text:
    George W. Strange, Appellee, v. Cleveland, Cincinnati, Chicago and St. Louis Railway Company, Appellant.
    1. Nuisances—what permanent structure. Held, that the railroad embankment in question in this case was to be regarded as a permanent structure.

      2. Nuisances—what damages may he recovered in action for injury to real property arising from construction of permanent nuisances. Even though no physical disturbance of the plaintiff’s soil has resulted from the erection of a railroad embankment, yet if such embankment is so constructed as to constitute a nuisance and to be permanent in character, the plaintiff is entitled to maintain an action in which he may recover past, present and future damages.
    Action on the case. Appeal from the Circuit Court of Crawford county; the Hon. E. E. Newlin, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.
    James Vause, Jr., for appellant; L. J. Hackney, Conger & Conger and Callahan, Jones & Lowe, of counsel.
    P. Gr. Bradbury and Parker & Crowley, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

The pleadings upon which this cause was tried consisted of a declaration of three counts to which there was a plea of the general issue.

In the first count of the declaration it was averred that appellee was the owner and in possession of a tract of eighty acres of land except one hundred feet off the west side possessed by the appellant in connection with a certain other one hundred feet adjoining; that appellant wrongfully, unlawfully and permanently erected and built, maintained and continued a permanent levee, embankment or railroad grade through the center of its said real estate of great dimensions in height and width without sufficient openings therein to permit the free passage of water that accumulated on the said lands of appellee and by reason thereof the flow of large quantities of rainwater which naturally flowed upon, over and across the premises of the appellee was obstructed and diverted from its natural course and ran and flowed in a different direction over and upon the land of appellee where it remained, whereby said land was permanently damaged.

The material averments of the second count are in substance the same, except it is alleged in the second count that such permanent structure was built without sufficient openings to permit the free passage of the water of a large creek running through the land of appellee on and across the land possessed by appellant whereby appellee’s land was overflowed with great quantities of water.

The material averments of the third count are substantially like the second.

A trial by jury resulted in a verdict in favor of appellee for the sum of nine hundred and seventy dollars upon which, after overruling appellant’s motion for a new trial, there was a judgment.

There was no conflict in the evidence. It shows that appellant in the construction of its railway along the lands of appellee, failed, to so construct sufficient openings in its bridges and culverts as to permit the natural flow of the water off the lands, and as a result of such insufficient openings, large quantities of water from rainfall and a creek that flowed through the lands, were accumulated and caused to overflow the lands described. The evidence showed the lands to have been worth sixty dollars per acre before the railroad was constructed and twenty-five dollars per acre afterwards.

Appellant’s evidence was confined to proof that there were no engineering difficulties in the way of enlarging such openings or building additional ones wherever it might become necessary.

The trial court admitted evidence to show all damages past, present and future, which had resulted and would result to appellee’s land from the alleged wrongful erection and maintenance of appellant’s embankment and also admitted evidence as to the difference in the fair cash market value of the lands of the plaintiff described in the declaration before and after the embankment was made by appellant. This evidence was all admitted over, the objection of appellant and at the close of the evidence introduced by appellee, and again at the close of all the evidence, appellant asked the court to instruct the jury to find the appellant not guilty, and also at the conclusion of all the evidence, moved the court to exclude all the evidence as to the difference in the fair cash market value of the lands- described before and after the embankment was made. The court refused to give such instruction and refused to allow such motion and thereupon gave to the jury an instruction on behalf of appellee telling the jury if they believed from the evidence appellee was the owner of the land described in the declaration and it had been permanently injured and damaged by the defendant, as alleged in the declaration, and appellee had been damaged- thereby, then the jury should find the defendant guilty and assess appellee’s damages at such amount if any as he had sustained.

Appellant excepted to the action of the court in admitting such testimony and in the giving of such instruction and it is assigned as error.

It is also urged by appellant that the court committed error in refusing proper instructions asked by appellant and in refusing to permit it to give proper and legal evidence to the jury, but as appellant’s counsel say that the numerous questions raised by the assignments of error on the record depend for their solution upon the single question whether a party in an action like this against a railroad company under the evidence disclosed can recover past, present and future damages to real property without alleging and proving some physical disturbance of the soil, and as counsel on both sides have confined their arguments in this court exclusively to this question, and as its determination will dispose of the alleged error in refusing the instructions asked by appellant and in refusing to admit the evidence offered, we have not deemed it necessary to dispose of such alleged errors in detail; but content ourselves with setting forth such rulings of the court as fully present the question submitted.

The contention of appellant is that under the pleadings and evidence appellee can only recover damages to the date of bringing suit.

It will be observed the declaration charges that appellant wrongfully, unlawfully and permanently built the structure which resulted in overflowing appellee’s lands. The evidence shows the structure to be a railroad embankment with tracks thereon and in operation and the openings constructed of concrete. We are of opinion this evidence amply establishes the averments of the declaration that the structure was a permanent one. It is true it might be removed, or the openings, shown to be too narrow to permit the free and full flow of the water, might be enlarged. Any structure erected by human hands might be removed or changed hut this does not in our opinion affect its character as a permanent structure. Its character must be determined from what the evidence shows it to be now. Experience and observation show there is no building or structure of more enduring permanency than a railroad track.

In considering this question the courts have expressed the opinion that such structures were permanent.

“It cannot be doubted that the roadbed, embankments, trenches, bridges, culverts and other appurtenances of a railroad constructed and maintained in pursuance of lawful authority are to be regarded in law as permanent structures. This is not so because it is certain they will in fact continue to subsist in their present condition forever or that they are not liable to be changed in many respects by the proprietors of the railroad whenever they may see fit or by natural causes, but it is so because the railroad company has a legal right to maintain them perpetually and because no other party has or can have the lawful right to interfere with or change them in any respect. It is for this reason that when a railroad company lawfully appropriates land for the construction of its road, such appropriation is a permanent one and in case other property is damaged by its construction or maintenance such damage is in its nature equally permanent. It is therefore held that where deterioration of the value of land is occasioned by a nuisance created by the construction of a railroad, such nuisance is a permanent one, so that all damages for past, present and future injury to the property may be recovered in one suit and such recovery is a bar to all future actions therefor.” K. & S. R. R. Co. et al. v. Horan, 131 Ill. 288; C. & E. I. R. R. Co. v. Loeb, 118 id. 203.

While there is no infallible test by which it can be determined whether a structure is permanent or not inasmuch as nothing is absolutely permanent, and while the decisions of courts have not been uniform upon this question, we believe that by the weight of authority they have been so regarded.

It is the contention of appellant that the structure without sufficient openings having been built in violation of the statute and it being shown by the testimony of competent engineers that it was a nuisance that could be abated, it is not permanent and it would be a harsh rule to permit both past and future damages to be recovered and the fifth section of the railroad and warehouse act is cited. That section after authorizing railroad companies to construct tracks, has the following proviso: “Provided, that in no case shall any railroad company construct a roadbed without first constructing the- necessary culverts or sluices as the natural lay of the land requires for the necessary drainage thereof. ’ ’

This proviso is declaratory of a common law duty which already existed, that of so using your own as not to injure another. Before the statute, a railroad constructing its road without necessary culverts or sluices would be held to respond in damages for any injuries thereby occasioned, and even if it might be compelled by mandamus to obey the statute, such remedy would in no wise change its obligations or its liability in a suit at law for such injuries.

The many cases cited and others which might be cited upon the question of the permanency of structures and the right to recover past and future damages for their wrongful construction resulting in injury, seem to be out of harmony. But to use an expression of counsel for appellant, we think the conflict is more apparent than real.

In some cases the structures were not railways and were held not to be permanent and damages were held to be recoverable to the bringing of the action. Such cases are no authority here.

The case of C. C. C. & St. L. Ry. Co. v. Nuttall, 59 Ill. App. 639, was one where plaintiff sued for a continuing nuisance and the statute of limitations was interposed and the right to recover for damming water and causing it to overflow the land of plaintiff was limited to a period within five years prior to' the commencement of the suit. In that case the road was improperly constructed and the court held it a continuing nuisance for which damages resulting from each recurring injury were recoverable. And in support of such holding, cites the case of C. B. & Q. R. R. Company v. Schaffer, 124 Ill. 112, where a judgment for damages up to the bringing of the suit was sustained and it was held that where a railroad1 company properly constructs a bridge over a watercourse, and suit is brought by a landowner for damages thereby caused to his property and a judgment recovered and paid, this will be regarded as in full for all damages future and past and a bar to a second suit for subsequent damages, but where the bridge is improperly built, the party injured is not bound to assume that the imperfect structure will be permanent and he may treat it as a continuing nuisance and may sue for the amount of such injury as he suffers from its continuance.

It is further held that if the landowner treats a defective structure, as a railroad bridge, which caused his lands to be overflowed, as a permanent source of injury, and recovers the full amount of damages both present and prospective which his property sustains or may sustain from such injury by such structure, he will be estopped from bringing a second action for subsequent damages.

