text:
    Ralph C. Austin, Administrator, Appellee, v. Public Service Company of Northern Illinois, Appellant.
    Gen. No. 6,791.
    1. Appeal and ebbob, § 422

      —when want of definiteness must he raised helow. A defendant who filed no demurrer to the legal sufficiency of the declaration and made no motion for a bill of particulars is not in a position, on appeal from the judgment, to object to the sufficiency of the declaration on the ground that its averments were too general and that, by reason of the failure of plaintiff to specify the grounds on which he based his right to recover, defendant did not have sufficient notice of the character of the case to which it must present a defense, especially where the trial was the second trial of the controversy and all of the facts and circumstances as to the right of action had been brought out in the previous trial.
    2. Evidence, § 52*—what evidence is properly excluded. Evidence as to a matter which is not an issue in a case is properly excluded.
    3. Evidence, § 92*—when witness may not testify as to effect of act. It is not error to refuse to permit a witness to answer a question as to what is the general effect on persons climbing over a stream of water where there is a rapid current, since he could only have had knowledge thereof either from the statements of others or from his personal experience.
    4. Evidence, § 52*—when properly excluded. Evidence which can only result in raising a false issue is properly excluded.
    5. Witnesses, § 275*—what contradictory statements of witness may he shown. While a party may call the attention of his witness to previous contradictory statements of the witness, he cannot introduce evidence to show that certain contradictory statements had been made by the witness.
    6. Appeal and ebbob, § 1241*—when party cannot complain of error in instructions. One party cannot complain on appeal of an instruction given at the request of the other where such instruction states the law substantially to the effect as it was stated in an instruction which he requested.
    7. Electricity, § 29*—when instruction as to electricity is proper. In an action to recover for the death of a boy through coming in contact with defendant’s electric wire which carried a current of 4,400 volts, an instruction to the effect that electricity is a silent, deadly and instantaneous force, and the company handling it is bound to know the danger incident to its use in a public highway and to guard against accident by a degree of care commensurate with the danger, is not objectionable as emphasizing too greatly the dangers incident to handling electricity and impressing the jury that it is a source of danger no matter in what quantity or voltage used.
    8. Electricity, § 29

      —when instruction as to use of "bridge is not erroneous. In an action to recover for the death of a boy alleged to have been caused by his coming in contact with defendant’s electric wire which was strung above the top girder of a span of a public bridge, when he had climbed up an inclined beam of such span to the girder to get at a bird’s nest, an instruction to the effect that the boy had a legale right to go upon any part of the bridge is proper, and it is not necessary that it should limit his right to the use of the bridge to use in a reasonable manner and defendant’s liability to the same liability to which it could be held if it had owned the bridge.
    9. Electricity, § 22*—when boy is not trespasser. A boy climbing an inclined beam of a span of a public highway bridge to the top girder thereof is not a trespasser, as to an electric company whose wires are strung above the girder, but is rightfully thereon.
    10. Electricity, § 12*—what care is required in protecting wires. An electric power company whose wires carrying a high voltage, are supported by poles affixed to a public highway bridge at such a height that they may come in contact with one walking on the top girder of the bridge is bound to anticipate that persons may walk there and to use a degree of care commensurate with the danger.
    11. Instructions, § 81*—when instruction is erroneous. An instruction calling the jury’s attention to certain evidence and directing them to ignore it is properly refused.
    12. Trial, § 276*—what must be included in special interrogatory. A special interrogatory, in an action» to recover for the death of plaintiff’s intestate, acquiring an answer as to the degree of care required of the decedent, is properly refused where it omits essential elements.
    13. Trial, § 268*—when special interrogatory should not be given. A special interrogatory as to a matter not involved in the controversy is properly refused.
    14. Trial, § 268*—what is essential of special interrogatory. A special interrogatory is properly refused where the answer would have been a mere matter of conjecture on the jury’s part.

      15. Trial, § 274

      —what is proper form, of special interrogatory. Special interrogatories referring to evidentiary facts and not to the ultimate facts which the jury are required to pass upon in reaching their verdict are properly refused.
    16. Death, § 44*—what evidence is improper. In an action to recover for the death of plaintiff’s intestate, admission of the verdict of the coroner’s jury in evidence is properly refused.
    17. Appeal and error, § 812*—how questions of improper conduct of counsel must he presented. Questions of improper conduct of counsel, or other matters claimed to be improper in the conduct of a trial, which occur in the court’s presence, cannot be presented for review on ex parte affidavits, but must be recited in the bill of exceptions and vouched for by the certificate of the trial judge.
    18. Death, § 67*—when verdict is not excessive. $5,000 for the death of a 13-year-old boy by coming in contact with defendant’s electric wire, held not excessive.
    Appeal from the Circuit Court of Will county; the Hon. Frank L. Hooper, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    Rehearing denied December 2, 1920.
    Edgar B. Elder and Barr, McNaughtoh & Barr, for appellant.
    Sharp, Heise & Sharp, for appellee.

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

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

This is a suit brought by the appellee, Ralph C. Austin, as administrator of the estate of Louis Hartel, deceased, against the appellant, Public Service Company of Northern Illinois, for the benefit of the next of kin of the deceased, to recover .damages resulting from the death of Hartel, who was a bóy 13 years old, and whose death it is alleged was caused by his coming in contact with a highly charged electric wire of the appellant, while he was on a girder on Brandon bridge, a public highway bridge spanning the Des Plaines River, in the town of Joliet, in Will county. There was a trial by jury, and a verdict and judgment against the appellant for $5,000^ from which this appeal is prosecuted.

