author: Mr. Justice Graves

text:
    National Union v. Margaret E. Keefe, James E. Keefe and Celeste Keefe. Margaret E. Keefe and Celeste Keefe, by Joseph F. Purcell, guardian ad litem, Appellants, v. National Union and James E. Keefe, Appellees. Separate Appeals.
    Gen. No. 16,154.
    Gen. No. 16,155.
    1. Interpleader — status of complainant. Where money is paid into court under a strict hill of interpleader the complainant must stand absolutely neutral as to the rights of the several claimants to the fund but when the bill is merely in the nature of a bill of interpleader, complainant may litigate the right to affirmative relief.
    , 2. Interpleader — when complainants are discharged. Where complainants have interpleaded and the fund in question has been brought into court they should be discharged if no affirmative relief is sought.
    3. Interpleader — when complainant may remain in case after payment of fund into court. Where the complainant in a bill of interpleader, on paying into court the fund due complainants, seeks affirmative personal relief, he may be allowed to remain in the case to litigate such right.

      i. Interpleader — what will not prevent affirmative relief for complainant. Affirmative personal relief will not be denied the complainant in a bill of interpleader after' he had paid the sum due claimants into court because of the objection that such relief will affect the determination of the claimants’ rights to the fund involved.
    5. Interpleader — where answer alleges ultra vires act, complainant may remain in case. Where an answer to a bill of inter-pleader, under which the complainant paid into court the sum due under a benefit policy, alleges that the complainant had no power to designate one of the claimants as beneficiary, the complainant may properly be permitted to remain in the case to have a determination of the question of ultra vires thus raised.
    6. Benefit societies — designation of beneficiary. The designation of a brother as beneficiary under a benefit certificate is within the power -of the benefit society issuing such certificate, where the policy and by-laws declare that the fund shall be paid “to the husband, wife, orphans, families, or other dependents” as the member may direct, and where it further appears that the beneficiary had taken special charge of the insured prior to his marriage, providing for his material wants and looking after his moral well-being.
    7. Benefit societies — vested interests of beneficiary. There are no vested interests in the fund designated in a benefit certificate until the death of the member.
    8. Benefit societies — designation of beneficiary. The charter, by-laws, rules, etc., of a benefit society in force at the time of the death of a member, control the determination of the- validity of the designation of a beneficiary.
    9. Benefit societies — statutory regulation. Where a statute enlarges the class of persons who may be designated as beneficiaries of the members of certain benefit societies, the same becomes a part of the charter without formal adoption.
    10. Benefit societies — when brother of member may be beneficiary. Where at the time of the death of a member of a benefit society the charter as broadened by statute permits “relative by blood” to be named as beneficiaries, a brother is a proper beneficiary.
    Appeal from the Circuit Court of Cook county; the Hon. Geokge A. Carpenter, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed on rehearing.
    Opinion filed August 12, 1912.
    Cannon & Poage, for Margaret E. Keefe, appellant.
    John B. Heinemann, for Joseph F. Purcell, guardian ad litem for Celeste Keefe, appellant.
    William A. Doyle, for appellee, James E. Keefe; Joseph J. Thompson, of counsel.
    Charles J. Kavanagh, for appellee, National Union; George P. Kirby, of counsel.
   Mr. Justice Graves

delivered tlie opinion of the court.

Appellee, the National Union, a mutual benefit society, organized under the laws of Ohio and doing business there and elsewhere, including the State of Illinois, commenced this suit in the Circuit Court of Cook county by filing its bill of interpleader, acknowledging its liability on a benefit certificate for $5,000, issued in 1892 to Edward F. Keefe, in which one James E. Keefe, a brother of Edward, was named as beneficiary, and alleging that the said James E. Keefe and one Margaret E. Keefe each claimed the fund; that the said James claimed as the original and only designated beneficiary and that Margaret claimed as a substituted beneficiary, and asking that the said James and Margaret be required to-come into court and litigate between themselves their respective claims to the fund and that the complainant be discharged, upon bringing the fund into court, from any further liability to either of such claimants.

Both James and Margaret answered this bill, setting out their respective claims substantially as averred in the bill, and the said Margaret setting up the further claim that the designation of James was ultra vires the power of the society in that he did not come within any of the classes of persons for whose benefit the society might lawfully issue benefit certificates. The complainant thereupon filed an amended bill, and after-wards filed an amendment to the amended bill, in which amended bill as amended it is averred that many certificates of a like character to the one in question had been issued by it that were still outstanding, the valid-, ity of which was likely to be affected by a determination of the question of ultra vires raised by the answer of Margaret, and adding to the prayer in the original bill a prayer to be allowed to remain a party to this suit for the purpose of litigating the question of ultra vires so raised. By the last amendment Celeste Keefe, the minor child of Edward, was also made party-defendant.

The parties defendant having all interplead, setting np their respective claims to the fund, a decree was entered directing the complainant to bring into court the fund, less certain costs, which being done, the complainant was discharged by the terms of the decree from all further liability in relation to the fund, but was allowed to remain a party to the suit for the purpose of litigating the question of the power of the society to make persons beneficiaries who were standing in relation to its members the same as James stood to Edward. By the final decree of the Circuit Court the fund in question was awarded to James as the lawful beneficiary.

Two separate appeals from this decree were perfected, one by Margaret and one by Celeste by her guardian ad litem. These appeals have been consolidated and were heard and will be disposed of together.

The claim of Margaret that she had been substituted as beneficiary in the place of James has been abandoned, but reversal of the decree is asked for the reasons that complainant is not shown to be indifferent between the claimants, but, on the contrary, has taken and is taking an active part in this case in behalf of the claimant James, and against the other two claimants, Margaret and Celeste, and because James did not and does not come within any of the classes that could lawfully be made beneficiaries.

In order to maintain a strict bill of interpleader the complainant must stand absolutely neutral as to the rights of the several claimants to the fund,, and when such claimants have interplead, and the fund in question has been brought into court, the complainant should be discharged out of the case and can no longer be heard in it. Where, however, the complainant in a bill seeks some affirmative relief that is personal to such complainant, the bill, while in the nature of a bill of interpleader, is not strictly one, and the complainant may properly be allowed to remain in the case for the purpose of litigating his right to such affirmative relief. Brocklebank v. Lasher, 109 Ill. App. 627; Heath v. Hurless, 73 Ill. 323.

It is no valid objection to such a bill asking affirmative relief that such relief, if obtained, may affect the determination of the rights of the several claimants to the fund involved.

The case at bar furnishes a good illustration of the distinction between strict'bills of interpleader and bills in the nature of bills of interpleader. The first bill filed in this case was a strict bill of interpleader. It disclosed no interest in the complainant, and sought no affirmative relief, but when the power of the complainant society to designate as beneficiaries persons standing in relation to the members of the society the same as James stood to Edward was challenged by the answer of Margaret, the complainant became vitally interested, and amended its bill to show in what manner it was interested and to ask that the question of ultra vires so raised be adjudicated. The amended bill praying for that affirmative relief was a bill in the nature of a bill of interpleader, and the complainant was properly allowed to remain in the case for the purpose of having the question of ultra vires determined. The fact that the complainant has vigorously asserted its right to designate as beneficiaries persons standing to members in a like relation existing between James and Edward is, in view of the averments in the bill, no evidence of partiality on the part of the complainant for James.

In order to determine whether the society could properly and legally designate James E. Keefe as beneficiary in the certificate in question, and whether, being so designated, he was at the death of Edward, the member, entitled to receive the fund in question, it is necessary to know the history of the transaction.