The case of C. M. & St. P. Ry. Co. v. Carpenter, 125 Ill. App. 306, cited by counsel for appellant, was a recovery for all damages past and future for an improperly constructed culvert and it was conceded by counsel that the measure of damages if any was the difference in the value of the land before and after the railroad was constructed and a judgment against the company was affirmed.

Atterbury v. C. I. & St. L. S. L. Ry. Co., 134 Ill. App. 330, also cited, is a case in which it is held that where the owner of land has sold the right of way to a railway company, no right of action exists for the construction and operation of the road unless it is negligent and in such case the remedy is in successive recoveries until the company properly constructs and operates its road.

To the same effect is C. & M. Ry. v. Wachter, 123 Ill. 440, and O. & M. Ry. v. Thillman, 143 id. 127.

The case of C. P. & St. L. Ry. v. Reuter, 223 Ill. 387, was one where damages were claimed and recovered for the destruction of crops and it was held on affirming the judgment that each overflow of the crops by the improper construction of a railroad embankment is a fresh nuisance and creates a new cause of action. In this case there was evidence that the railway company did not build the embankment causing the injury but acquired it afterwards; but it was held that it was liable in such action for continuing it.

It is held also in the following cases that where the injury is occasioned by the erection of permanent structures all damages past, present and future may be recovered: City of Centralia v. Wright, 156 Ill. 561; Schlitz Brewing Co. v. Compton, 142 id. 511; Chicago & Eastern Illinois R. R. Co. v. McAuley, 121 id. 160.

“When a structure is in its nature permanent, it seems that one damaged thereby may elect to treat it as permanent in law though he might abate it as a nuisance and may sue for and recover damages present and prospective. If he does so recover he is to be regarded as having consented to its continuation and he and others holding through or under him are denied the right of further suit for the recovery of damages. ’ ’ Baker v. Leka, 48 Ill. App. 353.

The authorities cited appear to be in some conflict but we are of opinion that the rule bo> be deduced from them is, that where the owner of land has not been compensated under the law of eminent domain or by a conveyance of the right of way to a railway company, and there is negligence in the construction of its road whereby his land is overflowed, he may either elect to treat the injury as a continuing nuisance assuming it will be abated, and sue for each successive injury, or he may treat the structure as permanent and sue for and recover in one action ail damages past, present and future after which he will be estopped from claiming any further damages.

There is no evidence in the record of any conveyance by the owner of the land to appellant for right of way nor of any proceeding under the law of eminent domain to assess damages to the owner, and having elected to treat the structure as permanent and having so declared in his declaration, there was no error in the ruling of the court in the admissibility of evidence or in the instructions, and the judgment is affirmed,

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice

license: Public Domain

text:
    West Chicago Park Commissioners, Appellant, v. Francis A. Riddle et al., Appellees.
    Gen. No. 14,875.
    1. Arbitration and award—effect of judgment rendered pursuant to Act entitled “An Act to enable parties to avoid delay in the administration of justice.” In rendering a judgment pursuant to a submission under this Act, the judge exercises a function of the judicial department of government; the judgment rendered is enforceable as are other judgments rendered by him, and is not subject to attack upon the grounds which may be availed of to attack ordinary awards; such a judgment is given the full force and credit that is accorded to other judgments rendered in ordinary proceedings.
    2. Arbitration and award—when judgment final in submission made under “An Act to enable parties to avoid delay in the administration of justice.” If the submission has been made by formal agreement, although sought to be rescinded, both the question as to the propriety of the court’s action in refusing to permit a withdrawal and the question of the lack of a preliminary formal appearance and submission are waived by the fact that there was a full and complete hearing of the cause in which both parties participated.
    3. Arbitration and award—“An Act to enable parties to avoid delay in the administration of justice,” construed. The provision of this Act which provides that judgment shall be rendered within the time fixed in the agreement of submission, is merely directory and not mandatory.

      4. Judgments—when not subject to attack in chancery. A judgment rendered by a common law court in the exercise of its ordinary common law jurisdiction cannot be interfered with by a court of equity, either because the judgment may be so erroneous, unjust and wrong as to shock the moral sense or because the evidence upon which it is based may in no wise support it or may give such slight and insufficient support that the conscience of the chancellor is shocked by the injustice of the judgment.
    5. Definitions—“hearing” defined. The word “hearing” when used in connection with the trial of a law suit, includes not only the listening to the examination of the witnesses, but the entire judicial examination of the issues both of law and of fact between the parties. Consequently, the word embraces the listening to the arguments of counsel on both sides, if oral arguments are made, and the reading of the arguments if written or printed, and also the consideration of these arguments in respect to both points of law and of fact.
    Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed October 29, 1909.
    Rehearing denied November 12, 1909.
    Statement by the Court. The bill of complaint before ns on this appeal is one filed by appellant in the Circuit Court to impeach a judgment rendered in that court, on December 6, 1905, for $20-,583.53. The bill prays, principally, that the judgment may be decreed to be void and that the collection thereof may be perpetually enjoined. The judgment was rendered under “An Act to enable parties to avoid delay in the administration of justice,” adopted in 1887 (Rev. Stats. Practice Act, secs. 100, 101). Francis A. Riddle, the judgment creditor, and Garleton Hudson, assignee of the judgment, the parties defendant to the bill, demurred generally to appellant’s amended bill of complaint. The chancellor sustained the demurrer and, as appellant stood by its bill, the bill was dismissed for want of equity. Appellant prosecutes this appeal to reverse that decree.
    Mr. Riddle’s claim, upon which judgment was rendered against appellant Park Commissioners, was for his salary as attorney for part of a year’s term that he did not serve because he was discharged, $583.33; for extra compensation above his salary for services rendered in the Dreyer litigation, $15,000; for extra compensation, for services in connection with the Dreyer litigation, in negotiating a settlement with the Comptroller of Currency and the receiver of the National Bank of Illinois, collecting part of the decree against the bank and procuring a certificate for the balance to be paid in due course of administration, 3%% of amount collected, $7,742.32; for extra compensation in three other matters, viz.: a special assessment for Washington boulevard $1,798.85, writ of error in Cummings matter $1,000, writ of error in the Farrell matter $1,500, total $4,298.85. Of the amounts claimed the first two items and $5,000' of the third item were allowed and the rest disallowed.
    The proceedings resulting in the judgment, including the evidence, appear at large by exhibits attached to the bill.
    The validity of the judgment is attacked, because there was no' jurisdiction of the person of the defendant, Park Commissioners; because of such procedure during the trial as terminated the jurisdiction before the rendition of the judgment and because, before the trial judge, there was not only no evidence tending to entitle Riddle to a judgment, so that the judgment in his favor is totally unsupported by the evidence, but, more than that, the judgment rendered is squarely in conflict with all the evidence adduced and, it is contended, when, in such a proceeding as that here involved, a judgment is rendered under such circumstances it is fraudulent and void.
    In regard to the inception of, and procedure in, the proceeding attacked the bill alleges: That at a meeting of the West Chicago Park Commissioners, on June 27, 1905, when only a bare quorum, of the commissioners, was present, that is, four out. of seven, a proposition from Mr. Riddle1 for arbitration of his claim, previously declined twice, was brought forward and a resolution to arbitrate the same passed by a vote of three to one; that no previous notice or intimation was given to any of the Park Commissioners, except those who were friendly to Biddle and in advance committed to his arbitration proposal, was given that the matter of this claim of Biddle would be presented at that meeting; that at that meeting the resolution was “purposely not presented in the regular order of business, and was withheld until after a motion to adjourn was made and ostensibly carried and the public and press reporters had left the room under such belief, when it was presented and passed or announced as passed by the vote of three of said commissioners, as aforesaid,” and that the minutes of said meeting have never been approved; that the resolution then introduced and passed as aforesaid is as follows:
    “Whereas, Francis A. Biddle, of Chicago, claims-that there is due and owing to him from the West Chicago Park Commissioners certain sum or sums of money for professional services by him rendered to said West Chicago Park Commissioners; and,
    Whereas, said Biddle has begun and there is now pending a suit by him against the said West Chicago Park Commissioners, in which suit said Biddle seeks to recover for services rendered by him to said West Chicago Park Commissioners; and,
    Whereas, The West Chicago1 Park Commissioners and said Biddle desire that the matter of his claims against this body be adjusted and determined without délay;
    Therefore, The President and Secretary of this Board are authorized and empowered to enter, into an agreement with the said Biddle for the determination and final adjudication of the said claims of the said Biddle, such agreement to be under and in pursuance of an act entitled ‘An Act to avoid delay in the administration of justice, ’ approved June 17, 1887, in force July 1, 1887; such agreement to be in writing, signed by the President and Secretary of said Park Board and attested by the seal thereof, and also to be signed and sealed by the said Francis A. Biddle in accordance with the provisions of the said statute; and,
    Resolved further, That the President and Secretary of this Board are hereby authorized to agree with said Francis A. Biddle upon some judge, either of the Superior or Circuit Court of Cook County, who shall try and dispose of the questions arising upon the claims of said Biddle according to the said statute so approved June 17,1887, and in force July 1,1887, and also agree that such judge before whom such matter shall be heard shall within ten days after the concluding of the hearing thereof enter final judgment therein.”
    That an agrément was afterwards signed by the president and secretary of the Commissioners, as the basis for the submission of the controversy to a judge or arbitrator, but that agreement was not signed by any duly authorized attorney in fact for the Park Commissioners and is invalid; that said agreement is as follows :
    ‘ ‘ State of Illinois, County of Cook, ss.
    In the Circuit Court of Cook County.
    Francis A. Biddle
    vs.
    West Chicago Park Commissioners.