This case was considered and passed upon by this court on a former appeal, and was reversed and remanded for another trial. Austin v. Public Service Co. of Northern Illinois, 215 Ill. App. 297. And the circumstances under which Hartel met his death are stated in the opinion previously filed, and are as follows: “Brandon bridge is about 300 feet long, all of iron except the floor, which is of wood. It consists of three spans"standing 16 feet above the floor. The beams or girders on the ends and along the top are 15 or 16 inches wide. At each outer edge of the beams there is a row of rivets with protruding heads. The end beams run up at an angle of about 45 degrees, and can be ascended easily by an active man or boy. Appellant had wires on poles bolted to the bridge within reach of a person walking along on the top girder. Some, but not all, of these wires carried high-tension currents. The high-tension wires had. originally been insulated and suspended too far above the top of the bridge to be so reached. At the time of the accident, and for a considerable time before, the wires had been allowed to sag and the insulation to rot and become ineffective. There was nothing in the appearance of the high-tension wires to indicate their dangerous character, or to distinguish them from the harmless wires. There were no signs or warnings on the bridge or in the vicinity.The wires were installed and maintained by the appellant by sufferance of the public authorities, and without other right or claim of right. For a considerable time before the accident they were within easy reach of the top of' the span, and contact with them meant instant death. There was much travel on the public highway and across the bridge, and for a long time many children had frequented that locality, playing thereabout; and the boys were in the habit of running up and down the angling beams at the end of the bridge. Louis Hartel was there with four other boys that had been accustomed to so playing on and using the bridge. They noticed a bird’s nest at the top of the girder. Hartel went up the incline and pulled out the nest, walked along the top of the girder about 25 feet above the floor of the bridge, reached up and took hold of a wire carrying 4,400 volts, and was instantly killed, his body dropping into the stream below.”

A number of grounds are argued on this appeal for reversal of the judgment. It is claimed that the averments in the declaration are too general and should have been more specific as to the particular grounds upon which the appellee based his right to recover; and that by reason of the general terms in which the declaration is drawn, the appellant did not have sufficient notice of the kind of a case to which it was expected to present its defense. No claim is made that the declaration by its averments is not legally sufficient, as a statement of a cause of action, and no demurrer was filed to question its legal sufficiency; and appellant did not make any motion for a bill of particulars, which it had a right to make if it thought it was entitled to a more specific statement of the appellee’s cause of action. Under these circumstances appellant is not now in position to question the sufficiency of the declaration on the ground stated. Moreover, it is apparent that appellant must have had a sufficient knowledge of the specific matters constituting appellee’s cause of action at the second trial of the controversy, inasmuch as all the facts and circumstances concerning his right of action had been brought out on the previous trial.

The appellant contends that the court erred in excluding certain testimony offered on the trial. Herbert Willard, who was a witness for appellant, and who had testified that he was construction foreman for the appellant, and had experience in climbing poles and other high elevations, located over bodies of water in which there was a rapid current, was then asked the following question: “What, if any, difference is there between climbing over a rapidly running stream, and climbing to a high elevation on the ground?” Also: “Do you know what the general effect is on persons climbing over a stream of water where there is a rapid current?” Both questions were objected to, and objection sustained. We think the objections were properly sustained. The difference between climbing over a rapidly running stream and of climbing to-a high elevation on the ground was not a matter of issue in the ease, nor was the matter of the general effect on persons climbing over a stream of water where there is a rapid current; moreover, the witness could only have had knowledge about this matter from what he had heard others say, or from personal experience, neither of which was competent as evidence; an answer to the question could only have resulted in raising a false issue. Appellant also complains of the refusal of the court to permit it to introduce evidence to show that certain contradictory statements had previously been made by the witness Matt Grollick, whom the appellant had called in its behalf. The court permitted counsel to call the witness’ attention to such alleged former statements and this was proper; but under the rule upheld in Chicago City Ry. Co. v. Gregory, 221 Ill. 591, the evidence offered was properly excluded. And we find no substantial error in the record, either in the admission or exclusion of evidence.

It is contended that there was error in the giving and refusing of instructions. Appellant complains of instructions 4 and 5 given for appellee, which contain statements concerning the degree of care required of a boy 14 years of age. We áre of opinion that the instructions correctly state the law; and inasmuch as the law is stated substantially to the same effect in instruction 19, which was given at the instance of appellant, it is not now in position to say that it was not applicable to the present case. Complaint is also made of the giving of instruction No. 3, by which the jury were told that electricity is a silent, deadly and instantaneous force, and a company handling it is bound to know the dangers incident to its use in a public highway, and is bound to guard against accident by a degree of care commensurate with the danger incident to its use. It is argued that this instruction put too great emphasis on the dangers incident to the handling of electricity, and tended to impress upon the minds of the jury that it is a source of danger no matter in what quantity or voltage it is used. There may be cases where the objections made might have a bearing, but they cannot be considered as well taken in a case where the wire carried an electric current with a voltage of 4,400. The instruction is drawn in conformity with the doctrine held in Hausler v. Commonwealth Electric Co., 240 Ill. 201, and we think was properly given in this case.

Complaint is also made of instruction 6, because by it the jury were told that Hartel had a legal right to go upon any part of the bridge in question. It is contended that instead of this instruction the court should have given appellant’s instruction No. 27, in which it is stated that the deceased, Hartel, was entitled to use the bridge in question only in a reasonable manner; and that the appellant could be held to no greater liability in this case than if it were the owner of the bridge. We are of opinion that the giving of instruction Gr was proper. It embodies the same principles of law which are announced in Commonwealth Electric Co. v. Melville, 210 Ill. 70; and in Rowe v. Taylorville Electric Co., 213 Ill. 318; and Trapp v. Rockford Electric Co., 186 Ill. App. 379; also in the former opinion of this court. And we regard instruction No. 27, which asserts that appellant could not be held to a greater liability than if it were owner of the bridge, as clearly erróneous. The evidence shows that the Hartel boy was not a trespasser, but had a right to be on the girder of the bridge in question, which was a part, of the public highway; and it was neither illegal nor wrongful for him to walk along on the top of the girder. His act, in doing so, was evidently the outgrowth of boyish enterprise and play; it was a natural and not an uncommon incident; one which might occur at any time in the usual pastimes or sports of boys of the age of the Hartel boy. The language of the Supreme Court in Rowe v. Taylorville Electric Co., supra, .is, clearly decisive of the question involved: “The streets of the city were not the private premises of defendant. The streets belong to the public, and the public, generally, have a right to use them. As a matter of fact, the defendant must be held to have anticipated that the public would use the streets as they had a right to do. * * * The defendant was' not an insurer of the safety of the public, but it was botmd to know the dangers incident to the use of the streets by it and to guard against such dangers by the exercise of care commensurate with them. * * * We explained in Commonwealth Electric Co. v. Melville, 210 Ill. 70, that in the case referred to the plaintiff received his injuries while on the roof of a building where he had no right to" be, and was neither invited nor licensed to be, and we decided that a company operating wires carrying a dangerous current of electricity owes a duty to exercise reasonable care to prevent injury to others, wherever they have a right to go. The duty extends to. every place where persons have a right to be, whether for business, convenience or pleasure.” We are also of opinion that instructions 30, 31 and 32, which call attention to certain evidence and direct the jury to disregard it, were properly refused.