On March 23, 1892, Lincoln Council of the appellee, National Union Benefit Society, located at Chicago, Illinois, admitted to full membership in the society Edward F. Keefe, then an unmarried man. In due time a benefit certificate for $5,000 was issued and delivered to him by the society, in which James E. Keefe was named as beneficiary. James, the beneficiary so named, was the brother of Edward, the member. Upon the delivery of this certificate to Edward, he in turn delivered it to James, who retained possession of it continuously until it was introduced in evidence in this ease. There is proof in the record tending to show that Edward joined the society and obtained the certificate, naming James as beneficiary, in pursuance of an agreement with James made in consideration of moneys already advanced and to be advanced by James to Edward, and the agreement by James that he would pay all future dues and assessments on the certificate, and that the moneys to be advanced were advanced and the dues to be paid were paid by James according to such agreement. In 1897 or 1898 Edward was married to the appellant, Margaret E. Keefe, and as a fruit of that marriage, and before the death of Edward, appellant, Celeste, was born. The appellee, the National Union, was chartered under the laws of Ohio, May 14, 1881. At that time the statutes of Ohio provided that societies of its character might make benefits afforded by them payable to “the families or heirs of any member at his decease.” The objects of this society, as expressed in the charter, were, in part, as follows:

‘ ‘ Section 3. It shall be a secret society formed for the mutual benefit of the members thereof, and their families exclusively, pursuant to a code of regulations adopted by it for its government.” * * *
“Division b, section 4. To give material aid to the meml ets and their dependents.” * * *
“Division e, section 4. To establish a benefit fund from which upon sufficient proof of death of a beneficial member of the order who has complied with all its requirements a sum not exceeding $5,000 shall be paid to the husband, wife, orphans, families, or other dependents as the member may direct.”

In 1887 the articles of incorporation were so amended as to provide, in part, as follows:

Section 3. “It (National Union) shall he a secret order formed and conducted for the mutual benefit of its members and their families exclusively, pursuant to such code of regulations by whatever name called as may be adopted by its members in session assembled as the senate of the National Union.”

The other provisions above quoted were not changed. In June, 1887, after this change in the articles of incorporation, and long before Edward F. Keefe became a member of the society, the society adopted as a part of its code of regulations, among other things, the following :

Art. 2. “The object o’f the order shall be * * *”
Sec. 5. “To establish .a benefit fund from which upon sufficient proof of death of a beneficial member of the order who has complied with all its lawful requirements, a sum not exceeding five thousand dollars shall be paid to such member or members of the family of the deceased who are related to him by consanguinity or affinity as may have been designated by the member in accordance with the laws of the order.”

Prior to the time James was married, which was in 1890, his brother, Edward; his brother, John, his sister, and their father and mother all lived together in one home, as one family, which was maintained by James and John, the rest of the family not being producers. After James was married, he set up a' separate home for himself, and from that time until after Edward became a member of the society, he was furnished everything he had, including board, clothes, spending money and tuition in college by James. After - Edward graduated James bought a business for him and “started him in on his own responsibility.” In fact, James seems to have regarded Edward, who was his junior, not only as a member of his immediate family, but as his own special charge, not only providing for his material wants, but looking out for his moral well being as well, for the evidence discloses that at one time Edward started to work in a saloon without the knowledge of James, and when James found it out he induced him to abandon the job, insisting that a saloon was not a proper place for him to work.

Upon the authority of Tepper v. Royal Arcanum, 61 N. J. Eq. 638; Faxon v. Grand Lodge, 87 Ill. App. 262; Klotz v. Klotz, 15 Ky. Law Rep. 183; Old Peoples’ Home Society v. Wilson, 176 Ill. 94; Danielson v. Wilson, 73 Ill. App. 287; Lane v. Lane, 99 Tenn. 639; Hosmer v. Welch, 107 Mich. 470; Wilson v. Cochran, 31 Tex. 677; Hoffman v. Grand Lodge, 73 Mo. App. 47, and Ferbrache v. Grand Lodge, 1 Mo. App. 268, we think that, when Edward became a member, he and James were members of the same family within the meaning of the language of the charter and that the laws of Ohio and the charter, constitution, by-laws, rules and regulations of the society were each and all broad enough, under the facts disclosed by this record, to permit of the designation of James as the beneficiary of Edward, unless the words “or other dependents” in division “e” of section 4 of the charter limits the beneficiaries to dependent members of the family. We do not think that language should be so construed. Similar language in the charters of like societies have been construed to authorize the designation of members of the family as beneficiaries without regard to whether such designated beneficiaries were “dependent” or not. Manley v. Manley, 107 Tenn. 191; Lane v. Lane, 99 Tenn. 639; Supreme Assembly Royal Soc. of Good Fellows v. Adams, 107 Fed. 535; Klotz v. Klotz, 15 Ky. Law Rep. 183.

The foregoing authorities seem to be based upon and to be in consonance with the rule laid down in Bacon on Benefit Societies, section 247, i. e., “In determining whether the designated beneficiary comes within the class specified or not, the charter and by-laws shall be construed liberally, so as to carry out the benevolent purpose of the organization.” We, therefore, conclude that the original designation of James as beneficiary was clearly within the law and within the charter power, by-laws, rules and regulations of the society then in force. The validity of the original designation is, however, not the controlling question in determining who is entitled to the benefit fund in this case. The vital question is, was James at the time of Edward’s death a person who might properly be designated as his beneficiary? While a person may be originally a properly designated beneficiary, he acquires no vested rights in the benefit fund thereby, until the death of the member, and if at the death of the member he does not come within the class of persons who could then, under the law and the charter, by-laws, rules and regulations of the society, be designated as a beneficiary, he cannot take the fund.- Neither does the heir of a member of such society, who will take the fund, if no legal designation of a beneficiary is made, have a vested interest in the fund until the member dies, and if at the death of the member a named beneficiary exists who then can be properly designated as such, he and not the heirs at law is entitled to-the fund. It-is the law and the charter, by-laws, rules and regulations of the society in force at the time of the death of the member that must control in the determination of the question of the validity of the designation of the beneficiary. Murphy v. Nowak, 223 Ill. 301; Royal Arcanum v. McKnight, 238 Ill. 349; Grimme v. Grimme, 198 Ill. 265; Baker v. Prebis, 185 Ill. 191; Morey v. Monk, 145 Ala. 301.

Even when, at the time a designation of a beneficiary is made, the person so designated does hot come within any of the classes of persons who could lawfully be made beneficiaries and by subsequently enacted valid laws, that have been complied with by the society, and by altered charter, by-laws, rules and regulations of the society the classes of persons who may be made beneficiaries are so extended as to include the beneficiary so previously named, and the membership and certificate are kept alive by the payment by the member, and the acceptance by the society, of all dues and assessments thereafter maturing and a compliance with such subsequently enacted laws, by-laws, rules and regulations and altered charter, such prior designation is validated, then the rights, duties and obligations of all parties are the same as if the new laws, by-laws, rules, regulations and charter had been in force when the designation was first made, or as if the same beneficiary has been redesignated after such new laws, by-laws, rules, regulations and charter were in force. Morey v. Monk, 145 Ala. 301; Park v. Modern Woodmen of America, 181 Ill. 214-228; Bacon on Benefit Societies (3d Ed.), par. 46; Niblack on Benefit Societies (2d Ed.) 162.

Edward died on September 17,1906, leaving him surviving his brother, James, his wife, Margaret, and his daughter, Celeste. From the time Edward first became a member of the society, until his death, he continued to be a member in good standing, and at his death the certificate was in full force and no change in beneficiaries had been made in accordance with the rules of the society.

The application of Edward for membership in this society contained, among other things, the following: “I agree to make punctual payments of all dues and assessments for which I may become liable and conform in all respects to the laws, rules and usages of the order now in force or which may hereafter be adopted by the same.” The certificate contains, among other conditions, the following: ‘ ‘ That this friend complies in the future with the laws, rules and regulations controlling said benefit fund or that shall hereafter be enacted by the senate to govern said council and fund. The application of the member, a copy of which is hereto attached, is hereby made a part of this certificate.”

In 1893 the general assembly of Illinois enacted a law to regulate societies of the character of the “National Union,” in which it was provided that death benefits might be made payable" to the families, heirs, blood relations, affianced wife of or persons dependent upon the member.” This provision of the Illinois statute was in 1894 substituted by the society for Art. 2, sec. 5, of the code of regulations of the society, and in 1896 the same provision, above quoted from the laws of Illinois, was incorporated in the laws of Ohio, and in 1899 the society enacted rules and regulations in compliance with that statute.