      First. We, Francis A. Biddle and the West Chicago Park Commissioners, hereby mutually agree to submit to Judge Lockwood Honoré of the Circuit Court of Cook County, certain matters in controversy between us, for his determination without a jury, he to hear the same forthwith, and to enter the judgment or decree of the court therein within ten days, after such hearing is concluded; the matters in controversy so to be submitted being those now pending and undetermined in a certain suit brought in the Superior Court of Cook County by the said Francis A. Biddle against the said West Chicago Park Commissioners.

      Second. That such judgment or decree shall .contain a statement as to what matters in controversy were so submitted and such statement thereof shall be conclusive.

      Third. That no record except of this agreement and of such judgment or decree shall be made as to the matters in controversy so submitted, or as to the proceedings had on the hearing thereof.

      Fourth. That such judgment or decree may be enforced in like manner as other judgments and decrees of such court.

      Fifth. That we each to the other hereby waive all right of appeal from such judgment or decree and release all errors that may intervene in the hearing of the matters so submitted, and in the entering up of the judgment or decree herein and agree that this release of error may be plead in bar of any writ of error that may be sued out as to such judgment or decree.
    In witness whereof the said Francis A. Riddle has on this 5th day of July, A. D. 1905, set his hand and seal, and the West Chicago Park Commissioners have caused this instrument to be executed, signed by its President and Secretary, and attested by its seal on this the 5th day of July, A. D. 1905.
    (Signed) Francis A. Riddle. (Seal) West C'hicago Park Commissioners. (Seal) (Signed) By Fred A. Bangs.
    Pies, of West Chicago Park Commissioners.
    By Walter Fieldhouse,
    Sec’y of West Chicago Park Commissioners.
    (West Chicago Park Seal.)
    Commissioners’ O'. K. as to form.
    Delavan B. Colb, Atty.”
    That thereafter nothing was done in said proceeding by either party until “on or about July 13, 1905, said Riddle, or some one in his behalf, and in the absence of complainant and of any counsel or other person professing to represent it and without any notice to conrplainant, filed with the clerk of said court a duplicate of the said agreement for submission; and the said clerk, then or later, pretended) to write upon the docket of the court-a cause as pending, entitling the same as ‘Francis A. Riddle vs. West Chicago Park Commissioners, Assumpsit’ that on July 21, 1905, the Park Commissioners rescinded the resolution of June 27, 1905, by a resolution as follows:
    ‘ ‘Whereas, in pursuance of a resolution of the Board of West Chicago Park Commissioners, purporting to have been passed on June 27, A. D. 1905, and purporting to authorize the submission of the claim of F. A. Biddle for extra attorney’s fees and for professional services which he claims to have rendered for said Board, and purporting to authorize the president and secretary of said Board to sign a stipulation submitting said claim of F. A. Biddle, amounting to the sum of $27,624.50, to Hon. Lockwood Honoré, Circuit Court Judge, under the statute of this State commonly known as the ‘Tuley Act;’ and
    Whereas, it appears from the records of the Board of West Chicago Park Commissioners that the claim of said F. A. Biddle, being for the very same services mentioned and included in the above pretended resolution, was, on the 23rd day of July, A. D. 1901, duly passed upon by the Board of West Chicago Park Commissioners, and by vote of said Board said claim of said Biddle was rejected; and
    Whereas, on the 30th day of December, A. D. 1904, the said claim of said F. A. Biddle aforesaid, was again presented to the Board of West Chicago Park Commissioners for their consideration, and was again rejected by said Board by three votes in the affirmative and three votes in the negative; and
    Whereas, it also appears from the records aforesaid that during the time while said F. A. Biddle claims to have rendered extra professional services as an attorney at law for the said Board of West Chicago Park Commissioners, and mentioned in the resolution purporting to have been passed on the 27th day of June, 1905, the said F. A. Biddle was regularly employed by the said Board as its attorney at a regular fixed and stipulated sum per month, which monthly payments were paid to him in full payment and satisfaction of and for any and all services rendered by said F. A. Biddle as an attorney, and all professional services rendered by him for said Board of West Chicago Park Commissioners during all of said time; and
    Whereas, the records of said Board further show that during the very same time when said F. A. Biddle claims to have rendered extra professional services as set forth in his claim, and referred to in the resolution purporting to have been passed on June 27, 1905, the said Board of West Chicago Park Commissioners were obliged to employ three other attorneys to assist the said F. A. Biddle in the transaction of necessary park business and to pay to each of said three attorneys large sums of money; and
    Whereas, by the record of the above pretended proceeding of June 27, 1905, (this being the last act of the retiring Board) it appears that but three of the seven commissioners constituting such Board of West Chicago Park Commissioners voted for such resolution; and
    Whereas, The above pretended resolution of June 27, 1905, received but a minority vote of said Board of West Chicago Park Commissioners, and therefore said resolution conferred no legal authority upon the president and secretary of the said Board of West Chicago Park Commissioners to sign their names thereto as president and secretary, or to sign the name of the West Chicago Park Commissioners, or to affix the corporate seal of said Board to the stipulation filed in the Circuit Court of Cook County, in the State of Illinois, on the 13th day of July, 1905, entitled ‘F1. A. Biddle v. West Chicago Park Commissioners,’ and that this Board is advised and is of the opinion that such pretended submission was wholly without legal authority on the part of said president and secretary of said Board of West Chicago Park Commissioners; be it therefore
    Besolved, By the West Chicago' Park Commissioners that the pretended action of the minority members of the Board of West Chicago Park Commissioners on June 27, 1905, and relating to the claim of the said F. A. Biddle, is hereby declared to be wholly void, of no force or effect.”
    That no action whatever was taken in said pretended cause or proceeding until after the passage of said rescission resolution, other than said act of Biddle, or in his behalf, on or about July 13, 1905, nor was there any appearance before the judge or arbitrator or in the Circuit Court by the complainant or by Biddle or by any one in behalf of either complainant or Biddle prior to that rescission; that immediately after the passage of the rescission resolution notice was given to Biddle that a motion would be made to dismiss the proceeding out of court and, on July 22, 1905, counsel for both parties accordingly appeared before the trial judge, Judge Honoré, in open court, and counsel for complainant then, before any step' had been taken or evidence heard, moved for a dismissal, protested against the taking of any further steps, and, in support of the motion, presented a certified copy of the said rescission resolution; that Judge Honoré then announced that on August 1, 1905, he would hear further argument upon the motion; that, on August 1, 1905, Judge Honoré called the cause for trial and, at the outset, before any evidence was offered or heard and before any other proceedings were had or taken, complainant, by its attorney, again moved for the dismissal of the proceeding, on the ground that the judge had no jurisdiction, and protested against any further proceeding therein but the motion was overruled and the protest remained unheeded; that on said August 1, Judge Honoré also stated he would call the cause for trial and proceed with the hearing thereof on September 20, 1905, and, at the same time, announced “that complainant would be understood as thereafter objecting to said proceeding, at all stages, without making any further objections thereto or making, in the future, any further motions therein to dismiss the same;” that on said September 20, although complainant, by its counsel, again objected and protested against any further proceedings in the matter, said judge proceeded with the trial and with the taking of testimony and from time to time continued the taking of evidence therein, on behalf of said Biddle, and finally entered said judgment in favor of said Riddle; that the hear: ing of the cause was completed on September 28, 1905, and the parties with their counsel then, left the court without any order of continuance being made; that until the rendition of said judgment no order was entered in said cause, except orders of continuance from time to time, the first of which orders of continuance was entered on October 4, 1905, and none of them was made upon any motion by or on behalf of complainant; that some, if not all, of these orders of continuance were made by the trial judge at his own instance and of his own volition without the presence or even the knowledge of either of the parties; that one of said orders of continuance, which continued the cause to October 30, 1905, was entered on October 23, 1905; that a day or two before October 26,1905, Judge Honoré notified the attorneys for the parties that on that day he would, of his own motion, hear further evidence, and, over the objection of complainant, Judge Honoré did on that day proceed with the hearing .of further evidence and thereafter the taking of evidence was continued from time to time until November 1, 1905, when the. hearing of evidence was completed; that complainant authorized no one to appear for it in said cause or to submit the controversy in its behalf and, except to object to his proceeding therewith, no one did appear for it or on its behalf in said cause before said judge at any time; that, except as it appeared in the final judgment order, said agreement of submission was' never entered of record nor was there any motion or request by either party that it be so entered, neither was any attempt made to enter said agreement of record, otherwise than in the said judgment order.
    Exhibit 5, attached to the amended bill, is alleged to be “a full and accurate report and exhibit of all the evidence given in said pretended cause before said judge or arbiter,” and, upon the face thereof, that exhibit appears to be a report of all the proceedings and the evidence before Judge Honoré, taken s'tenographically from day to day beginning with July 22, 1905. From this exhibit it appears that Mr. Benjamin F. Bicholson appeared before Judge Honoré on July 22, 1905, as specially authorized by the Parle Commissioners to procure the dismissal of the cause out of court. But, in connection with the evidence and the taking thereof, it appears, also, that, beginning with the introduction of the first evidence on September 20, 1905, and continuously until the conclusion of the evidence, Mr. Bicholson was present and participated at all the hearings and that then and thereafter, in argument and by the presentation of written briefs and arguments, Mr. Bicholson fully contested the merits on behalf of the Park Commissioners. He, on appellant’s behalf, from time to time objected to the competency and materiality of evidence, cross-examined plaintiff’s witnesses and, after the plaintiff closed his case, produced witnesses and introduced counter evidence on behalf of the Park Commissioners. In other words, he, on behalf of appellant, participated in the trial of the merits and, in that respect, conducted the appellant’s side from the start to the finish of the trial. Mr. Delavan B. Cole was also associated with Mr. Bicholson, part of the time, in representing appellant in the trial. In the bill it is alleged that in response to requests of Judge Honoré, counsel for both sides presented to him, briefs and arguments, ‘ ‘ outside of court, ’ ’ the last being presented on November 10, 1905.
    As to the attack upon the judgment on the ground that it was inequitable upon the merits and erroneous it is useless to refer to the allegations of the bill in that respect, because the court considers the judgment as one rendered by a court of common law jurisdiction in the exercise of its ordinary jurisdiction, and a bill in equity does not lie on the ground of the judgment being inequitable and erroneous.
    The grounds of the attack upon the judgment in support of the theory that the judgment is void because fraudulent, as stated in the bill, are in substance and effect: that there was absolutely no evidence adduced before the trial judge which tended to support the judgment and the judgment was rendered in square opposition to the evidence adduced; that there was no evidence before the trial judge tending to show or upon which could properly and lawfully be predicated a finding of an employment of Biddle before his employment as general attorney and counsel for appellant or an employment to render any special or extra services in the Dreyer litigation, or a finding of an agreement to pay him any extra or special compensation for services in that litigation; that Biddle only rendered services of a supervisory character, in that litigation, and that as he was the general attorney and counsel of the Park Commissioners, a municipal corporation, while rendering whatever services he did render, it was unlawful to pay him or to contract with him that he should be paid any extra or special compensation beyond his salary for services either in that litigation or in the compromise and collection subsequent to the rendition of the decree against the bank; that the amount of the judgment is grossly, in excess of the value of any services rendered; and that as the Park Commissioners undoubtedly had the power, under the law, to discharge Mr. Biddle, at any point of time they might desire to do so, therefore there was no room for the rendition of a judgment against the Park Commissioners for salary for the unexpired portion of the year 1900.
    Barry S. Mecartney, for appellant.
    Area N. Waterman and William Sherman Hay, for appellee; Hay & Brown, of counsel.
   Mr. Presiding Justice

