of the Act it is in part provided:

“Any ten or more persons, citizens and voters of this State, may associate themselves together for the purpose of forming a corporation under this act; for this purpose they may make, sign and acknowledge * * * a certificate of association, in which shall be stated the name or title of the proposed society; * * * the limits as to age of applicants for membership, which shall not exceed sixty years, and that medical examinations are required. * * * ”

We have been unable to discover anywhere in the act any provision which expressly or by implication confers upon such a society the power or authority to assume and agree to pay benefits contracted to be paid by another society. Counsel for plaintiff do not contend that such power is either expressly or impliedly conferred, but only that it is not expressly prohibited. In National Home Building Ass’n v. Home Sav. Bank, 181 Ill. 35, 40, it is said: “A corporation has no natural rights or capacities, such as an individual or an ordinary partnership, and if a power is claimed for it, the words giving the power or from which it is necessarily implied must be found in the charter or it does not exist. The law on this subject is stated by the Supreme Court of the United States in Central Transportation Co. v. Pullman Palace Car Co., 139 U. S. 24, as follows: ‘The charter of a corporation, read in the light of any general laws which are applicable, is the measure of its powers, and the enumeration of those powers implies the exclusion of all others not fairly incidental.’ ” In Wallace v. Madden, 168 Ill. 356, 360, referring to the Catholic Order of Foresters, a fraternal beneficiary society, it is said: “When the order adopted its constitution and by-laws and became organized under the statute it became subject to all the provisions of the statute. It became clothed with such power, and such only, as was conferred by the statute, and any provision of its constitution or by-laws inconsistent with the statute, or not authorized by the statute, would be a nullity.” In Fritze v. Equitable Building & Loan Society, 186 Ill. 183, 196, it is said: “The rule of construction applicable to statutory provisions is, ‘that every power that is not clearly granted, is withheld, and that any ambiguity in the terms of the grants must operate against the corporations and in favor of the public. ’ * * * If the power claimed is withheld, ‘it is regarded as a prohibition against the exercise of such a power.’ * * * Corporations can only exercise such powers, as may be conferred by the legislative bodies creating them, either by express terms or by necessary implication. Implied powers are presumed to exist in order to enable such bodies to carry out the express powers granted and to accomplish the purpose of their creation. By an implied power is meant one that is directly and immediately appropriate to the execution of the specific power granted, and not one that has slight or remote relation to it.” After a careful reading of the act in question, we are of the opinion that the making of the contract of April 28, 1909, whereby the defendant Society agreed to pay all benefits according to the terms and conditions of the certificate, issued to Dr. Alexander by the Boyal Fraternal Union, another society organized in another State, was ultra vires the defendant Society. We think that the contract is contrary to the whole scope and purpose of the act under which the defendant Society was organized. In this connection reference may be made to the following cases, decided by the courts of other States: Twiss v. Guaranty Life Ass’n, 87 Iowa 733; Whaley v. Bankers’ Union of the World, 39 Tex. Civ. App. 385; Bankers’ Union of the World v. Crawford, 67 Kan. 449; Gordon v. American Patriots, 141 S. W. Rep. (Tex. Civ. App.) 331. Furthermore, at the time the contract of April 28, 1909, was delivered to Dr. Alexander, in which contract it was stated that the defendant Society “hereby insures and accepts into membership Lawrence Alexander,” he was considerably over the age of sixty years, and the defendant Society was absolutely without power to admit into membership and insure a man who was over that age, because of the statutory prohibition contained in section 7 of the Act above mentioned. (Steele v. Fraternal Tribunes, 215 Ill. 190, 194; State v. Bankers’ Union of the World, 71 Neb. 622, 632.) Counsel for plaintiff place considerable reliance upon the case of Williams v. Bankers’ Union of Chicago, 166 Ill. App. 495. In that case it appears that the deceased had been a member of a Nebraska fraternal benefit society, which was reorganized into an Illinois fraternal beneficiary society bearing a slightly different name, and the latter society continued the business of the former. The deceased took a medical examination on becoming a member of the Nebraska society, but was not again examined after the reorganization. It further appears from the opinion that the plea of the defendant of ultra vires was withdrawn before the trial and that question was not considered by the court.

It is contended by counsel for plaintiff that even though the contract be regarded as ultra vires, yet the defendant society is estopped from raising that defense because Dr. Alexander from the date of the contract, April 28, 1909, up to the time of his death paid all premiums and dues to the defendant Society and the Society had the full benefit of the performance of the contract on his part. The same point was made in the case of Steele v. Fraternal Tribunes, 215 Ill. 190, 193, and decided adversely to counsels’ contention. The Court in that case said:- “A contract of a corporation which is ultra vires in the proper sense of that term,—that is to say, outside the object of its creation, as defined by the laws of its organization, and therefore beyond the powers conferred upon it by the legislature,—is not only voidable, but wholly void and of no legal effect. * * * The contract could not be ratified by either party because it could not have been authorized by either. No performance by the parties could give the unlawful contract validity or become the foundation of any right of action upon it.” In Fritze v. Equitable Building Loan Society, 186 Ill. 183, 199, it is said: “The doctrine, however, that a corporation cannot avail itself of the defense of ultra vires when a contract has been in good faith performed by the other party and the corporation has had the full benefit of its performance, was never held to have any application where such contract is immoral or illegal or prohibited by statute or where its enforcement would be against public policy.” See also National Home Building Ass’n v. Home Sav. Bank, 181 Ill. 35; Converse v. Emerson, Talcott & Co., 242 Ill. 619; Durkee v. People, 155 Ill. 354; United States Brewing Co. v. Dolese & Shepard Co., 259 Ill. 274, 278.

As appears from plaintiff’s statement of claim she sought to recover the sum of $1,100 by reason of the so-called reinsurance contract of April 28,1909, issued by the defendant Society. She filed no other claim, or count, that she was entitled to recover back from the defendant Society any moneys paid to it by Dr. Alexander from April 28, 1909, up to the time of his death, and it is not shown by the evidence what sums he did pay the defendant Society, and we, therefore, express no opinion on this question. We hold, however, that there can be no recovery on said so-called reinsurance contract, and that the trial court erred in overruling defendant’s motion for a new trial and in entering the judgment, and, accordingly, the judgment of the Municipal Court will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Smith

text:
    Catherine Cronin, Defendant in Error, v. Court of Honor, Plaintiff in Error.
    Gen. No. 19,692.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebror, § 607

      —when objection to special findings waived. Plaintiff in error can not urge that special findings of the jury were not warranted by the evidence where the point was not made or raised on its motion for a new trial.
    2. Witnesses, § 167*—privileged communications. The rule as to privileged communications between a physician and patient is for the benefit of the patient and not the physician, and the physician is not entitled to claim the privilege where the patient has waived it.
    3. Witnesses, § 167*—when physician not privileged from testifying as to communication with patient. Where a member of a benefit society waived privileged communications between himself and his physician in his contract of insurance, held in a suit against the society for the insurance that the action of the court in allowing the physician, who was called as a witness for defendant, to refuse to testify on the ground of privilege was reversible error.

      Error to the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed July 14, 1914.
    Statement of the Case.
    Action by Catherine Cronin against Court of Honor to recover insurance on a certificate of insurance issued to Cornelius Cronin, in which the plaintiff was named as beneficiary. A judgment was recovered by the plaintiff for $1,000 and costs. To reverse the judgment, defendant prosecutes a writ of error.
    Francis J. Sullivan, for plaintiff in error; William B. Risse, of counsel.
    P. F. Murray, for defendant in error.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Smith

delivered the opinion of the court.