The statute of Ohio of 1896 was a new act covering the entire subject of fraternal beneficiary societies, and defines such a society to be “a corporation society or voluntary association, formed or organized and carried on for the sole benefit of its members (and) their beneficiaries,” and provided further that "each association shall have a lodge system with ritualistic form of work and representative form of government,” and that payment of death benefits shall be to the families, heirs, blood relatives, affianced husband or affianced wife of or to persons dependent upon the members.” That act further provided that “such associations shall be governed by this act.” While section 3630 of the laws of Ohio of 1881, under which the National Union was chartered, did not expressly and in terms provide for the formation of corporations of its character with a lodge system and a representative form of government, .such system and form of government and ritualistic form of work was not prohibited, and section 3250 of that act did provide for the adoption by such corporations of by-laws “for their government not inconsistent with the regulations of the corporations.” It is not pointed out by counsel for appellants and we are unable to discover how such lodge system and ritualistic form of work and representative form of government is inconsistent with the provisions of section 3630 or 3250, or with state regulations of corporations. Certain it is that the National Union did adopt a lodge system and a ritualistic form of work and a representative form of government, and that when the law of 1896 was passed it was recognized by the state authorities of the state of Ohio as an existing fraternal benefit association. As there is nothing in this record to show the existence at that time in Ohio of other societies of the same character having a lodge system, ritualistic form of work and representative form of government, we are bound to assume that the legislature of that state had this appellee in mind when the law of 1896 was passed, in which it was provided that such societies might continue in business, provided they complied with the provisions of that act, regulating annual reports, etc. The proof shows the National Union did continue in business in Ohio, made reports under the provisions of the law of 1896, and that it was licensed so to do business by the State of Ohio, under the provisions of that law until the passage of the law of 1901 by the legislature of that state.

This new statute of 1901 contained, among other provisions, the following:

“Section 1. (Fraternal Beneficiary Associations defined.) Any corporation, society, order or voluntary association without capital stock, organized and carried on solely for the mutual benefit of its members and their beneficiaries, and not for profit, and having a lodge system with ritualistic form of work and representative form of government and which shall make provision for the payment of death benefits, is hereby declared to be a fraternal beneficiary association.”
“Sec. 1. (Exemptions.) Except as herein provided, such association shall be governed by this act and shall be exempt from all provisions of the insurance laws of this state not only in government relations with the state, but for every other purpose, and no law hereafter passed shall apply to them, unless they be expressly designated therein.”
“Sec. 6. (Beneficiaries.) The payment of death benefits shall be confined to the family, heirs, relatives by blood, marriage or legal adoption, affianced husband or affianced wife, or to a person or persons dependent on the member.”
“Sec. 8. (Certificate.) Every certificate issued by any association shall specify the maximum amount of benefit provided thereby, and the conditions governing the payment thereof, and shall provide that the certificate, the charter or articles of association, the constitution and laws of the association and the application for membership and medical examination, signed by the applicant, shall constitute the contract between the association and the member and copies of the same certified by the secretary of the association or corresponding officer shall be received in evidence of the terms and conditions of the contract; and any changes, additions or amendments to said charter or articles of association, constitution or laws duly made or enacted subsequent to the issuance of the benefit certificate shall bind the member and his beneficiaries and shall govern and control the contract in all respects the same as though such changes, additions or amendments had been made prior to and were in force at the time of the application for membership.”
“Sec. 13. (Powers Retained — Reincorporation — Amendments.) Any association now engaged in transacting business in this state may exercise, after the passage of this act, all of the rights conferred thereby, and all of the rights, powers and privileges now exercised or possessed by it under its charter or articles of association not inconsistent with this act, or it may be reincorporated hereunder. But no association already organized, shall be required to reincorpórate hereunder, nor shall it be required to adopt the rates prescribed herein for new associations, in order to avail itself of the privileges of this act, and any such association may amend its articles of association from time to time in the manner provided therein, or in its constitution or laws, and all such amendments shall be filed with the superintendent of insurance and shall become operative upon such filing unless a later time be provided in such amendments, or in its articles of association, constitution or laws.”
“Sec. 16._ (Annual License.) Associations which are now authorized to transact business in this state may continue such business until the first day of April next succeeding the passage of this act, and the authority of such associations may thereafter be renewed annually, but in all cases to terminate on the first day of the succeeding April. For each such license or renewal, the association shall pay the superintendent of insurance twenty-five dollars. A duly certified copy of such license shall be prima facie evidence that the licensee is a fraternal beneficiary association within the meaning of this act.”

This new act was a complete act “Regulating Fraternal Benefit Associations,” and in terms repealed certain former acts on that subject. While section 3630 of the laws of Ohio of 1881 was not repealed by express terms, it was repealed by necessary implication to the extent that ho association like the appellee, as then constituted, could thereafter be formed-or exist under its provisions.

Such associations could only be formed or continue in business by complying with the act of 1904. It follows that if the appellee association had any existence at all after the act of 1904 went into force, it was because it had complied with and brought itself under the provisions of that act.

It will be observed that by section 13, above quoted, this association and all like associations then engaged in transacting business in the State of Ohio were authorized to exercise all the rights, powers and privileges conferred by the act, and all the rights, powers and privileges exercised under its charter or articles of association not inconsistent with the act, if such associations brought themselves within the provisions of the act. Or they had the option to reincorporate under the act, but they were not required to do so.

By section 16, above quoted, it is provided that such societies, who seek to continue business under tbe act and without reincorporating, must annually, before the first of April in each year, pay to the State Superintendent of Insurance the sum of twenty-five dollars, and receive a license, and that such license should be prima facie evidence that the licensee was a fraternal association witliin the meaning of the act. This society exercised its option to continue its business without reincorporating, but by paying to the Superintendent of Insurance the sum of twenty-five dollars annually, and the same was accordingly paid and a license was duly issued to it under the provisions of the act of 1904 for the years 1905 and 1906. The society was also duly licensed to do business in the State of Illinois for the same period. The Ohio license for the year 1906 was, in part, as follows:

“I, A. I. Vorys, Suprintendent of Insurance of the state of Ohio, do hereby certify that the National Union, located at Toledo in the state of Ohio has complied in all respects with the requirements of the act of the General Assembly, passed April 26, 1904, regulating Fraternal Benefit Associations, and other laws applicable to it, and is authorized to transact its appropriate business of insurance in this state, as prescribed in said act during the current year. * * *”

The truth of this certificate is nowhere denied, and it being prima facie evidence that the holder was a fraternal association within the.meaning of the act, for the purposes of this case, it must be regarded as an established fact that the society had complied with the requirements of the act of 1904, and was authorized to do business under and in accordance with the provisions of it.

When a benefit association is formed under a general act, the statute under which it is chartered must be read into and regarded as part of the charter itself. People v. Chicago Gas Trust Co., 130 Ill. 268; City of Danville v. Danville Water Co., 178 Ill. 299-306; Wood v. Mystic Circle, 212 Ill. 532-537; Wallace v. Madden, 168 Ill. 356. And when it is mutually agreed between the member and the society that the member will be governed and will abide by all subsequently enacted laws, such subsequently enacted laws, as soon as, and while, they are in force must be read into and treated as part of the organic law of the society. Supreme Commandery of the Knights of the Golden Rule v. Ainsworth, 45 Ala. 449; Gilmore v. Knights of Columbus, 77 Conn. 58, and numerous cases there cited; Daughtry v. Knights of Pythias, 48 La. Ann. Rep. 1204; Tisch v. Protected Home Circle, 72 Ohio St. 233.