Chytraus delivered the opinion of the court.

At the beginning of the appellant’s brief it is asserted of the bill herein that it “was filed to set aside an alleged award.” Counsel for appellant fails to differentiate, in regard to contestability, between an award returned in an arbitration and a judgment rendered in a court of justice. Undoubtedly it is the law governing in respect to arbitrations in pais that while an award will not be set aside because, by the light of the evidence that was introduced before the arbitrators, it may be found not to be sustained by the weight of the evidence, yet, when, by that light, the award is found to be so grossly wrong and unjust as to shock the moral sense and an inspection of the evidence upon which it is based discloses either no support or foundation for the award or such slight and insufficient foundation that the conscience is shocked by the injustice, then the award will be set aside upon a bill in equity. In Morse on Arbitration and Award, page 539, it is said, in this connection, that a common case where fraud or corruption is inferred is where the award is obviously and extremely unjust. In such an event, it is said, the court will imperatively presume the corruption or misconduct of the arbitrators and will vacate their award, upon proceedings in equity instituted for that purpose, and authorities are cited. Later cases laying down that rule with clearness and distinctness are Perry v. Insurance Co., 137 N. Car. 402, and Insurance Company v. Hegewald, 161 Ind. 631. The rule is also recognized and conceded in Van Cortlandt v. Underhill, 17 Johns. (N. Y.) 405, and in Burchell v. Marsh, 17 How. (U. S.) 344. Arbitrations in pais are purely contractual transactions.

The same rule as to contestability seems to obtain even in arbitrations held under a statute or a rule of court. Anderson v. Taylor, 41 Ga. 10. The distinction between these arbitrations and arbitrations in pais is that in the former the arbitrators selected make a return of their award into some court of law where objections or exceptions may be filed to their award, When objections or exceptions are filed there is a hearing upon these by the court who then either affirms the award and enters a judgment of the court thereupon or disaffirms the award and enters judgment nullifying the award. These proceedings are in their nature judicial, but there seems to be a limit, upon the extent to which the awards therein may be questioned by the courts of law upon such objections or exceptions. In the last cited case, at page 19, it is said: “It appears to be settled that a court of law will not, even when the submission is made a. rule of court, enter into the merits of an award, but will look only to legal objections on the face of it, or such as go to the misbehavior of the arbitrators.” We are not, however, at this time concerned with such arbitrations.

As to the fraud that will nullify the decision of a special statutory tribunal, Mr. Justice Peckham, speaking for the court in Fallbrook Irrigation District v. Bradley, 164 U. S. 112, said: “Very possibly a decision by a statutory tribunal which included tracts of land within the district that plainly could not, by any fair or proper view of the facts, be benefited by irrigation, would be the subject of a review in some forum and of a reversal by the courts, on the ground that the decision was based not alone upon no evidence in its favor, but that it was actually opposed to all the evidence and to the plain and uneontradicted facts of common knowledge, and was given in bad faith. In such case, the result would not have been the result of fair or honest, although grossly mistaken, judgment, but would be based upon bad faith and fraud, and so could not be conclusive in the nature of things.”

The obstacle appellant encounters in the case at bar, however, is that the attack made by the bill is not upon an award, as argued or assumed throughout appellant’s brief; nor is it upon a judgment of a special statutory tribunal. The attack is upon a judgment of a common law court—a regularly constituted court, of justice. The statutory enactment, under which the parties acted in submitting their controversy, is to the effect that the parties may appear in person or by attorney in court and that the judgment may be enforced as other judgments of the court. Furthermore it is settled, by the decision in the case of Farwell v. Sturges, 165 Ill. 252, 272, that such proceeding is not an arbitration, but a judicial proceeding in a court of general jurisdiction and one at law or in chancery, according to the nature of the particular case that may happen to be before the court. In rendering the judgment attacked Judge Honoré was performing his duty as a Circuit Court judge and exercising the function of the judicial department—one of the three co-ordinate branches of the government of the State of Illinois. The dispensation of justice by the courts of the State is a governmental function and, in that respect, unlike a mere award, which obtains its validity, force and efficacy only from the private agreement of the parties to the arbitration. 1 ‘ The submission is the agreement of the parties, and the arbitrators and courts can only carry it into effect, according to its terms and conditions.” Buntain v. Curtis, 27 Ill. 373, 377; 1 Phillipps on Ev., (5th Am. Ed.) 196.

The general rule in case of an attack by a bill of complaint upon a judgment of a common law court, rendered in the exercise of that court’s general common law jurisdiction, is stated in Bardonski v. Bardonski, 144 Ill. 284, 289; as follows: “It is well settled that equity will not interfere with the enforcement of a judgment at law, unless the judgment debtor could not have availed himself of his defense at law, or was prevented from so doing by the fraud of the opposite party, or by accident or mistake unmixed with fault or negligence on his own part. ’ ’

No authority has been cited to us, and in our own research we have found none, holding that a judgment rendered by a common law court in the exercise of its ordinary common law jurisdiction may be interfered with by a court of equity either because the judgment may be so erroneous, unjust and wrong as to shock the moral sense or because the evidence upon which it is based may in no wise support it or may give it merely such slight and insufficient support that the •conscience of the chancellor is shocked by the injustice of the judgment. The jurisdiction of courts of equity in respect to granting new trials at law and nullifying or restraining the enforcement of judgments at law is well settled; but, among the recognized grounds for a court of equity exercising such jurisdiction, we find none such as the reasons for equitable intervention which are set up in appellant’s bill. Courts of chancery cannot review the judgments of courts of law for errors in decisions upon either questions of fact or •points of law, no matter how plain or obvious such errors may be.