Error is assigned on the refusal of the court to submit to the jury six special interrogations. Special interrogatory 1 would have required the jury to answer a question concerning the degree of care required of Hartel, from which several essential elements were omitted. Interrogatory 2 required the jury to answer as to whether the wires of the appellant were a source of danger to persons upon or passing' over Brandon bridge, and evidently had reference to persons on the floor of the bridge, which was not a matter involved in the controversy. The answer to interrogatory 3 would have been a mere matter of conjecture on the part of the jury. Special interrogatories 4, 5 and 6 refer to evidentiary facts, and not to the ultimate facts-, which the jury were called upon to pass in reaching their verdict. We are therefore of opinion that the court did not err in refusing to submit the special interrogatories to the jury.

The refusal of the court to admit in evidence the verdict of the coroner’s jury is in accordance with the rule established in Spiegel’s House Furnishing Co. v. Industrial Commission, 288 Ill. 422.

The appellant also urges as a ground for reversal of the judgment that one of the counsel for appellee was guilty of improper conduct, in that he held a conversation with a witness in the presence of the jury. The impropriety of this conversation, and what it related to, is set forth in an affidavit by Benno F. Harms. It is there stated that the counsel improperly asked the age of the witness. There may have been some impropriety in the inquiry counsel made under the circumstances presented, but it is not apparent how appellant could .have been injured by the answer of the witness as to his age, assuming that the jury heard it, which does not appear. Questions of improper conduct of counsel, however, or other matters claimed to be improper in the conduct of a trial which occur in the presence of the court, cannot be presented for review on ex parte affidavits. Whatever occurs in open court, and in its presence, and therefore within its knowledge, must be recited in the bill of exceptions and vouched for by the certificate of the judge. Tindall v. Chicago & N. W. Ry. Co., 200 Ill. App. 556; North Chicago St. Ry. Co. v. Cotton, 140 Ill. 502.

It is also claimed that the verdict and judgment for $5,000 is excessive. The ascertainment of the amount of damages in a case of this kind is usually considered as peculiarly within the sound judgment and discretion of the jury, and in their peculiar province to determine. We cannot say that under the facts and circumstances shown by the evidence that the amount appears to be excessive, and the amount found has been repeatedly upheld in similar cases. Northern Trust Co. v. Grand Trunk Western R. Co., 207 Ill. App. 11; Trapp v. Rockford Electric Co., supra.

We find no reversal error in the record. The judgment is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Niehaus

license: Public Domain

text:
    Leonora W. Bolton, Appellee, v. Standard Life Insurance Company, Appellant.
    Gen. No. 6,821.
    1. Insurance, § 147

      —when premiums must he paid. Where a life insurance policy provides that the policy is based on the payment of premiums annually, and allows 31 days’ grace for the payment of each premium after the first, during which period the policy shall remain in force, subject, however, to the deduction of the unpaid premium or unpaid instalments thereof in case the insured dies before the expiration of the grace period, such provision is to be construed as meaning that the grace period follows' after the annual or entire premium shall have become due and be unpaid and as assuming that unpaid instalments of the premium may be due without risk of forfeiture before the period of grace begins to run or ends, consequently, where the policy provides that the premium shall become due at the end of the policy year, it cannot be forfeited for failure to pay any instalment of the premium during such year until a lapse of 31 days after the expiration of the year.
    2. Insurance, § 300*—when forfeiture for nonpayment of premiums cannot he enforced. Where a life insurance policy contains no express or direct condition whereby the policy is to lapse or the insurance to be forfeited for failure to pay a fractional part of the premium or monthly instalment, no forfeiture can be enforced for such cause. -
    3. Insurance, § 300*—what is essential to warrant forfeiture. A life insurance policy cannot legally be forfeited for nonpayment of the premiums when due where no express provision is made therefor in the policy.
    4. Insurance, § 245*—what is rule of construction as to forfeitures. Forfeitures are- not favored, and will not be upheld in contracts for insurance if, by a reasonable construction, such result can be avoided.
    5. Insurance, § 120*—how contracts are construed. Where the words of a contract of insurance are susceptible of two interpretations, that interpretation which will sustain the claim must be given preference.
    6. Insurance, § 245*—how forfeiture clauses are construed, A clause in a contract óf insurance providing for a forfeiture will not be aided by judicial construction.