When certificates are issued by benefit societies under stipulations of that character, it has been frequently held that no one has any vested interest in the benefit fund and that subsequently enacted laws changing the classes of persons who may be made beneficiaries are binding on all persons concerned. Mathewson v. Supreme Council Royal Arcanum, 146 Mich. 671, and cases there cited. On this subject Niblack on Benefit Societies (2d Ed.), 162, says:

“Where the law (statute) relating to the classes of beneficiaries who may take the fund of a society has been changed after the organization of the society, so as to include other beneficiaries than those first enumerated, the designation by a member of a beneficiary from an added class of beneficiaries is a designation to which the society has a right to assent, and does assent by issuing a certificate to the member payable to such beneficiary with knowledge that the beneficiary is one of the added class. A mutual benefit society was incorporated under a law providing for the accumulation of a fund ‘for the purpose of assisting- the widows, orphans, or other persons dependent upon deceased member.’ Afterward, the law was so amended as to read, ‘for the purpose of assisting widows, orphans, and other relatives of the deceased members.’ The society did not adopt the statute amending the act under which it was incorporated. A person who became a member after the amendment of the law designated, as his beneficiary, his mother, who was not then, .or at any time afterward, dependent upon him for support. Subsequently the member married, and died in good standing in the society, leaving his widow and his mother surviving him. It was held under these facts that the amending statute needed no formal adoption by the society, that the designation of his mother was such as he could legally make at that time, as the law which permitted a relation, merely, not being necessarily a dependent, to be designated, was in force when he made his designation, and that his mother was entitled to receive the fund. Again: ‘Where the organic law of a society, the statute under which it is incorporated, is amended by an act which does not require formal adoption by existing societies, and the powers of societies are thereby enlarged by adding to the persons who may become beneficiaries, a member may, with the consent of the society, make a new designation which can only be lawfully made by virtue of the later statute. In such case it cannot be said that the society was exercising, and was only authorized to exercise, the more limited powers which it had under the earlier statute.’ ” Niblack on Ben. Soc. (2d Ed.), par. 230.

Bacon in his work on Benefit Societies (3d Ed.), in par. 46, says:

“A statute enlarging the powers of a beneficiary society takes effect without formal adoption by the society, and when, after such legislation, an application for membership is accepted it cannot be said, in the absence of any express determination on the part of the association, that it was exercising the more limited powers under the earlier statute.” Again: “It has been held that the association is not obliged to formally accept the provisions of an enlarging statute which applies to certificates issued before the act was enacted.” Bacon on Ben. Soc. (3d Ed.), par. 244a.

See also Supreme Council of L. of H. v. Neidelet, 81 Mo. App. 602; Baldwin v. Begley, 185 Ill. 180-188.

We think the society did all it was called upon to do to bring itself under the provisions of the laws of Ohio of 1904, above quoted, and that after the passage of that law and the obtaining of the license from the Superintendent of Insurance the provisions of the law of 1904 must be read into the charter of the society. That law so read into the charter broadens it so as to authorize the payment of death benefits to the family, heirs, relatives by blood, marriage or legal adoption, affianced husband or affianced wife of or to a person or persons dependent on the member when designated as beneficiaries. The charter, as so amended, and the law by which it was so amended, were both in force when Edward died. The charter and by-laws of the society at that time authorized the designation of the families, heirs, blood relations, affianced wife or persons dependent upon the member as beneficiaries. There was, therefore, at the time of the death of Edward, no requirement, either in the law under which the association was chartered or in the charter, constitution, by-laws, rules or regulations of the society, that the beneficiary should be of the household of or dependent on the member. James, the beneficiary named, being a brother of Edward, the member, came within the class described as blood relations, and was in every way a proper person to be designated as the beneciary within the requirements of the law of Ohio, where the association was organized, the law of Illinois, where Edward became a member, and the charter, constitution, by-laws, rules and regulations of the society as the same were in effect at the time of the death of Edward.

We conclude, therefore, that James, when he was designated as a beneficiary of Edward, was a member of the same family with Edward, in the sense in which that term is used in the charter of the society, and that he was properly designated as a beneficiary, and that he, being a blood relation of Edward, was at the time of the death of Edward' a proper beneficiary and entitled to recover the fund decreed to him by the Circuit Court.

The decree of the Circuit Court is, therefore, affirmed.

Decree affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    George F. Tierney, a minor, by Eveylin M. Tierney, his next friend, Defendant in Error, v. Marshall E. Sampsell, sole surviving receiver of the Chicago Union Traction Company, Plaintiff in Error.
    Gen. No. 16,359.
    1. Pleading — right to file additional pleas. The granting of leave to file proper amended or additional pleas is usually within the discretion of the trial court, subject to review for an abuse of discretion.
    2. Pleading — necessity of showing reason for ¡delay in motion to file additional plea. When the issues of a case have been settled for a long time and the case is reached for, or is on trial, motions for leave to file amended or additional pleas that inject new issues, or unsettle the issues already made, should not be allowed without a showing of some reason or excuse for the delay.
    3. Receivers — when motion to file additional plea comes too late. Where a personal injury suit against alleged street railway receivers had been at issue, under a general issue, for two years and a motion for leave to file a special plea denying that a receiver owned or operated the street railroad at the time of the injury is filed and is not called up until the jury is in the jury box, the delay In filing is not excused by the fact that until the Supreme Court handed down a certain opinion it had been supposed that the defense could be made under the general issue where such opinion had been handed down more than a year and a half before the motion was filed.
    4. Street railroads — pleading. Where it is averred in a declaration against a street railway company that when a car was approaching a switch at a high rate of speed, a switch was open and that the servants in charge of the car negligently failed to see the condition of the switch and negligently failed to slacken the speed of the car as it came upon the switch, thereby causing injury to a person standing nearby, the material averments are the high rate of speed and negligence in failing to slacken the speed, and the averment as to the failure to see the condition of the switch need not be proved.
    5. Street railroad — questions for jury. Where there is evidence that a street car approached and ran on a switch without lessening a high rate of speed, without being derailed and without more commotion than is usual when a car is going at a high rate of speed, and a person standing nearby is injured, it is for the jury to say whether the switch was open; whether the speed was a high and dangerous speed under the circumstances; whether the speed was slackened; whether the operation of the car was negligent, and whether it was because of such negligence that the plaintiff was injured.
    6. Street railroads — when presumption does not rest upon another presumption. Where it is claimed that a street car without slackening a high rate of speed ran on an open switch, whereby a person standing nearby was injured, and there is an immaterial allegation that the servants failed to see the condition of the switch but only the fact that the switch was open is left to be presumed from the circumstances, in finding the company guilty the rule prohibiting the resting of one presumption another is not violated.
    7. Damages — when $11,000 for injury to foot is excessive. The right foot of a boy ten years of age was crushed in a street railway accident, necessitating the amputation of the toes and part of the metatarsal bones. Tetanus followed and up to the time of the trial the foot was tender. The wound had several times broken open; the boy walked with a limp and suffered some pain in the foot, ankle and heart, the foot was fairly serviceable. Held, a verdict for $11,000 was excessive, a remittitur of $3,000 would be required.
    Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed on remittitur.

    Opinion filed August 12, 1912.
    John A. Rose and Frank L. Kriete, for plaintiff in error; W. W. Gurley, of counsel.
    Quin O’Brien and Lawrence W. Potter, for defendant in error; M. E. Ames, of counsel.
   Mr. Justice Graves

delivered the opinion of the court.

The count in the declaration on which this case was tried charges that on the ninth day of December, 1905, the Chicago Union Traction Company was in the hands of receivers, one of whom was the appellant; that such receivers in their capacity as such were there, through their agents and servants, operating a certain street car propelled by electricity in a northwesterly direction along Elston avenue and approaching Irving Park boulevard in Chicago at a high and dangerous rate of speed; that appellee was there standing at the corner of Elston avenue and Irving Park boulevard waiting to board that car there as a passenger; that about fifty-feet south from Irving Park boulevard in the street ear track on Elston avenue there was a switch used by-defendants to divert cars from their street car tracks on Elston avenue to their street car tracks on Irving Park boulevard; that when this car was approaching that switch at a high rate of speed, the switch was open; that the servants of defendants then and there in charge of said car carelessly and negligently failed to see the condition of said switch and paid no heed whatever to the same, and carelessly and negligently failed to slack the speed of said car as it came upon said switch, and that the said car was by said open switch diverted from the track on Elston avenue along said switch leading into Irving Park boulevard, and there struck and injured appellee.