It is contended that, although there was an agreement executed to submit the cause, under the act to enable parties to avoid delay, there was not such submission by appearance in court as the act requires and, furthermore, that there was a revocation of the submission, of which the judge to whom it was submitted was in due season informed, and, hence, it is argued, the judge who heard the cause was without jurisdiction to hear or to proceed with the same. Having considered, in connection with the allegations of the bill itself, the facts as they appear in “Exhibit 5,” we do not see how appellant can now derive any benefit through these contentions, whether they be, in point of fact, well taken or not. The only reason why Judge Honoré should not have proceeded with the hearing of the cause, would have been either because, notwithstanding appellant had entered into the agreement to dispose of the cause or controversy in the Circuit Court, according to the mode of procedure provided for by the act in question, yet appellant did not make ■the preliminary formal appearance in court provided for by the statute, or because appellant, before appearing, rescinded its resolution to submit and refused to carry out its agreement in that respect. The appellant’s difficulty in this connection lies in the fact that appellant subsequently undertook to experiment with the court and to speculate upon the result of a hearing. There is here no question but that appellant, by a formal agreement, had agreed to submit the cause, under the act in question, to the judge who heard it; but the question is whether there is any equity in the contention that appellant should have been permitted to refuse to carry out its contract.

The objection of lack of a preliminary formal appearance and submission we regard as waived by the fact that there was a full and complete hearing of the cause in which appellant participated. Appellant could not, so far as appears from this record, rightfully rescind its resolution of submission and refuse to carry out its agreement. There may be some question with reference to the effect of such rescission and refusal upon the rightfulness of the judge’s proceeding with the hearing of the cause, but we think that by participating in the hearing, as appellant did, to the fullest extent, that question, if any there be, is foreclosed. When entering upon the hearing, appellant knew that one of two things would happen, either appellant or Mr. Biddle would prevail. Sitting as a court of equity in review of a chancellor’s decree, we find no equity in the idea that appellant engaged in the hearing upon the condition that, if it prevailed, Mr. Biddle would be concluded by the judgment, but should he prevail equity would require that the judgment in his favor be set aside or the collection thereof restrained.

It is alleged in the bill ‘ ‘ That no one was authorized to appear for complainant in said pretended cause and to submit, in its behalf, said alleged controversy or any other controversy between said Biddle and complainant.” When making this general allegation, appellant was fully acquainted with all that had occurred in court in connection with the hearing, yet the allegation does not specifically deny that the attorneys who contested the merits on appellant’s behalf were authorized so to contest. In appellant’s reply brief it is, so far as the present proposition is concerned, asserted that this allegation “stated merely the legal effect, as argued above, of proceeding with the hearing after the court had overruled an objection to jurisdiction, viz.: that it amounted to a mere ‘protest against the claim of Biddle,, in case the court, over complainant’s objections, took cognizance thereof.’ ” Without this admission in this court, it would possibly have appeared that Mr. Bicholson and Mr. Cole, reputable members of the bar of this court in good standing, had, without authority, appeared before Judge Honoré and conducted a lengthy defense for appellant. This admission, however, relieves the situation. Pleading the legal effect of facts is not good pleading and does not tend to bring about the narrowest possible issue of fact, which is the office of pleadings. The facts in regard to what, took place at the hearing appear from “Exhibit 5,” which, as well as the bill itself, is a pleading of appellant. In “Exhibit 5” we find that, represented by Mr. Bicholson and Mr. Cole, appellant had a full and complete hearing upon the merits and, upon the pleadings herein and upon this admission, the conclusion is inevitable that Mr. Bicholson and Mr. Cole were authorized to appear for appellant in the hearing upon the merits. We also findx in “Exhibit 5,” that Judge Honoré, in disposing of appellant’s motion to dismiss the cause on the ground of a want of jurisdiction in the court, at the commencement of the hearing, stated, “I will deny the motion at this time with leave to' renew it when, on the state of the record, it becomes competent”—to which ruling an exception was taken by appellant. We do not find the motion renewed. The legal effect of appellant proceeding with the hearing after the court had overruled the objection to the jurisdiction was not such as appellant, according to the allegation in its bill, conceived it to be. Under the circumstances of this case, appellant submitted to the jurisdiction of the particular judge and of the court by proceeding with the hearing upon the merits.

Moody v. Nelson, 60 Ill. 229, based upon Low v. Nolte, 15 Ill. 368, is not applicable upon the question that, by reason of the absence of a formal appearance and submission herein, has arisen here.

Various severe criticisms of the acts and doings of the trial judge, who rendered the judgment at law, are indulged in in the bill of complaint, and charges of prejudice and bias are also made, all of which, perhaps, would have been material, had he sat as merely an arbitrator, but cannot be considered inasmuch as he sat as a court.

Under a heading of: “As to the stipulation for a time limit for the award,” it is argued that because the judgment was not rendered within the time limited by the agreement of the parties, therefore the judgment is void. In the statement of facts appellant’s counsel informs us that “the judgment or decree was entered over two' months after the hearing was concluded.”

The statute provides that the judge shall proceed and in a summary manner hear and determine the matters so submitted “and he shall enter a judgment or decree therein, within the time fixed” in the agreement of the parties. Here the agreement of the parties is for the judge “to hear the same the controversy forthwith and to enter the judgment or decree of the court therein within ten days after such hearing is concluded.”

It appears from the allegations of the bill that both parties presented briefs and arguments to Judge Honoré and that the last of these was presented to him on November 10, 1905. On December 4, 1905, he informed the parties of his decision and thereafter the judgment order was drafted and the judgment entered on December 6, 1905.

Our Supreme Court has held that, in legal contemplation, the word “hearing,” when used in connection with the trial of a lawsuit, includes not only the listening to the examination of the witnesses but the entire •judicial examination of the issues, both of law and of fact, between the parties. Grlennon v. Britton, 155' Ill. 232. Consequently the word embraces the listening to the arguments of counsel on both sides if oral arguments are made and the reading of the arguments if written or printed arguments are presented; and, also, the consideration of these arguments in respect to both points of law and of fact. A less comprehensive meaning of the term would not give to parties such “hearing” as they are entitled to under the law. Besides, it may well be argued that the statutory provision, as to the time within which the judgment should be rendered is merely directory and not mandatory.

We regard the spreading of the submission agreement of record in connection with the entry of the judgment order, as was done in this case, sufficient, although the better practice would be to order that' it be entered of record previous to the commencement of the hearing.

Other contentions are made, which have all been carefqlly considered', but we do not find any of them of such merit as would justify a reversal of the decree of the learned chancellor. Entertaining the views expressed we could not and do not, notwithstanding the extensive arguments made upon the merits, express any opinion in that regard.

Affirmed.


author: Mr. Presiding Justice Chytraus

text:
    John E. MacArthur, Defendant in Error, v. United States Health and Accident Insurance Company, Plaintiff in Error.
    Gen. No. 14,626.