      7. Insijbance, § 350

      —when forfeiture for nonpayment of premiums is waived. In an action to recover on a contract of life insurance in which defendant sets up forfeiture of the policy for failure to pay .an instalment of the premium in the time required by the provisions of the policy, where plaintiff’s uncontradicted testimony shows that she was led to believe by the course of dealing of defendant’s agent for collecting premiums that it was not necessary for her to pay the instalments within the period provided for their payment, but that she could pay them after expiration of the period without incurring a forfeiture, such course of dealing on the agent’s part amounted to a waiver of any right of the insurer to forfeit the policy for failure to pay an instalment in the time specified.
    8. Insubance, § 350*—what is essential to show waiver of provision as to forfeiture for nonpayment of premiums. To- establish an insurer’s waiver of a right of forfeiture for failure of insured to pay an instalment of the premium in the time fixed by the policy, by the course of dealing of the insurer’s collecting agent, it is not necessary to show that the agent had authority to waive the provision, since the waiver resulted’ as a matter of law from the acts and course of dealing of such agent in the business of the insurer which he had in charge.
    Appeal from the Circuit Court of Will county; the Hon. Dobbance Dibell, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed October 27, 1920.
    Rehearing denied December 2, 1920.
    Donovan & Bray, for appellant; W. K. Whitfield, of counsel.
    Irving Shutts, for appellee.

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

Joseph Harrington Bolton on July 1, 1905, took out a certificate of membership for $2,000 in the Mutual Protective League, a fraternal insurance association, for the benefit of his wife; Leonora W. Bolton, the appellee. In 1915 the business of the Mutual Protective League was taken over by another company, namely, the Protective League Life Insurance Company, anti on Bolton’s application his certificate was exchanged for a policy in the latter company for $2,000 payable to the appellee, and dated April 30, 1915, which is the contract involved in this case. The name of the Protective League Life Insurance Company was after-wards changed to Standard Life Insurance Company, the appellant. Bolton died November 6, 1918, and payment of the insurance claimed under the policy was refused on the ground that the policy had lapsed prior to the death of the insured. The appellee thereupon instituted this suit in the circuit court of Will county, and a trial of the case by the court resulted in a finding in favor of the appellee and a judgment against the appellant for $1,966.98. This appeal is prosecuted from the judgment.

The controlling question presented for determination on appeal is whether the policy in question had lapsed and the insurance provided for thereby was forfeited because of a failure to pay a monthly instalment of the annual premium, which became due and payable, according to the terms of the policy, during the month of June, 1917. It is not disputed that the instalment payable during the month of June was • not paid. The evidence shows that Joseph E. Klint was appellant’s agent, who had charge of the collection of the premiums on the policy in question until January, 1917. Klint had also acted in the same capacity for the Mutual Protective League, and in January, 1917, Klint ceased to be agent for appellant and the First National Bank of Joliet was substituted. The appellee had always attended to the payment of the instalments of the premiums, and had paid them to Klint during the time of his agency, and afterwards to the bank when it became agent for appellant. It appears from the testimony of the appellee concerning her failure to pay the instalment of the premium payable during the month of June, 1917, that she was sick during all the month and failed to pay on that account, and that she had been led to believe by her dealings with Klint that she could pay the instalment after the expiration of the month without incurring any forfeiture of her rights. Her testimony in that regard is as follows: “I did not pay the June, 1917, premium during the month of June because I was sick all the month. I had the money to pay it. ’ ’ She -also testified that she had intended to pay it, and that she had before that time paid 2 months together to Klint; that she had paid four or five times in that way, and that Klint had accepted premiums from her more than 31 days after they were due, and that this had led her to believe that the payment could go over a few days as long as she was sick, and until she would be able to get down and pay on the policy the same as she had done before. She testified further: “I attempted to pay the June, 1917, premium on the 7th day of July, 1917. I attempted to pay it before I got any notice from the company. I didn’t get any word from the company. I offered to pay the July, 1917, premium with interest. I went for four months and offered to pay the bank. On July, August, September and October, 3917, I offered to pay those premiums with interest.” The bank refused to accept the June instalment which she offered to pay on July 7; also refused to accept any other payments that were offered, but informed the insured that an application for reinstatement would have to be made, which was done, but the company afterwards refused to accept the application and reinstate the insured. Appellant contends that the policy lapsed and the insurance was forfeited under certain conditions which are attached to and made a part of the policy. These conditions are as follows:

“Premium Payments.
“All premiums are payable in advance at the Home Office of the Company, or to an agent of the Company, upon delivery of a receipt signed by the President or Secretary, and countersigned by the Agent. Notice of every premium that may become due or payable hereunder is' given and accepted by the delivery and acceptance of this policy, and any further notice is expressly waived by the insured. This policy is based on the payment of premiums annually; but, premiums may be paid, subject to the company’s written approval, in semi-annual, quarterly or monthly installments at the Company’s adopted rates for fractional premiums, provided that in the event of the death of the insured any unpaid portion of the premium for the then current policy year shall be deducted from any amount payable hereunder.
“Grace.
“A grace of thirty-one days, subject to an interest charge of five per cent per annum, will be granted for the payment of every premium after the first, during which period the insurance hereunder shall continue in force. If death occur within the days of grace, the premium for the then current policy year or any unpaid installments thereof shall be deducted from any amount payable thereunder.
“The payment of any premium or installment thereof shall not maintain this policy in force beyond the date when the succeeding premium or installment thereof becomes payable except as herein expressly provided.”

It will be noticed that the conditions declare that the policy is based on payments of premiums annually, and a period of grace of 31 days is provided for, for the payment of every premium after the first, and during this period of grace the insurance shall continue in force; and if death should occur before the days of grace expire, the policy shall nevertheless be paid, notwithstanding the nonpayment of the premiums, but the premiums for the then current policy year, or any unpaid instalments thereof, shall be deducted from the amount payable under the policy. The reasonable construction of the language of these conditions is that this period of grace follows after the annual or entire premium shall have become due and payable, and unpaid, and apparently assumes that there may be unpaid instalments due without the risk of forfeiture before the period of grace begins to run or ends. In this case the entire, or annual premium, did not all become due and payable until the end of the then current policy year; and the clear inference is that the policy would not lapse until all the annual premium was due and remained unpaid and the period of grace had expired without payment having been made. There is no express or direct provision in these conditions whereby the policy is to lapse, or the insurance is to be forfeited, for failure to pay a fractional part of the premium or monthly instalment. We are of opinion that without such an express provision for lapse of the policy or forfeiture, no forfeiture could be enforced.