This count was filed on December 15, 1906. A plea of the general issue was filed by plaintiff in error and ■the other receivers of Chicago Union Traction Company. After the case had been at issue for about two years, and on November 25, 1908, plaintiff in error, then being the only remaining receiver, entered his motion for leave to file a special plea denying that at the time and places of the injury complained of he owned, controlled or was operating the street railway or car in question. It does not appear that this motion was called to the attention of the court until both parties had announced their readiness to proceed to trial and a jury had been called into the jury box. The motion was then called up, heard and denied, and the trial proceeded. This motion was not supported by any showing why it was not filed earlier. The verdict of the jury was for defendant in error for $12,-695. A remittitur of $1,695 was filed by defendant in error, and judgment was entered for $11,000. The denial of the motion of plaintiff in error for leave to file the special plea is assigned for error.

The granting of leave to file proper amended or additional pleas is usually within the discretion of the trial court, subject to review for an abuse of such discretion. City of Chicago v. Cook, 204 Ill. 373; Clause v. Bullock Printing Co., 20 Ill. App. 113; Ferguson v. Miles, 3 Gilm. 358; Lumber Co. v. Daugherty, 125 Ill. App. 258; Telephone Co. v. Likes, 124 Ill. App. 459; Byerly v. Wilson, 123 Ill. App. 662.

When such leave is asked for at a proper time it should not as a rule be denied, but when the issues in a case have been settled for a long time, and the case is reached for, or is on trial, motions for leave to file amended or additional pleas that inject into the case new issues or unsettle the issues already made up, should not be allowed without a showing of some reason or excuse for the delay in making the motion. City of Chicago v. Cook, 204 Ill. 373; Lumber Co. v. Daugherty, 125 Ill. App. 258. The proposed plea, if filed, would have added an entirely new feature to the case and one which the plaintiff might well have been then unprepared to meet. The only excuse offered for the delay in presenting the defense sought to be set up by the proffered plea is that, until the Supreme Court handed down its opinion ffr the case of Chicago Union Traction Co. v. Jerka, 227 Ill. 95, it had been supposed that the defense sought to be made by the plea could be made under the general issue, and that in the Jerka case it was first suggested that a special plea was required. That counsel for plaintiff in error are mistaken in that statement is shown by the language used by the court in the Jerka case. It is there said, “ * * * The plea of not guilty did not put in issue the ownership of the street car line or the cars operated thereon. * * * This view we regard as firmly established in this state by the following cases: McNulta v. Lockridge, 137 Ill. 270; Illinois Life Asso. v. Wells, 200 Ill. 445; Chicago City Ry. Co. v. Carroll, 206 Ill. 318; Pennsylvania Co. v. Chapman, 220 Ill. 428.” Even if the opinion in the Jerka case had been the first expression of our Supreme Court on the subject, the circumstances could hardly be regarded as furnishing a valid excuse for delay in asking for leave to file the special plea, for the opinion in that ease had been handed down more than a- year and a half before plaintiff in error made any effort to interpose such plea in this case, and there is no claim that counsel were not familiar with that opinion long before the special plea was tendered. Under the facts in this case it was no abuse of discretion to deny the leave to file the special plea.

It is next urged that the verdict is not supported by the evidence. Upon this contention it is insisted that there are at least two material averments of the declaration concerning which there is no positive evidence, and that even though a single fact may be assumed from proper circumstantial evidence, two material facts cannot be so assumed from the same evidence, or, in other words, that one presumption cannot be based on a prior presumption.

The two averments in the declaration which plaintiff in error insists are not supported by positive evidence, are, first, that the switch was open, and, second, that the servants of the defendant in charge of the car negligently failed to see that the switch was open. We think counsel for plaintiff in error are mistaken in their conception of what are the material averments of negligence in the declaration.

Only such averments of negligence are material as are necessary to state a case upon which the plaintiff would be entitled to recover. An averment that defendant negligently failed to do some act does not make even the negligent failure to do such act actionable. Whether it is actionable depends in part upon whether such failure was the proximate cause of the injury.

The averment in the declaration in the case at bar “that the servants of the defendants then and there in charge of said car carelessly and negligently failed to see the condition of said switch” is not a material averment and, if true, snch negligent failure did not cause the injury. The material averments of negligence in this declaration are that the defendants by their servants ran the ear at a high and dangerous rate of speed as it approached an open switch and negligently and carelessly failed to slacken its speed as it came upon said switch. Therein a cause of action is stated, and if the proof sustains these averments, then defendant in error was entitled to recover whether the servants of defendants failed to see that the switch was open or wilfully ran into it seeing and knowing it was open.

While there is no direct proof that the switch was open at the time, the circumstances in evidence we think fully warranted the jury in finding that it was open. The proof shows that when the car reached the switch it turned into it and ran off from the main track onto the switch track without being derailed and without more commotion than is usual when a car passes onto a switch at a high rate of speed. There is direct testimony by several witnesses as to the rate of speed the car was going before and at the time it ran onto the switch track. It was for the jury to say from this evidence whether the switch was open, as alleged ; whether such speed was under the circumstances a high and dangerous rate of speed when it approched the switch, as alleged; whether that speed was slackened as the car came upon the switch, which is negatived by the allegation; whether the operation' of the car as shown by the evidence was negligent, as alleged, and whether it was, as alleged, because of such negligence that defendant in error was injured. The jury found the defendants guilty, thereby finding all these material facts to be proven as alleged, and we are not prepared to say such finding is against the manifest weight of the evidence.

It is manifest that of all these material facts, so found to be true by the jury, one only, namely, whether the switch was open, is left to be presumed from the circumstances, and that in finding the defendants guilty the rule prohibiting the resting of one presumption on another presumption was not violated. •

It is claimed the damages fixed are excessive. The verdict was for $12,695. A remittitur of $1,695 was filed by defendant in error and judgment was entered by the court for $11,000. Defendant in error was ten years of age at the time of the injury. The injury was very considerable. The right foot of defendant in error was crushed, necessitating the amputation of the toes and part of the metatarsal bones of the foot. His recovery, so far as he has recovered, was complicated by an attack of tetanus. Up to the time of the trial the foot was tender and the wound had several times broken open. He walked with a limp and suffered some pain in the foot, ankle and heart. Yet, in view of the character of the injury, he has made a good recovery and has left a fairly serviceable foot. While there is no rule by which damages of this character can be computed, it seems to us that this judgment is larger than mere compensation will warrant, and no claim is made for punitive damages. We, however, see no evidence in the size of the verdict that the same was the result of passion or prejudice.

If defendant in error will within ten days file a remittitur for $3,000, the judgment will be affirmed for $8,000. Otherwise, the same will be reversed and the cause remanded.

Affirmed if remittitur filed for $3,000; otherwise reversed and remanded.

Remittitur filed and judgment affirmed August 20,-1912.


text:
    City of Chicago, Defendant in Error, v. John G. Craig, Plaintiff in Error.
    Gen. No. 16,411.
    1. Health — city may provide manner in which notice of contagious diseases must he given. It is within the province of the legislative department of a city government to enact in what way notice that persons have a contagious or epidemic disease shall be given to the health department by attending physicians.
    2. Health — when physician guilty in not reporting contagious disease. A city penal ordinance requiring a physician attending a smallpox patient to make a report in writing to the commissioner of health within a certain time together with the character and state of the disease and a rule made by the commissioner of health, pursuant to ordinance, requiring a report at once to the department of health and by mail, are not complied with by a physician ineffectually calling up by telephone and then directing the patient to report to a health official, which he did. ■
    3. Appeals and errors — ruling must he had on improper remarles of counsel. Alleged improper remarks of counsel in argument to a jury will not be considered on appeal where counsel “excepted” to the remarks but did not object to them or ask or obtain a ruling as to whether they were proper or not.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed August 12, 1912.
    F. H. Trude and J. K. McMahon, for plaintiff in error.
    George H. White, for defendant in error; Henry M. Seligman, of counsel.
   Mr. Justice Graves

delivered the opinion of the court.