      Insurance—when failure promptly to pay premium causes policy to lapse. If a contract of accident insurance is for a limited or indefinite period and expires from time to time, subject to renewal at the option of both parties, by the failure to pay an additional premium, essential to the renewal of the insurance, causes a lapse of the policy.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed November 19, 1909.
    Statement by the Court. A trial by jury having been had and a verdict for plaintiff returned, a judgment was rendered against the defendant, plaintiff in error here, for $162, upon an accident insurance policy. Plaintiff below, a dentist, to whom the policy was issued, suffered an accident on March 5, 1907. A tooth upon which he was working broke and the excavator he was using ran underneath the nail of the index finger of his right hand. He was disabled for some time.
    Plaintiff and J. Y. E. Wyatt, the agent of the defendant company, were members of the same lodges of Odd Fellows and Eagles. Wyatt had solicited plaintiff to take out the policy. Plaintiff while being solicited told Wyatt: “I haven’t got the money.” But Wyatt, to induce plaintiff to insure, said: “That’s all right; you can give me this premium any time you meet me at the Odd Fellows or Eagles and it will be all right—any time that you have it, and can spare it, pay it. This will continue your policy in force until the first of August. That ought not to be very hard for you to meet now. And on the first of August premium and [then] two seventy-five a month.” To this plaintiff answered: “I may not be able to hand this over -to you the first of the month?” Whereupon Wyatt replied: “That’s all right; any time, just drop over and pay it to me, and I will keep your policy in force.” Thereafter the parties entered into the contract, evidenced by the policy dated June 21, 1906. The negotiation for the policy took place at the doctor’s office. Subsequently the policy, on the date it bears, was delivered at Wyatt’s office. The contract provides that upon certain stated considerations the company “Does hereby insure the person described in said schedule, subject to all of the conditions herein contained and endorsed hereon, from 12 o’clock noon, standard time, of the day this contract is dated, until 12 o’clock noon, standard time, of the first day of August, 1906, and for such further periods, stated in the renewal receipts, as the payment of the premium specified in said schedule will maintain this policy and insurance in force.” Thereafter the policy specifies the different indemnities or amounts which will be paid by the company in the event the insured sustains any of certain different kinds of injuries. The policy also contains a provision as follows: “An agent has no authority to change this policy nor waive any of its conditions. Notice to or from any agent or knowledge acquired by him, shall not be held to effect a change or waiver of this policy or any condition thereof. No * * change in this policy or waiver of any of its conditions shall be valid unless agreed to in writing by the president, vice-president or secretary of the company and endorsed hereon.” Upon the back of the policy we find the following:
    “This Policy is issued to and accepted by the Assured subject to the following conditions:
    (1) If the payment of any renewal premium shall be made after the expiration of this policy or the last renewal receipt, neither the assured nor the beneficiary will be entitled to recovery for any accidental injury happening between the date of such expiration and 12 o’clock noon, standard time, of the day following the date of such renewal payment; nor for any illness originating before the expiration of thirty days after the date of such renewal payment. The acceptance of any renewal premium shall be optional with the company. ’ ’
    Upon the back of the policy we also find' a copy of plaintiff’s application for the insurance and therein, over plaintiff’s signature, the following agreement: “I understand and agree that * * * the company is not bound by any knowledge of or statements made by or to any agent unless written hereon. I further agree to accept the policy subject to all its conditions and pay the monthly premium of two and seventy-five hundredths dollars, in advance, without notice.”
    Plaintiff did not pay the first premium, for the issuance of the policy, until some time in July. There is no evidence of the payment of any premium for the month of August and, therefore, so far as the record shows, MacArthur carried no insurance for that month.
    The next premium was paid August 28, 1906, when a receipt was given, worded as follows:
    “South Chicago III., Division, August 28, 1906.
    Received of J. E. MacArthur two and seventy-five-hundredths dollars, continuing in force policy No. 435,-927 from date hereof until the first day of October, 1906, subject to all the provisions and conditions of said policy.
    J. V. E. Wyatt,
    Form 125. Local Collector.”
    The period for which insurance was given for this $2.75, paid August 28, the writing expressly states to be “from the date hereof until the first day of October, 1906.”
    Plaintiff appears to have paid the next premium on December 14, 1906, and he then received a receipt worded as follows:

      “United States Health and Accident Insurance Co., Saginaw, Mich.
    South Chicago', III., Division, Dec. 14, 1906.
    Received of Dr. MacArthur five and fifty-hundredths dollars, continuing in force policy No.from date hereof until the first day of January, 1907, subject to all provisions and conditions of said- policy.
    J. Y. E'. Wyatt,
    Local Collector.”
    Respecting this November and December payment plaintiff testified he had met Wyatt at a lodge meeting, in December, and had then told him that “I had been going to send him over the premium for November and December, but I had not yet done so,” and Wyatt answered “That’s all right, doctor, any time you happen to be over in South Chicago buying your Christmas presents drop into the office and pay me your premium,” to which plaintiff then replied: “All right; I was a little bit short of money but I will do so.” As a matter of fact this premium was not paid until it was called for, by Mrs. Wyatt, at the doctor’s office. The writing expressly states that the money paid this time continued this policy from the date of the writing, December 14, 1906, to January 1, 1907.
    The doctor testified that he paid no premium “for the month of January, 1907, or during the month of January, 1907.” He testified he did pay a premium during the month of February. Except as' plaintiff testified he paid the premium “during” that month there is no evidence as to when it was paid, what exact period it was paid for, nor what writing, if any, was given when it was paid.
    A postal card from the company, postmarked Feb ruary 23, 1907, was sent to and received by plaintiff. Upon that postal card, among other things, the following was printed: “Tour March premium of $2.75 on policy No. 435,927 is due and must be paid to J. V. E. Wyatt, 9154 Commercial Ave., South Chicago, Ill., on or before March 1, 1907, or your policy and insurance will be void.” “The payment, as directed, of the premium specified in this notice will continue in force the aforesaid policy from date of payment until the first day of April, 1907, subject to all the provisions and conditions of said policy.” Below was endorsed: “Received Payment. J. V. E. Wyatt, Local Collector.”
    On March 11, 1907, after he was injured, plaintiff sent a postoffice money order by mail to Wyatt, in payment of this March premium and Wyatt returned to him, by mail, receipted and signed, the above postal card which plaintiff had evidently forwarded with his money order. There is no pretense of any conversation or express understanding regarding the payment of the March premium. When MacArthur paid the premium, on March 11, 1907, the company had no information of his having met with an accident.
    Utt Bros., for plaintiff in error.
    Mason & Wyman, for defendant in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

The theory of contract upon which plaintiff, MacArthur, seeks to recover in this case appears to be that the company was insuring him against accident continuously, from the time the policy was issued, for an indefinite period and that premiums were payable monthly, in advance, but that prompt payment of premiums had been waived. If such contract has been shown it must have arisen by estoppel for no such contract is expressed by or can be implied from the writings between the contracting parties.

Plaintiff’s attorneys contend that in view of the facts of the case and of the terms of the policy “there was either a waiver by the company of the terms of its policy requiring prompt payment of premiums, or, there was not such waiver and the policy was in force March 5, 1907, according to the terms thereof,” and that proposition, having been presented, is argued as if the question of waiver or no waiver were the question which determined whether or not the original policy was in force at the time MacArthur sustained his injury. The proposition appears to us to overlook the real question in the case, that is, the real nature of the contractual relation between the parties.

It is doubtless true that courts do not regard forfeitures with favor and will not enforce forfeitures on account of failure to make payments upon contracts promptly unless the evidence is clear that such was the intention of the parties. _ But is there any question of a failure to promptly make payment upon an existing contract involved here?

It is also true that if the practice and course of conduct of the payee in a contract has been such toward the payor as to induce a belief that so much of the contract as provides for a forfeiture in a certain event will not be insisted upon, or if the payee has given any express assurance that such forfeiture will not be insisted upon, the payee will not be allowed to set up such forfeiture as against one in whom such practice, course of conduct or assurance has induced such belief. But is there any question of a forfeiture involved here?

The principle that enables courts to act and upon which courts do act, when they prevent and refuse to enforce a forfeiture where a payee has induced in the mind of the payor the belief, upon which the payor has acted, that there would be no forfeiture for failure to make payments promptly, is the doctrine of estoppel in pais. This case now before us, however, is not an instance of a policy providing for the payment of premiums from time to time or a premium in instalments.

The contract we have before us in the case at bar does not contain any provision for forfeiture, because of lack-of promptness in payment, which the defendant company can have become estopped from availing itself of by acts, conduct or assurance. Plaintiff, in reality, is seeking to raise or create, by estoppel, in contradiction of the writings between the parties, a contract between the parties covering the period from March 1,1907, to March 12, 1907, so as to cover March 5, 1907, the day he was injured. This case, in our judgment, involves no question of an estoppel of a forfeiture of an existing contract.

The policy involved, itself, does not purport to insure MacArthur against accidents beyond August 1, 1906. The original contract, by its own terms, expired absolutely on August 1, 1906. True, that original contract provided for renewals from time to time for such further periods or lengths of time, as payments of premiums, which the insured might make, would maintain the policy and insurance in force. But all renewals were optional with MacArthur and, also, as expressly stated, with the company. It is most elementary that there can be no contract without a meeting of the minds of parties. When the original contract expired, and, thereafter, at each expiration of a renewal, it became necessary for the minds of the parties to meet; otherwise there was.here no renewal and, according to the expired contract, no insurance. Each renewal was in fact and in legal contemplation a new contract, not very formally made, it is true; but formality was unnecessary. At each renewal a receipt was given for the new premium. These receipts were something more than mere receipts, for they expressed and evidenced the terms of the new contract in so far as not evidenced by the original expired contract. Each renewal involved as a new provision, to be agreed upon, the length of time for the continuance of the new contract. The case of Kearney v. Aetna Life Ins. Co., 109 Ill. App. 609; is a case where an accident policy contained a provision that “There shall be no insurance under this policy unless the premium is actually paid prior to any accident by reason of which claim is made.” In that case plaintiff attempted to prove a custom on the part of the company to receive payments on renewals at any time within three months of the expiration and, further, that the company held out to those dealing with it that the policies were in force in the interval before payment. Speaking of the proposition which arose in that case the court said (p. 613): “The question here is not as to the right to forfeit a policy in existence, but is as to the right to renew a policy which has lapsed.” With reference to the original contract expiring with August 1, 1906, and to the expiration of each renewal at the date specified in the renewals, respectively, there is no less clearness in the writings in the case at bar than there was with reference to the contract involved in the Kearney case.