A policy of life insurance cannot legally be forfeited merely for nonpayment of the premium when it is due where no express provision is made therefor in the policy. 25 Cyc. 828; Keeton v. National Union (Mo.), 182 S. W. 798; McMaster v. New York Life Ins. Co., 90 Fed. 40; Ohio Farmers’ Ins. Co. v. Stowman, 16 Ind. App. 205, 44 N. E. 558; Taylor v. Providence Savings Life Assur. Society, 134 Fed. 932; Haverstick v. Penn Tp. Mut. Fire Ass’n, 156 Pa. St. 333, 27 Atl. 245. It is a well-recognized principle of law that forfeitures are not favored and will not be upheld in contracts for insurance if by a reasonable construction it can be avoided; and that when the words óf a contract are susceptible of two interpretations, that interpretation which will sustain the claim must be given preference. Globe Acc. Ins. Co. v. Gerisch, 163 Ill. 625; United States Life Ins. Co. v. Ross, 159 Ill. 476; Healey v. Mutual Acc. Ass’n, 133 Ill. 556; Bailey v. Fraternal Reserve Life Ass’n, 202 Ill. App. 430; Northwestern Life Assurance Co. v. Schulz, 94 Ill. App. 156. It is only when it is required by the strict letter of a contract of insurance that a forfeiture will be enforced. And where there is a clause providing for a forfeiture, it will not receive any aid by judicial construction. Ingersoll v. Mutual Life Ins. Co., 156 Ill. App. 568; Benes v. Bankers Life Ins. Co. of Nebraska, 204 Ill. App. 427; 25 Cyc. 821.

But there is another feature of this case which is equally decisive of this controversy. It is apparent from the uncontradicted testimony of the appellee that she was led to believe from the course of dealing of appellant’s agent, who had charge of the collection of premiums, that it was not necessary for her to pay the instalments within the period provided for their payment, but that she could pay them without incurring any forfeiture of. rights under the policy after the period had expired. This operated as a waiver of any right of forfeiture which the appellant may have had. In this respect the case comes clearly within the principle announced by this court in Nebergall v. Prudential Ins. Co. of America, 193 Ill. App. 189. But it is contended that it does not appear from the evidence that the agent in question had any authority to waive appellant’s right to forfeit the policy. It is not necessary that any such authority should be shown. The waiver in question results, as a matter of law, from the acts and course of dealing of the agent in the business of the insurer of which he is given charge. Freise v. Metropolitan Life Ins. Co., 206 Ill. App. 404. We conclude, therefore, that the appellee had the legal right to recover the amount of insurance provided for in the policy, less the amount of the unpaid instalments of the annual premium. The judgment is for this amount, and it is affirmed.

Judgment affirmed.

Dibell, P. J., took no part.


author: Mr. Presiding Justice Matchett

text:
    Anne O. Thompson et al., Heirs at Law of John Thompson, Deceased, Appellants, v. Western Casket Company, Appellee.
    Gen. No. 24,824.
    1. Landlord and tenant, § 19

      —when lease not establishes. In an action for rent against the Western Casket Company by the heirs of T who leased the premises to the casket company and worked for it, when it was set up as a defense that'a new company was formed called the Western Casket and Undertaking Company and* that, by mutual consent, the original lease was canceled and an oral lease made to the undertaking company, the fact that the widow of T, in answer to a question “Who occupied the premises” replied “My husband; he took care of it; he worked for the Western; they rented the store, you know,” falls short of proving the new lease and is as consistent with the theory that the casket company rented the store as- that the undertaking company rented it.
    2. Evidence, § 164*—when letter self-serving. • In an action by the heirs of a- lessor for rent, a statement in a letter written by the defendant to such heirs that it was understood defendant would be expected to lease the premises only so long as decedent continued to be its manager, was a self-serving declaration, not binding on plaintiffs.
    3. Landlord and tenant, § 319

      —when prima facie case established in action for rent. In an action by the heirs of a lessor for rent under a written lease, the lease made a prima facie case for plaintiffs and the burden was upon defendant to show the only matter of defense, that the lessor agreed to and did cancel the lease and let the premises to another company.
    4. Landlord and tenant, § 449*—what considered on claim that lease was canceled. In an action upon a lease by the heirs of the lessor, in which defendant contended that the lease had been canceled by mutual consent before the death of the lessor, the fact that the lease was in the possession of plaintiffs, neither having been delivered up nor physically changed, was significant.
    5. Landlord and tenant, § 452*—right to surrender verbally under sealed lease. In this State a written lease, although under seal, may be surrendered by verbal agreement of the parties.
    6. Landlord and tenant, § 454*—inference of agreement to surrender lease. The rule that an agreement to surrender a written lease may be inferred from the conduct of the parties is based upon the principles of estoppel, and the conduct proved must be such as is inconsistent with the relation of landlord and tenant.
    7. Landlord and tenant, § 449*—surrender by lessee who never had possession. A lessee who never had possession under the lease could not make a technical surrender of the estate conveyed. ”
    8. Landlord and tenant, § 310*—when lessor not estopped to recover rent. In an action for rent by the heirs of the lessor, evidence held not to establish an estoppel of the lessor or his heirs.
    9. Landlord and tenant, § 449*—what does not show surrender of lease. In an action for rent against a casket company in which it was contended that the written lease was canceled by mutual consent and an oral lease made to an undertaking company, the fact that all the parties knew that the casket company never went into possession and that the rent, when paid, was paid by the undertaking company, was as consistent with the theory that the undertaking company was an assignee of the lease or a sub-lessee thereunder as with the theory that a new lease was entered into and the old one surrendered.
    10. Landlord and tenant, § 402*—when provision against subleasing not inconsistent with theory of sublease. The fact that a lease contained a provision against subletting without the consent of the lessor is not' inconsistent with the view that a sublease was made, as such provision was for the benefit of the lessor exclusively.