On December 22, 1909, there were in force in the City of Chicago, sections 1072, 1077, 1078, 1035 and 1036 of the revised ordinances of the City of Chicago of 1905, which are as follows:

“Section 1072. Physicians to Report. Every physician who shall prescribe for or attend any person having a contagions or epidemic disease, such as cholera, yellow fever, scarlet fever, diphtheria, typhus, typhoid fever, smallpox, varioloid, puerperal fever, membranous croup, measles, whooping cough, or any of the grades of such diseases, or any other disease designated as contagious or epidemic by the commissioner of health, shall, within twenty-four hours after first discovering the existence of such disease, make a report thereof in writing to the commissioner of health, which report shall give the name, if known, and the place of dwelling of the person having such disease, together with the character and state of his disease. For the purpose of covering the expense of making such report the physician making the same shall receive the sum of ten cents; provided all claims for fees for such reports shall be presented before the fifth day of the month succeeding that in which such reports- were made.”
“Section 1077. Removal of Person. No person shall, within the city, without a permit from the commissioner of health, carry or remove from one place to another any person sick of any contagious or epidemic disease. Nor shall any person by any exposure of any individual sick of any such disease, or of the body of such person, or by any negligent act connected therewith or in respect of the care or custody thereof, or by a needless exposure of himself, cause or contribute to or promote the spread of disease from any such person or from any dead body.”
“Section 1078. Penalty. Any person who violates, neglects or refuses to comply with, or who resists any of the provisions of any section of this article, shall be fined not less than ten dollars nor more than two hundred dollars for each offense.”
“Section 1035. Power to Make Rules and Regula-tions- — Epidemics—Regulations Concerning. The commissioner of health shall have power to make such rules and regulations in relation to the sanitary condition of the city and for the prevention and suppression of disease, not inconsistent with the provisions of this chapter, as he may deem necessary or advisable. Such rules or regulations shall not take effect a,nd be in force until approved by the city council, except in cases of emergency as hereinafter provided for. In case of contagions or epidemic disease or of danger from anticipated or impending contagious or epidemic disease, or in case the sanitary condition of the city shall he of such a character as to warrant it, it shall be the duty of the commissioner of health to make such rules and regulations and to take such measures and to do and order to be done and cause to be done such acts for the preservation of the public health (though not herein or elsewhere or otherwise authorized) as he may in good faith believe and declare the public safety and health demand, and all such rules and regulations so declared by the commissioner of health to be emergency rules and regulations shall, as soon as may be after the promulgation of the same, be reported by the said commissioner to the feity council for approval. ’ ’
“Section 1036. Penalty. Any person who shall violate, disobey or refuse to comply with any rule, order or sanitary regulation of the department of health made in conformity with the provisions of the preceding section, shall be fined not less than ten dollars nor more than two hundred dollars for each offense. ’ ’

Rules 1 and 4, duly adopted' under the provisions of section 1035, above quoted, and in force December 22,1909, are as follows:

“Rule 1. It shall be the duty of any physician attending any case of measles, whooping cough, diphtheria, scarlet fever, chickenpox, or smallpox, to at once report the same to the department of health by telephone and by mail, giving the data asked for on the reporting card furnished by the department for that purpose. The other infectious diseases designated on the physicians’ reporting card must be reported by card.”
“Rule 4. It shall be the duty of the physician attending who suspects one of the above named diseases to report it as a suspicious case. Such cases will not be placarded or removed unless a warranting diagnosis is established. A corrected report of the case must be made by the attending physician as soon as the diagnosis is made.”

At that time plaintiff in error was a practicing physician having offices at the corner of Fifty-ninth and Halsted streets in.that city. Shortly after 10 o’clock on the evening of that day one George Mitchell came to the offices of plaintiff in error for treatment, afflicted with what plaintiff in error then pronounced to be, and which in fact was, smallpox. Mitchell told plaintiff in error he was staying with a family at Sixty-seventh and Ada streets in the city. Plaintiff in error then attempted to call up by telephone the Health Department of the city and Dr. Herman Spaulding, the chief of the bureau of contagious diseases, but failed to get any response. He then directed Mitchell to go home and stay there until the next morning and then to report to Dr. Spaulding at No. 100 State street. Plaintiff in error then gave to Mitchell a card on which were the words:

“Office and Residence
John G. Craig, M. D.,
Phone Wentworth 451
H. Spaulding, No. 100 State street, introducing Mr. George Mitchell, Sixty-seventh and Ada streets.”

Mitchell presented this card to Dr. Spaulding at 2 o’clock p. m. of the next day. There is no pretense that plaintiff in error ever mailed any notice or made any report of this case to any one or that he ever communicated the facts by telephone or otherwise to any one or that he in any way complied with or attempted to comply with the provisions of the ordinances and rules above quoted, except as above stated.

On the twenty-seventh day of December, 1909, this suit was instituted in the Municipal Court to recover of plaintiff in error a penalty for the violation of the ordinances and rules above quoted. Upon a trial a jury found that plaintiff in error had violated Sections 1072 and 1077 and Rules 1 and 4, above quoted, and a judgment of $25 and costs was entered against him on the verdict.

Plaintiff in error contends this judgment is erroneous for the reason that he “in effect complied with Section 1077 and Rule 1, in that after he diagnosed the case as smallpox he directed Mitchell to call at the office of Dr. Spaulding the next morning and gave him a card with the address of Dr. Spaulding,” and that -Mitchell presented himself and the card given him by plaintiff in error to Dr. Spaulding, and that on examination Dr. Spaulding found that Mitchell had the smallpox, and, quoting from brief of plaintiff in error: “Therefore, the health department by reason of the acts of Dr. Craig (plaintiff in error) became advised of Mitchell’s condition less than sixteen hours after Dr. Craig had diagnosed the case.” Section 1072 provides that physicians attending cases of smallpox shall report the same in writing to the commissioner of health within twenty-four hours after first discovering the existence of such disease, which report shall give the name, if known, and the place of dwelling of the person having such disease, “together with the character and state of his disease.”

Rule 1 provides that such physician shall report such case at once “to the department of health by telephone and by mail.”

Whatever might be said as to whether the unsuccessful attempt made by plaintiff in error to notify the health department of this case by telephone was a part performance of the requirements of Rule 1, referred to, the record is barren of any evidence of even the slightest attempt on the part of plaintiff in error to comply with Section 1072, requiring a report in writing, “giving the character and state of the diseaseor with Rule 1, requiring a report by mail to the Department of Health. It is no answer to a charge of failure to comply with the provisions of the ordinance and rule to say that plaintiff in error sent Mitchell to the health department or that the health department became aware of the facts upon investigation after Mitchell presented himself in pursuance to the directions of plaintiff in error, or that sending Mitchell to the health department was just as effective a way to notify the health department of the facts as the way provided by ordinance and rule. It was clearly within the province of the legislative department of the city government to enact in what way notice of such disease should be given to the health department, and, having done so, it is the duty of all persons coming within the provisions of such ordinance and rule to obey them, and it will not do to allow individuals, although members of the medical profession, to say some other way is just as good.

That plaintiff in error undertook to substitute his way of notifying the health department of this smallpox case for the way provided by ordinance and rule, and utterly failed to comply with the provisions of the ordinance and rule in that regard, is clearly established by the evidence.

Plaintiff in error complains of the action of the court in giving and refusing of instructions. The action of the court in this regard was in accord with what has been said above with reference to the merits of the case, and no good could result in reiterating it. Suffice it to say, we think the court committed no error in instructing the jury.

It is lastly insisted that certain remarks of counsel for the city in his argument to the jury were so improper as to call for a reversal of the case. Counsel for plaintiff “excepted” to some of the remarks now complained of at the time they were made, but he did not object to them or ask or obtain a ruling by the court as to whether they were proper or not. It has long been the established law of this state that in order to take advantage of the misconduct of counsel in this regard, objections must be interposed, and a ruling of the court obtained. City of Chicago v. Gemmill, 209 Ill. 638; Pike v. City of Chicago, 155 Ill. 656; I. C. R. R. Co. v. Cole, 165 Ill. 334; North Chicago St. Ry. Co. v. Southwick, 165 Ill. 494; Murray v. Doud & Co., 167 Ill. 368.

This record presents nothing to be passed upon by this court with reference to the misconduct of counsel.

Finding no reversible error in this record, the judgment of the Municipal Court is affirmed.