In Roberts v. Aetna Life Ins. Co., 212 Ill. 382, a policy was involved which was issued to cover an aggregate' term of one year. The year was divided, however, into four periods of unequal length. The policy was dated March 14, 1899, and after a provision that the insured was insured, for the premium first paid, for a period of two months, contained the following language: “atad in consideration of the further cash payment on or before the expiration of two calendar months from date hereof, of a certain note for six 25-100 dollars, the insurance hereunder shall be in force for four calendar months from date of this policy; and in consideration of the further cash payment, on or before the expiration of three calendar months from date hereof, of a certain note for six 25-100 dollars, the the insurance hereunder shall be in force for seven calendar months from date of this policy” and similar verbiage with reference to the last period of five months. Roberts, the insured, failed to pay the notes for the second and following periods. He was injured July 10, 1899, and died on the 26th of that month. In that case it was held that the contract of insurance expired with each period and that the payment of the note for the second period was a prerequisite “to the existence of any insurance for the second period. ’ ’ The case stood, the court said (p. 393): “on a footing different from one in which failure to pay the premium merely gives the insurer the option to forfeit the policy and terminate the insurance. Here the insurance would not come into existence unless the payment was made, and to bring it into existence required some act on the part of the insured equivalent to the satisfaction of the note or an extension of the time of payment.” This case in the Supreme Court affirmed Roberts v. Aetna Life Ins. Co., 101 Ill. App: 313, where the court said the contract provided for separate insurance covering separate periods of time and that there was no contract of insurance for the period following any date when a premium was due unless the premium then due were paid. The language of the original contract and of the several renewals that appear in the case at bar express expiration and total termination of the several contracts at the specified points of time much more clearly than the contract in the Roberts case. In Hartford Fire Ins. Co. v. Walsh, 54 Ill. 164, 167, it is held that “a renewal of a policy is, in effect, a new contract of assurance, and, unless otherwise expressed, on the same terms and conditions as were contained in the original policy.” To the same effect as the Roberts and the Kearney eases we find Brady v. Northwestern Ins. Co., 11 Mich. 425, where the subject is well considered.

By such plan of insurance as that here involved the insured pays for his insurance from time to time in advance. He makes no promise to pay premiums to become due in the future. Certainly, under such plan, there is in no correct sense any “terms of its [the company’s] policy requiring prompt payment of premiums” of which it must be assumed that there either has been or has not been a waiver as has been assumed by attorneys for plaintiff in their proposition above stated.

To evidence, or as tending to show, a waiver of any provision in the contract between the parties, the plaintiff cannot avail himself of what was said by Wyatt, prior to the delivery of the original policy here involved, for, as said by the Supreme Court in Continental Ins. Co. v. Ruckman, 127 Ill. 364, 373, “A waiver is the voluntary yielding up by a party of some existing right, but until the contract is consummated, the company has no rights which are susceptible of waiver, nor can any condition be properly said to be modified or stricken from a policy until there is a policy, that is, until after the terms of the contract have been agreed upon and the policy issued.” Furthermore, whatever was said in the negotiations previous to the contract cannot be considered for the purpose of varying or changing the express terms of the contract. What Wyatt, the agent, is shown to have said when soliciting the policy must, undef the law, be excluded and disregarded, in so far as it is at variance with the written contract or tends to show a waiver of any of the terms or provisions of the contract. The learned trial judge erred in not so excluding it.

Each renewal being a new and independent contract of insurance and plaintiff, when, on March 5, 1907, he was injured not having renewed his contract for insurance so as to cover that date, was then without any insurance. Twice before had plaintiff, according to the record herein, allowed periods of time to intervene when he did not carry accident insurance under the original contract herein because he failed to renew his contract, namely, during August and during January. Even if this were an instance where the doctrine of estoppel could be applied' against defendant company the plaintiff totally failed, either upon the evidence in his behalf or upon all the evidence, to make out a case whereupon there could be a recovery against defendant. The trial court erred in refusing to direct a verdict for the defendant.

The judgment must be reversed and the cause will not be remanded.

Reversed.


author: Mr. Presiding Justice Chytraus Mack, J.

text:
    Robert Brown, Defendant in Error, v. Mystic Workers of the World, Plaintiff in Error.
    Gen. No. 14,588.
    1. Insurance—when defense arising as result of violation of law not established. If the defense is predicated upon a provision in the certificate to the effect that if the death of the member “shall occur in consequence of any violation or attempted violation of the laws of any state, territory, province or country,” the same must be established by a preponderance of the evidence, and each and every element which constituted the crime charged must likewise be established by a preponderance of the evidence.
    2. Insurance—when declarations of insured competent. A member holding a benefit certificate continues a party to the contract until death ensues, and a material statement by such a member as to acts which tend to show the cause of resulting death are competent as admissions against interest.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed November 19, 1909.
    Statement by the Court. Robert Brown brought suit, in the Municipal Court of Chicago, against the Mystic Workers of the World, a mutual benefit association, and obtained a verdict by a jury and a judgment for $700. Plaintiff in error prosecutes this writ to reverse that judgment:
    The suit was brought to recover a certain benefit, or insurance, payable by the association upon the death of plaintiff’s wife, Emma Brown, who was a member of the association. By a certificate of membership issued which, together with an application for membership and the laws and regulations of the association, constituted the contract involved, the association promised to pay a certain amount to plaintiff upon the death of his wife. On January 1, 1907, Mrs. Brown was taken sick and on January 18,1907, she died from septicemia and pyemia, the result of an infection in connection with an abortion.
    The benefit certificate contains a provision that if the-death of the member “shall occur in consequence of any violation or attempted violation of the laws of any State, territory, province or country,” in which such member may be, then “this certificate shall be null and void and of no effect, and all moneys which have been paid and all rights and benefits which may have accrued, on account of this certificate, shall be absolutely forfeited.” The by-laws of the association provide that no mortuary benefit shall be paid to the beneficiary of a member whose death was caused by “immoral conduct, or as a result of his own wilful act or the violation or attempted violation of any of the laws of the country in which he may be.”
    Bertrand Lichtenberger, for plaintiff in error.
    Johnson Lowenthal and Josiah Burnham, for defendant in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

■ The position of plaintiff in error is that Mrs. Brown produced a criminal abortion upon herself by means of pills taken with that intent and purpose. As we understand the law, the burden of proof rested upon plaintiff in error to establish, by a preponderance of the evidence, each and every element constituting the crime of criminal abortion. The word abortion, alone,' does not imply or convey the idea of criminality. Cent. Die. The jury found the issues against plaintiff in error and it is, of course, impossible to tell what particular element or elements constituting the crime the jury found plaintiff in error failed to establish by a preponderance of the evidence. Practically, the only evidence in the record tending to show her intent to produce a criminal abortion is the testimony of a physician who attended her during her last illness. He testified that she told him she had taken pills to produce the abortion. Mrs. W. H. Coffey testified, in this connection, that Mrs. Brown told her she had been to see a physician, and he told her she was not pregnant and that he gave her some pills.” At another time, this witness says, Mrs. Brown told her a physician had informed her she was pregnant, just one month. There is no claim or pretense of the use of any instrument.

Upon the evidence herein it must be taken as true that Mrs. Brown made the statement, unsworn, that she had taken pills to produce the abortion. Assuming, then, for present purposes, that she did take pills and had the purpose in view to produce an abortion, nevertheless it does not necessarily follow that the abortion which occurred was a criminal abortion nor that the abortion was produced by the pills she stated that she had taken. If it be contended that the crime of criminal abortion is clearly dedueible or inferable from this evidence referred to, the fact that she wished an abortion and the other facts and circumstances appearing in the evidence, the reply is that the jury, in such case as this, must be regarded as fully as capable of deducing or inferring correct conclusions from facts and circumstances proven as are the members of this court. It is clear that although we assume the pills to have been taken by Mrs. Brown, as she stated, such taking has not been so closely connected up, by evidence, with either a criminal abortion or with the death as to justify us in nullifying the verdict of the jury and the judgment of the trial judge. Both the jury and the trial judge exercised judgment upon those questions of ultimate fact and, upon one or both, arrived at a conclusion contrary to the contention of plaintiff in error. We must bear in mind that, except as may be assumed from Mrs. Brown’s statement, it is not shown what the pills she spoke of in fact were. The evidence, for instance, does not clearly show that between the taking of the pills and the abortion there was the relation of cause and effect. While Mrs. Brown said to the doctor that she took pills to produce an abortion, that statement may not, for instance, have satisfied the jury and the trial judge that she took pills with a criminal intent. Here such intent was a necessary element. In order to prevail it was necessary for plaintiff in error to prove such intent by a preponderance of the evidence.

Again, the cause of death being septicemia may, owing to carelessness or otherwise, have been occasioned by infection during her treatment by her physician, perhaps in the tamponing. Septicemia arises by infection from the outside.