      11. Landlord and tenant, § 449

      —when evidence insufficient to show cancellation of lease. Evidence held insufficient to establish a mutual agreement for the cancellation of a lease and for a re-letting to another lessee.
    12. Landlord and tenant, § 418*—effect of assignment of lease on relations of lessor and lessee. A lessor and lessee are in privity of estate and privity of contract and an assignment of the lease will destroy the privity of estate but not the privity of contract and the lessee will still be liable on its written covenant to pay rent.
    13. Landlord and tenant, § 453*—when acceptance of rent from third person not a waiver of rights. .In an action by the heirs of a- lessor against the lessee for unpaid rent under a written lease, held that plaintiffs were entitled to a holding as a proposition of law. that, by a third party taking possession of the premises and paying rent to the lessor they waived none of their rights under the lease, in the absence of proof of any agreement as to the cancellation or surrender by the lessee of the lease in question.
    Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed and remanded’ with finding of facts and judgment entered here.
    Opinion filed March 9, 1920.

      Certiorari denied by Supreme Court (making opinion final).
    Henry H. Ekland and E. G-. Lancaster, for appellants.
    William G-. Wise and Worth E. Caylor, for appellee.

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

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

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

   Mr. Presiding Justice Matchett

delivered the opinion of the court.

The appellants are heirs at law of John Thompson. They brought suit' against defendant, appellee, in the municipal court of Chicago on a written lease which contained a power to confess judgment for rent which might become due to the lessor or his assignees by the terms of the lease. Under this power judgment was confessed November Í6, 1916, for $1,208.60, together! with attorney’s fees.

The narr. set up the making of the lease from John Thompson to defendant for a term beginning on the 1st day of February, 1910, and ending on the 31st day of January, 1915, at a rental of $50 per month, payable on the first dáy of each month in advance. It also alleged that 21 months ’ rent was due and payable, but still in arrears and unpaid. The defendant afterwards filed an affidavit of merits, and the judgment was opened up. This affidavit set up by way of defense that defendant had not occupied the premises during the time for which rent was claimed, and that, after the execution of the lease, the lessor had entered into an agreement with the Western Casket and Undertaking Company, another corporation, whereby Thompson, the lessor, was employed <to conduct an undertaking business upon the leased premises “and for a mutual consideration then and there received, the said defendant and the said John Thompson agreed to and did cancel the said written lease, and thereupon the said Thompson let and rented said premises to the Western Casket and Undertaking Company, at a rental of $50 per month, so long as he should remain in the employ of the Western Casket and Undertaking Company * * >_

The affidavit further alleges that Thompson entered upon the performance of this agreement and continued to perform it until his death. Upon trial by the court, finding and judgment for defendant were entered.

Upon an appeal to this court the judgment of the trial court was reversed with a finding of fact and judgment here for plaintiffs. Upon a petition for rehearing by appellees, such rehearing was granted.

The material facts are not disputed. The written lease is in evidence. It was executed January 8, 1910. It was signed by the defendant Western Casket Company by its president, D. S. Sattler and attested by its secretary. It is under seal. It provided, among other things, that the lessor would not allow the premises to be occupied in whole or in part by other persons, and would not sublet or assign the lease without the written consent of the lessor. It also appears that some time in February, 1910, the Western Casket and Undertaking Company was organized," and that the same Battler, who was the president of the defendant Casket Company, became and afterwards was the president of the Undertaking Company; that Thompson, the lessor, at the time he entered into this lease and prior thereto, conducted an undertaking establishment upon the demised premises; that some time after the execution and delivery of the lease he became an employee of the Undertaking Company, and acted as its manager in conducting a similar business on the demised premises;. that he received from the Undertaking Company as compensation for his services a salary of $150 per month; that he made daily and weekly reports of the business managud by him to the main office of the Undertaking Company.

It also appears that defendant Casket Company never went into possession of the premises, and that, from the beginning of the term of the lease up to the time of Thompson’s death,.the Undertaking Company was at all times in the exclusive possession of the demised premises; that the rent therefor, in the sum' of $50 per month, was paid to Thompson by the checks of the Undertaking Company up to the time of his death; that he personally indorsed and cashed the checks therefor; that Thompson died December 13, 1912, and that for several months thereafter the Undertaking Company continued to pay the same rent for the premises; but on April 19, 1913, the Undertaking Company, by Battler, wrote a letter to one of Thompson’s heirs plaintiff, inclosing a check for the current month’s rent and stating:

“As yet there is no indication of our being able to rent your store, on account of the peculiar conditions existing, therefore, it seems impossible to find a tenant, and it would seem an injustice to us that we should be expected to pay rent for this place. We find that it was understood that we would only be expected to lease these premises so long as your father, John Thompson, continued to be manager of that branch of our business, and from this standpoint we feel that his death annulled the lease. After careful consideration of the proposition in all its phases, we feel that we should be released of this obligation.' In fact, we have decided that we can pay this rent no longer. We, therefore, wish to notify you that we do not wish to be held responsible for the rent of the store, and as it appears to us now, we will decline" to pay any further rent. * * * ”

In its petition for a rehearing appellee insists there are other facts overlooked by this court in its former opinion, tending to show a new lease from Thompson to the Undertaking Company. It says the widow, Anne O. Thompson, testified to that effect, that the letter from Sattler above quoted indicates it, and that it may be inferred from the fact that for more than 3 years this rent was not demanded from the Casket Company. The testimony of Mrs. Thompson referred to was in response to a question by the court as to “Who occupied the premises?” She replied, “My husband; he took care of it; he worked for the Western; they rented the store, you know.” This answer comes short of establishing the fact for which appellee contends, and is just as consistent with the theory that the Casket Company rented the store as that the Undertaking Company rented it.

The statement referred to in Sattler’s letter is a self-serving one, clearly not binding on the plaintiffs in this case, and the assertion of appellee that the evidence shows no demand was made for the rent is not sustained by any reference to the abstract or the record.