Judgment affirmed.


text:
    John F. Devine, Administrator, Appellant, v. The Aurora, Elgin & Chicago Railway Company, Appellee.
    Gen. No. 16,444.
    1. Intebtjrbaw. railroads — care required to avoid injuring trespassers. As soon as a motorman of an interurban railroad becomes aware of the presence of a trespasser on tracks on a bridge it becomes bis duty to use reasonable care to avoid injury, and unless there is some evidence tending to show a failure of such duty it is proper to direct a verdict.
    2. Interurban railroads' — -when evidence shows due care to avoid injuring trespassers. A motorman of an interurban train going forty-five miles an hour, when from 125 to 300 feet distant, saw a trespasser on her bands and knees between the rails on a bridge, and the trespasser remained in such position until struck. The motorman reversed bis motor, put on bis brake, and did everything in bis power to stop the train but was unable to do so until it bad passed over the trespasser. Held, a peremptory instruction for defendant was properly granted.
    Appeal from the Superior Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed August 12, 1912.
    Benjamin C. Bachrach and Arthur C. Bachrach, for appellant.
    Hopkins, Peppers & Hopkins, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

Mrs. Martha "WAlff was run over and killed hy a train of two cars, owned and operated by appellee, while she was on the tracks of appellee on the bridge over the Desplaines river. Just how she came to be there is left to conjecture, but that she was a trespasser there is not questioned. On the trial the court, at the close of the plaintiff’s ease, instructed the jury to find the defendant not guilty. Appellant claims that was error.

As soon as the servants of appellee became aware of the presence of the deceased on the track, it became their duty to exercise all reasonable care to avoid injuring her. Unless there is some evidence in the record fairly tending to show the failure of those servants to perform that duty, the instruction was properly given. The evidence tends to show that the bridge over the Desplaines river is about 200 feet long; that when the motorman first saw the deceased she was on her hands and knees between the rails of the road; that she remained in about the same position until the train struck her; that when the motorman first saw her, the train was from 125 to 300 feet west of the bridge, and going at the rate of forty-five miles per hour; that as soon as he saw her, the motorman reversed his motor, put on his brake and did everything in his power to stop the train, but was unable to do so until the train had passed over the deceased. There is no evidence tending to show that he omitted to do anything he could have done to stop the train sooner, or that the killing of the deceased was the result of any misconduct or negligence on the part of the servants of appellee.

There is no error in giving the peremptory instruction. The judgment of the Superior Court is, therefore, affirmed.

Judgment affirmed.


text:
    Joseph Vial, Appellee, v. Norwich Union Fire Insurance Society of Norwich, England, Appellant.
    Gen. No. 16,457.
    1. Contracts — right of third person under contract made for his benefit. Where a contract is made between two persons for the benefit of a third, such third person may maintain an action in his own name to enforce such contract in so far as his interests are involved.
    2. Contracts — terms of written contract are controlling as to rights of third person. Where a contract between two persons for the benefit of a third is in writing, the terms expressed in the writing are presumed to he the terms of the contract as made and are controlling as to the rights of a third person whose interests are involved.
    3. Reformation of instruments — jurisdiction of equity to reform insurance policy. Equity will in a proper case rectify a mutual mistake made in the terms of a 'contract of insurance and will retain jurisdiction to enforce it, as between the parties to it and their privies, according to its terms as rectified.
    4. Reformation of instruments — necessary parties on bill to reform. Equity will not reform a contract for mutual mistake' unless all the parties to it who have any interests that may he affected by the reformation and all persons, who have acquired rights or assumed obligations under it are in court as parties.
    5. Reformation of instruments — necessity that company reinsuring risk have knowledge of mistake. Before a fire insurance policy can he reformed in equity for mutual mistake, as against a company that has reinsured the risks of the original company, it must appear by the averments in the hill and by proof that the reinsuring company had actual or constructive notice or knowledge of the mistake at the time the reinsurance agreement was made, or that such company has estopped itself from relying on a want of knowledge or notice.
    6. Reformation of instruments — when insurance policy cannot be reformed. Where a fire insurance company reinsured the risks of another company, as then covered by policies, according to the terms and conditions of the policies, a policy cannot be reformed for a mutual mistake of the original company and insured as to the buildings insured, where it was not averred or proved that the defendant had any notice or knowledge of the mistake, or that it was estopped from resisting the reformation so as to increase its liability on its contract of reinsurance.

      7. Reformation oit instruments — when insurance company not estopped to object to reformation of policy. On a bill to reform a fire insurance policy for a mutual mistake, as to the buildings insured, against a company that reinsured the risks of the original company, the fact that the original company had paid a loss on buildings not specifically covered by the policy will not estop the defendant from objecting to the reformation, where the averment as to such prior loss did not show that it was not covered by the policy and there was no averment or proof that either company had any knowledge or notice prior to the reinsurance contract that such prior loss was not covered by the policy.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded with directions.
    Opinion filed August 12, 1912.
    Barger & Hicks, for appellent.
    Lyman, Lyman & O’Connor, for appellee.
   Mr. Justice Graves

-delivered the opinion of the court.

The Indemnity Fire Insurance Company, of New York, through its agents, Higley & Yager of Chicago, on October 13, 1905, issued its policy of insurance to one Joseph Vial, the appellee in this case. Among other things, the policy contained the following:

“No. 130,702.
Stock Company.
$1,700.00

Indemnity Fire Insurance Company of New York.

In consideration of the stipulations herein named and of seventeen and no/100 dollars premium does insure Joseph Yial, for the term of three years from the thirtieth day of October, 1905,- at noon, to the thirtieth day of October, 1908, at noon, against all direct loss or damage by fire, except as hereinafter provided,

To an amount not exceeding seventeen hundred dollars to the following described property, while located and contained as described herein, and not elsewhere, to-wit:

Dwelling Form.
$1,700.00 — On the frame dwelling and additions, adjoining and communicating, including foundations, gas and water pipes and connections, permanent heating apparatus, grates, mantels, tiling, plate, stained and ornamental glass, fresco work and wall decorations, gas and electric fixtures, fixed mirrors, book cases and sideboards and all other fixtures set or built in walls, porches, verandas, window and door screens, storm doors, awnings and all permanent fixtures belonging thereto and contained therein; also on sidewalks and fences in front of and surrounding the premises situate on Lots 7 and 8 of the First Addition to West Chicago, a sub-division of that part of the West y2 of the S. E. % of Section 9, north of Vial road (so called) also described as Lots 7 and 8 of A. A. Adair’s Subdivision of Lots 5, 6, 7 and 8 in Section 9, T. 38, N. E. 12, Cook county, Ill., being south of La Grange, Illinois. * * *
“Loss or damage, if any, under this policy, shall be payable to Chicago Title & Trust Company, mortgagee (or trustee) or successor in- trust, as interest may appear. * * * ”

The policy was delivered by the' agents of the company to one David B. Lyman, Jr., who was the attorney and agent of Vial in obtaining the loan from the Chicago Title & Trust Company.

On May 1, 1907, a reinsurance agreement was entered into between the Indemnity Fire Insurance Company of New York and the Norwich Union Fire Insurance Society of Norwich, England, which agreement was, in part, as follows:

“This agreement made this first day of May, 1907, between the Norwich Union Fire Insurance Society of Norwich, England, hereafter known as the ‘Norwich Union,’ and the Indemnity Fire Insurance Co. of New York, hereafter known as the ‘Indemnity,’ in consideration of the sum of one dollar by the parties hereto to the other paid, the receipt of which is hereby acknowledged.
“Witnesseth, That the ‘Norwich Union’ agrees to reinsure from 12 o’clock m., standard time, on above date at the place where the property insured is located, all unexpired fire and lightning risks located in the United States, for the amounts not heretofore reinsured, now covered by policies and contracts issued by the ‘Indemnity’ according to their terms and conditions and to pay all losses thereon occurring after the last mentioned hour, and to pay all adjusting and other expenses arising from such risks and all return premiums upon the cancellation of policies enumerated in the schedules.”