If the death were so caused, then, although she had taken pills and although in doing so, she may have had the criminal intent, such infection would be the direct, intervening producing cause of her death, and her death would then not be the consequence or result of her violations of the laws of the State or of her own immoral conduct or violation of law. The quoted provisions of the certificate and by-laws would, in such event, afford plaintiff no defense in this action.

In the argument on behalf of defendant in error it is insisted that.the physician’s testimony as to what Mrs. Brown had told him was incompetent and should be disregarded. The argument is that, unless Mrs. Brown’s statement was part of the res gestae of the fact in controversy between the parties to this cause, it was incompetent in the trial and inadmissible. We do not agree with the contention that unless her statement was part of the res gestae it was incompetent and inadmissible. There is great difference between the contract of insurance by straight life insurance policies and the contract of insurance in a mutual benefit organization, in respect to the relation between the insured and the beneficiary. By a contract of insurance such as that here involved the beneficiary is much more closely identified with the insured than is the beneficiary in the ordinary straight life insurance policy. For instance, the contract here depends for its existence entirely upon the continued! membership of the insured in the association and this involves much more than the mere payment of insurance assessments. In such instances as that now before us the insured continues a party to the contract involved until the very moment when the cause of action accrues to the beneficiary. During the continuance of the contract the insured can at any time, by terminating his membership and in other ways, totally destroy the right or title of the beneficiary. The benefit certificate alone is not the entire contract. Usually the by-laws of the association provide for sick benefits to the member, i. e., the insured, himself.

Regarding the competency and admissibility of declarations by the deceased insured, in a suit by the beneficiary, Prof. Wigmore, in Wigmore on Evidence, sec. 1081, speaking generally, says the situation in respect to these admits of much refinement of reasoning dependent upon the theory of the contract of insurance. We hold in the ease at bar that Mrs. Brown’s statement was an admission made by a party in interest at the time of the making of the admission and, as the admission was not one of a conclusion or deduction drawn from other facts, nor a question of law or a mixed question of law and fact, but an admission of a primary fact—an act of the admitter herself—the evidence of the statement was competent and admissible. The principle of this holding is sustained by Hansen v. Supreme Lodge, etc., 140 Ill. 301, and Van Frank v. U. S. Masonic Ben. Assn., 158 Ill. 560. The weight of the admission toward establishing the fact sought to be proven was a question for the jury.

No other question than those hereby disposed of is raised upon this record.

The judgment of the Municipal Court is affirmed.

Affirmed.

Mack, J.

While I concur in the judgment, it is unnecessary and I am not prepared to determine whether such a statement of the insured as was here offered in evidence is admissible, under the rulings in the Hansen and the Van Frank cases, against a beneficiary even under a fraternal insurance certificate and even though the beneficiary’s rights are contingent in the sense that the insured has the absolute right to change the beneficiary. See 5 Wigmore Evidence, sec. 1081, n. 6, and A. M. Kales “Declarations of the insured against the beneficiary,” 6 Columbia Law Rev. 509.


text:
    J. Charles Barber, Defendant in Error, v. Matthias Koch, Plaintiff in Error.
    Gen. No. 14,592.
    Appeals and errobs—when final judgment rendered an review. If the cause has been tried by a court without a jury, and the Appellate Court finds the judgment rendered against the evidence, a final judgment may be rendered by it and the cause not remanded.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and judgment here.
    Opinion filed November 19, 1909.
    Samuel J. Howe, for plaintiff in error.
    Adams & Froehlich, for defendant in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

Barber, defendant in error and plaintiff below, upon a trial before the court without a jury obtained a judgment for $562.50 against Matthias Koch. Koch prosecutes this writ of error to reverse that judgment. Barber is a real estate agent and bis claim was for a commission upon the sale of Koch’s property, 140 and 142—35th street, in Chicago, to one Maurice Olshan for $22,500. It is uncontroverted in the evidence that another real estate agent, Arthur Weinreb, brought the buyer and seller together and actually made the sale. But Barber makes his claim because Koch, at some point of time previous to the sale, had listed the property with him, Barber, as being for sale and because Weinreb had been in Barber’s office, previous to bringing about the sale, and there obtained his information of the property being for sale. Weinreb denied obtaining information of the property being for sale through Barber’s office and stated! that he obtained the property for sale direct from Koch. It is totally immaterial, so far as the disposition of this suit is concerned, how Weinreb, as a real estate agent, obtained his first information of the property being for sale. He, as the evidence shows, alone, worked up, negotiated and produced the sale. Barber did absolutely nothing to bring about the sale. Had it not been for Weinreb’s labor and efforts no sale would have resulted. So far as this particular sale is concerned nothing in the record indicates that Koch dealt with Barber. He dealt with Weinreb only. We find no promise upon this record, express or implied, by Koch to pay a commission to Barber for this sale. The transactions between Koch and Weinreb raised an implied assumpsit in fact that Koch pay Weinreb for services rendered in making the • sale. The judgment will be reversed and judgment will be rendered here for plaintiff in error.

Reversed and judgment here for plaintiff in error.


text:
    Mae M. Reith, Defendant in Error, v. Leah Getzoff et al., Plaintiffs in Error.
    Gen. No. 14,613.
    Appeals and erbobs—when final judgment rendered on review. If the cause has been tried by a court without a jury, and the Appellate Court finds the judgment rendered against the evidence, a final judgment may -be rendered by it and the cause not remanded.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed November 19, 1909.
    Ela, Grover, March & Eckert, for plaintiffs in error.
    Thomas McEnerny, for defendant in error; John Mahon, of counsel.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

Mae M. Keith, defendant in error, sued Getzoff Sisters, plaintiffs in error, and recovered a judgment for $226.06, in a trial by the court without a jury. Miss' Keith’s claim is that she was employed as millinery trimmer and designer by the Getzoff Sisters, for a period of sixteen weeks, at $45 per week. The amount of wages, weekly, is not disputed. The Getzoff Sisters claim Miss Keith was not employed for any definite length of time. She commenced her work, on September 16, 1907, and was discharged on December 2, 1907. The judgment rendered is for the unexpired portion of a 'sixteen weeks’ period. The only question involved is one of fact. Miss Keith testified and was supported in her version of her claim by testimony of her mother and brother. To the contrary, however, we find not only direct testimony but Miss Keith’s own conduct, which strongly indicates that there was no sixteen weeks ’ contract. Monday, the first day of her employment, she worked; but, without saying anything to her employers, she remained away from her work on Tuesday, the day following, and until Wednesday noon. She was then met, away from the store, by Mrs. Buchman, one of her employers, and explained her absence by saying she had remained away because some one had informed her plaintiffs in error were only going to keep her the opening week and then discharge her. This staying away, for such reason, was a practical termination of the previous employment, whatever its term was. Mrs. Buchman then told Miss Keith they would keep her as long as they had work for her. This was then a re-employment, and for an indefinite period. Furthermore, Miss Keith was away from her work some length of time nearly every week she worked; some weeks two days, and one week three days. During her employment of eleven weeks she drew no regular salary of $45 per week. In the beginning of November she quit her employment but was induced to go back to work. Miss Keith appears to have taken the view, so far as the terms of her employment were concerned, that she was at liberty to do as she pleased. She admitted that during the last three or four weeks she was with the Getzoff Sisters she, by an arrangement with her mother, stayed at home a day, or two days, or three days, each week. Nothing in the record indicates she arranged with her employers so to remain at home.

Considering the facts and circumstances all together we find no warrant for the rendition of the judgment that was rendered. At the time she was discharged she had no contract of employment for a definite term. The judgment must be reversed.

Reversed.


text:
    Matteo Zustovich, Defendant in Error, v. Charles E. Morrison, Trustee of the Estate of Ezekiel Morrison, Plaintiff in Error.
    Gen. No. 15,798.
    Municipai Court—when hill of exceptions not stricken. Held, that while the certificate to the bill of exceptions in question was subject to criticism, it was, however, sufficient, and, therefore, the motion to strike should be denied.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Motion denied.
    Opinion filed November 23, 1909.
    Buell So Abbey, for plaintiff in error.
    Arthur C. Bachraoh, for defendant in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

Defendant in error presents his motion that the writing called a hill of exceptions, part of the transcript of the record filed in this case, be stricken from the record. This is a fourth class case. The ground upon which the motion is based is that the certification by the trial judge is not within either of the two classes of certifications provided for by part six, section 23 of the Municipal Court Act. Reliance is placed upon Seehausen, Wehr So Co. v. Interstate Steel and Iron Co., 150 Ill. App. 179. A careful reading of the statute above referred to would probably have resulted in a better form of certificate. We, however, are of the opinion that as it is shown by the certification of the trial judge, at the commencement of the bill of exceptions, that “on the trial of this cause the following proceedings were had,” and later therein that the statement in question here contains all the evidence, therefore this case does not come within the rule laid down in the Seehausen case. The motion to strike will therefore be denied.

Motion denied.