We think it must be conceded that the lease made a prima facie case for the plaintiffs and that the burden was on the defendant to show the truth of the only matter relied on by way of defense, which was that for a mutual consideration the lessor Thompson agreed to and did cancel the written lease, and let and rent the premises to the Western Casket and Undertaking Company. There is no evidence that the lease was canceled by any express agreement either oral or written. The lease was in the possession of plaintiffs and was put in evidence by them at the trial. It is apparently in the same physical condition as at the time it was executed and delivered. It is significant that it was neither delivered up ñor physically changed at any time.

In this State a written lease, although under seal, may be surrendered by verbal agreement of the parties to it. Baker v. Pratt, 15 Ill. 568. It is also true that an agreement of this nature may be inferred from the conduct of the parties to the lease. Fry v. Patridge, 73 Ill. 51; Williams v. Vanderbilt, 145 Ill. 246; Dills v. Stobie, 81 Ill. 202. But this rule is based upon the principles of estoppel and the conduct proved must be such as is inconsistent with the continuance, of the relation of landlord and tenant. Grommes v. St. Paul Trust Co., 147 Ill. 634; Johnson v. Northern Trust Co., 265 Ill. 270; Beall v. White, 94 U. S. 382; Rees v. Lowy, 57 Minn. 381.

The affidavit of merits alleges that the agreement which it is claimed amounted to a surrender of the lease and the estate conveyed by it was made February 1,1911, but the defendant says this was a clerical error and argues that all the evidence indicates that the transaction took place in February, 1910, shortly after the lease was executed and delivered. The testimony for the defendant is positive that it never went into possession of the premises. If this be true, it could not make a technical surrender of the estate conveyed, because the defendant could not yield up to the lessor an estate, which, as lessee, it did not yet possess. If the defendant had actually taken possession under the lease, a change of the possession would have been a material fact tending to show a change in the relationship of the parties. Aside from all technical considerations, we do not think this record contains evidence from which any agreement' to surrender the lease or the estate or any intention that the relation of landlord and tenant between the lessor and the lessee should cease to exist can be inferred. We think the proof fails to establish estoppel of the lessor or his heirs.

The only facts tending to show such agreement, express or implied, or such estoppel are that all the parties knew the Casket Company did not go into possession; all the parties knew that-the Undertaking Company did go into possession and that the rent when paid was paid by the Undertaking Company. These facts are just as consistent with the theory that the Undertaking Company was an assignee of the original lease, or that it was a sublessee thereunder, as it is with the theory that a new lease was entered into and the old one surrendered by agreement of the parties interested.

But it is said that a provision in the lease to the effect that the lessee might not assign or sublet without the consent of the lessor is inconsistent with this view. We do not think so. Those provisions were for the benefit of the lessor exclusively. Sexton v. Chicago Storage Co., 129 Ill. 318; Smith v. Goodman, 149 Ill. 75. The defendant relies upon a statement of the law in Taylor on Landlord and Tenant, vol. 2, sec. 515, as follows:

“An actual and continued change of possession by the mutual consent of the parties will, as we have said, amount to a surrender by operation of law, and that, whether the possession is delivered to the landlord himself or to another in his behalf. It may also be implied from circumstances and the acts of the parties.”

We do not think that statement of the law applicable to this case because there is here no change of possession. In the note to the same section, however, it is stated:

" ' rpkg -ryjg 0f law as now settled by the recently adjudicated cases is, that any acts which are equivalent to an agreement on the part of the tenant to abandon, and on the part of the landlord to resume possession of the demised premises, amount to a surrender by operation of law.’ Citing Talbot v. Whipple, 14 Allen (Mass.) 177. But whether a surrender is effected by a change of possession, the consent of all parties to the change of tenancy seems to be necessary. ’ ’

But there is not a scintilla of evidence showing what the agreement between the three parties was, nor indeed that the three made any agreement. The parties may have agreed; they may not; either theory is consistent with the evidence. It fails to establish that “it was mutually agreed.’’

The defendant was in privity with the lessor in two ways, first, by privity of estate, and secondly, by privity of contract. The assignment of the lease and the transfer of possession to a third party would destroy privity of estate, but it would not destroy privity of contract, and the defendant would still be liable on its written covenant to pay rent. Barnes v. Northern Trust Co., 169 Ill. 112. In that case the court said:

“Appellant complains of two instructions given for the plaintiff. These instructions announced in general terms the doctrine that although a landlord may have given his consent to an assignment by a le'ssee and accepted the assignee as his tenant and received rent from him, yet the lessee is not released from his express covenant to pay rent, unless the landlord has accepted the surrender of the lessee and released him.Such is the law as laid down by this court and by other authorities. (Grommes v. St. Paul Trust Co., 147 Ill. 634; 12 American and English Encyclopedia of Law, p. 1032).
“It is contended by the appellant that because Henry Shuttler and the appellee received rent from the American Book Company after A. S. Barnes & Company turned their business and the premises over to the American Book Company, they thereby released A. S. Barnes & Company from their obligation to pay any more rent. But unless there was a substitution of the American Book Company in place of A. S. Barnes & Company, the original lessees^ and unless there was a clear intention to make a new contract with the American Book Company and to discharge A. S. Barnes & Company from further liability under the lease, and unless there was an intent to accept a surrender of the lease from A. S. Barnes & Company, A. S. Barnes & Company were not relieved from their liability under the lease.”

Appellee refers us to Beidler v. Fish, 14 Ill. App. 29, and Duncan v. Moloney, 115 Ill. App. 522. We find nothing in these cases inconsistent with the views we have expressed.

The plaintiffs asked the court to hold as a proposition of law:

“That by the Western Casket and Undertaking Company taking possession of the premises in question, and the payment of rent by the said 'Western Casket and Undertaking Company to the lessor, the plaintiffs, in the absence of proof of any agreement as to the cancellation or surrender by the lessee of the lease in question, are held not to have waived any of their rights under said lease.”