The Indemnity Fire Insurance Company ceased doing business in the state of Illinois on May 11, 1908, and has done no business in Illinois since that date.

On August 11, 1908, a horse barn, frame crib, frame granary, wagon house, ice house and additions thereto, located on the premises, described in the policy issued by the Indemnity Fire Insurance Company of New York, was struck by lightning and destroyed by fire as a result.

The Indemnity Fire Insurance Company of New York, and the Norwich Union Fire Insurance Society of Norwich, England, were each notified of the destruction of the buildings and demand was made on each of such companies that they pay the loss. Each of the companies refused to comply with this demand or pay the loss on the ground that the buildings destroyed were not covered by the policy issued by the Indemnity Fire Insurance Company of New York, whereupon Joseph Yial, the appellee in this case, filed his bill in chancery, making the Norwich Union Fire Insurance Society of Norwich, England, the sole defendant. The foregoing facts are appropriately set out in the bill and in addition thereto it is averred that, prior to the time the policy of the Indemnity Company was issued, it was expressly understood between appellee and tbe agent of the company that such policy should cover all the improvements on the premises described, but that by mistake of the scrivener who prepared the policy, the buildings to be insured were not all included or properly described in it; that the policy was never delivered to him in person, and that he did not know or have any intimation that all the improvements on the premises were not properly covered by the express terms of the policy until after August 11, 1908, the date on which part of them were destroyed by fire.

It is further averred that in March, 1907, part of the improvements on the premises were damaged by fire to the- extent of $59, which amount was afterwards and on April 4, 1907, adjusted and paid to appellee by the Indemnity Fire Insurance Co. of New York.

It is also averred in the bill that some slight error exists in the description of the premises on which the improvements in question were located, but as we view the matter there is nothing in that averment that will be necessary to discuss in the determination of this case.

The relief prayed for in- the bill is that the policy issued by the Indemnity Fire Insurance Company of New York may be corrected so as to fully describe the premises and property intended to be covered by it, and that the Norwich Union Fire Insurance Society of Norwich, England, may be decreed to pay to appellee or the Chicago Title & Trust Company the sum of $1,641, the amount of the policy, after the $59 paid on the former loss is deducted from the amount of the original insurance. The Circuit Court entered a decree granting the relief prayed.

It is undoubtedly the law that often, where a contract is made between two persons for the benefit of a third, such third person may maintain an action in Tris own name to enforce such contract in so far as his interests are involved. Dean v. Walker, 107 Ill. 540; Bay v. Williams, 112 Ill. 91; Webster v. Fleming, 178 Ill. 140; Cobb v. Heron, 180 Ill. 49; Harts v. Emery, 184 Ill. 560; Robinson v. Holmes, 75 Ill. App. 203.

Such, contract can, however, only be so enforced as the same was made by the parties to it, and where it is in writing the terms expressed in the writing are presumed to be the terms of the contract as made (Schwass v. Hershey, 125 Ill. 653), and are controlling as to the rights of third persons whose interests are involved, as well as to the rights of the parties to it. Sickmon v. Wood, 69 Ill. 329; Harms v. Coryell, 177 Ill. 496-504; Hayden v. Franklin Life Ins. Co., 136 Fed. 285-294-295; Kansas Mutual Life Ins. Co. v. Whitehead, 123 Ky. 21.

It is also undoubtedly true that where a mutual mistake is made in the terms of a contract of insurance a court of equity will in a proper case between the proper parties rectify the mistake under the same rules and circumstances as a mutual mistake in any other kind of a contract would be rectified, and when it is so rectified such court will retain jurisdiction to enforce it as between the parties to it and their privies, according to its terms as so rectified. Mercantile Ins. Co. v. Jaynes, 87 Ill. 199; Home Ins. Co. v. Myer, 93 Ill. 271; Continental Ins. Co. v. Ruckman, 127 Ill. 364; German Fire Ins. Co. v. Gueck, 130 Ill. 345; Gray v. Merchants Ins. Co., 113 Ill. App. 537; Ballance v. Underhill, 3 Scam. 453.

Before a court of equity assumes to reform a contract for mutual mistake, all the parties to it, who have any interests that maybe affected by the reformation of it, and all persons who have acquired rights or assumed obligations under it, must be in court as parties. Hellman v. Schneider, 75 Ill. 422; Mead v. Altgeld, 136 Ill. 298; Sickmon v. Wood, 69 Ill. 329; Moore v. Munn, 69 Ill. 591; Dorman v. Brereton, 140 Ill 153; McLennan v. Johnston, 60 Ill. 306.

Before a contract can be reformed in a court of equity for mutual mistake as against persons not parties to it, but who have rights or liabilities that would be affected by its reformation, it must appear by the averments in the bill and by the proof that such persons are not innocent parties. It must be averred and proven that such persons knew or had notice, either actual or constructive, of the mistake sought to be reformed at the time he acquired his interest or incurred his liability. (Sickmon v. Wood, 69 Ill. 329; Harms v. Coryell, 177 Ill. 496-504; Barton v. Mayers, 183 Ill. 360-362; Russell v. Ranson, 76 Ill. 167), or that such third person has by some act, stipulation or agreement estopped himself from relying on the want of knowledge or notice of such mistake, as a means of protecting his interests.

Authorities from other jurisdictions have been cited by appellee, some of which seem to be in conflict with the principle above announced, while others when understood are in harmony therewith. Feeling bound, as we do, to adhere to the principles laid down by the authorities of our own state above cited, all of which are in harmony, we do not feel that any useful purpose would be subserved by elaborately distinguishing these cases from those of foreign jurisdictions.

There is neither averment nor proof that appellant had any notice or knowledge of the claimed mutual mistake sought to be corrected by the bill in this case. Neither is there any act, stipulation or agreement averred or proven that should estop it from resisting an attempt to correct or modify the contract between the Indemnity Insurance Company and appellee, so as to increase the liability of appellant on its contract with the Indemnity Company. On the contrary, by the terms of the contract between appellant and the Indemnity Company, appellant undertook to reinsure only such property as was then covered by policies and contracts issued by the Indemnity Company, according to the terms and conditions of such policies and contracts as so issued, not according to some secret terms and conditions not made known to appellant and of which it had no notice.

It is insisted hy appellee that the fact that the Indemnity Company paid a loss of $59 to him in 1907 on certain buildings not specifically covered by its policy should estop appellant from now objecting to the reformation of this contract so as to include the buildings burned on August 11, 1908. That position is not tenable for several reasons. There is no averment or proof that either appellant or the Indemnity Company knew, or had any notice prior to the making of the contract between them, that the $59 loss was not on the building actually and in terms covered by the policy as written. The mere fact that a loss had been paid under the policy in no way tends to suggest that there had been a mutual mistake in the writing of it. If any inference could arise from, such payment, it would be that the policy was regular in all respects. In fact, the averment in the bill as to the payment of that $59 loss is merely that a loss to that amount had been paid on “part of the improvements hereinabove described,” which description includes the building that was in terms covered by the policy, and seems to have been inserted for the sole purpose of showing that the amount of the policy that was still in force when appellant entered into the contract with the Indemnity Company was less by $59 than the amount for which it was originally issued, for after averring that the original policy was for $1,700.00, and the payment of $59 on a prior loss asks for a decree against appellant for $1,641, the exact amount of the policy still in force, and no relief is prayed for in the bill based on the averment of the payment of the $59. Under the averments in the bill and the facts disclosed by the proof, appellee is not entitled to have the policy reformed against appellant.

Even if the bill had averred and the proof had shown that appellant had full knowledge of all the facts known to the Indemnity Company, still we think the decree would have to be reversed, because the proof of a mutual mistake falls far short of the convincing character requisite to warrant a finding that a mutual mistake was made in drafting the policy. .

While it is very likely true that appellee intended to have the policy written, as he says, it is apparent that there was no mistake on the part of the Indemnity company. If appellee has any redress in this matter, it certainly is not by way of correcting a mutual mistake in the policy.

The decree of the Circuit Court is, therefore, reversed and the cause is remanded to that court with directions to dismiss the suit for want of equity in the bill.

Decree reversed and remanded ivith directions to dismiss bill.