The court refused to so hold and in this, we think, erred. The plaintiffs were entitled to a finding and judgment in their favor for the amount of the unpaid rent, together with interest, and the judgment of the trial court will, therefore, be reversed with a finding of fact and judgment entered here.

Reversed with finding of facts and judgment entered here.

Barnes and Gridley, JJ., concur.

Finding of facts. We find that there never was any agreement, express or implied, between appellee, Western Casket Company, and appellants or John Thompson, deceased, whereby appellee was in any way released from its obligation to pay rent according to the covenant of the lease sued on. That appellee, Western Casket Company, is liable for the rent due and unpaid, under the terms of said written lease, with interest thereon at five per cent per annum, from the termination of the lease, January 31, 1915, and we find that said amount due and unpaid is $1,318,33.


author: Mr. Presiding Justice Taylor

text:
    Abraham Levy, Plaintiff in Error, v. Marie Kuss, Administratrix of Estate of John O. Kuss, Deceased, and Woodlawn Trust and Savings Bank, Defendants in Error.
    Gen. No. 24,967.
    1. Executors and administrators, § 326

      —when claim is to he paid as of sixth class. Where an intestate contractor had received a cashier’s check from complainant for the sole purpose of paying subcontractors, but never paid them and deposited the money to his account, the proceeds of the check are a claim against the deceased’s general estate and will be paid out only as a claim of the sixth class, under the Administration Act, sec, 70, ch. 3 (J. & A. If 119), providing for a division of demands against an estate into classes and will he paid out posterior to the first five claims provided for in the statute.
    2. Executors and administrators, § 274*—what relief will he afforded on claim against estate. Whatever procedure a cestui que trust or a creditor adopts to recover a claim against a deceased’s, estate, whether that of a court óf equity or the probate court, the nature and quantity of the relief will be the same.
    3. Executors and administrators, § 322*—what is effect of statute as to classification of claims. The Administration Act, sec. 70 (J. & A. 1f 119), providing that “all demands against the estate of any testator or intestate shall be divided into classes,” constitutes a change in the substantive law and is therefore as much the law in an equity proceeding as in a proceeding in the probate court.
    4. Executors and administrators, § 326*—when claim is of

      sixth class. Money in trust which a deceased has received is obtainable from his estate only after provision has been made for the payment of claims which fall within the first five classes of section 70 of the Administration Act (J. & A. 119).
    Error to the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Affirmed.
    Opinion filed October 6, 1920.
    Gr. A. Bttresh, for plaintiff in error.
    No appearance for defendants in error.

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

   Mr. Presiding Justice Taylor

delivered' the opinion of the court.

This cause was tried before the chancellor upon an agreed statement of facts, which contains substantially the following:

In April, 1913, John O. Kuss (now deceased) entered into a verbal (sic) contract with the complainant, by which it was agreed that Kuss was to build an addition to a store building belonging to the complainant and was to furnish and pay for the erection of said addition and pay for the material and labor and to be paid therefor by the complainant the sum of $1,600.

Kuss went to work, made agreements and contracts with divers subcontractors and laborers for the material and labor necessary to build an addition and perform the contract and pursuant to the various agreements which Kuss made with the subcontractors, materialmen and laborers, the following contractors, materialmen and laborers, among others, delivered bricklaying and plastering material and rendered services to the building prior to May 5,1913, for which no payment has been made:

Farr Brothers $335.55
J. B. Boulton............................ 424.45
F. M. Aldridge ............ 65.85
Standard Material Company.............. 46.15
$872.00

On May 5, 1913, Kuss asked the complainant for $1,000 “for the specific purpose and sole use of paying off the said bricklayers and plasterers for the material and labor furnished by them as per their said contracts” with the said Kuss, and the latter thereupon wrote and delivered to the complainant on May' 5, 1913, a certain writing substantially as follows: “Could you please let me have a $1,000 on the building, as I want to pay off the bricklayers and plasterers.' You can either give him a check or come yourself, as I am not able to be up, and charge the amount to my contract price.”

On May 6, 1913, Levy received a cashier’s check for $1,000 and on the same day delivered it to Kuss. The cashier’s check recited, among other things, as follows: “Pay to the order of John O. Kuss (for payment on building at 9239 Cottage Grove Ave.), $1,000.” Kuss . indorsed the check and had it deposited to his own account at the Woodlawn Trust and Savings Bank. On May 6, 1913, just prior to the deposit of the cashier’s check, Kuss had to his credit in the Woodlawn Trust and Savings Bank, $321.66, and after the deposit the sum of $1,321.66. On May 15, 1913, Kuss died and at the time of his death had to his credit in the Wood-lawn Trust and Savings Bank the sum of $1,076.56. He had made no deposit subsequent to that of $1,000 but he had drawn out $255.10, leaving $1066.56.

Prior to his death Kuss did not use any part 'of the proceeds of the cashier’s check of $1,000 in payment of material or work furnished to the building of the complainant, although at the time of bis death there was due $872. Subsequent to the death of Kuss the bricklayers and plasterers together with all the other subcontractors refused to complete their subcontracts until they were paid and threatened to file lien claims and foreclose them. Several of them did file lien claims against the building and lot and the remainder refused to waive or release their claims. The complainant on account of the threats of the said contractors to file lien claims and in order to protect his property from foreclosure was compelled to and did pay to Farr Brothers $335.55 and to the Standard Material Company $46.15, being a total of $381.70; there then remained due and unpaid to the bricklayers and plasterers amounts as follows: To Boulton $424.45 and Aldridge $65.85, being a total of $490.30 for material and labor furnished on the building. To other subcontractors the complainant has paid for material and labor the sum of $616.35. On May 21, 1913, Marie Kuss, the widow of the said John O. Kuss, deceased, was appointed by the probate court of Cook county as administratrix of the estate of said Kuss, deceased. The estate of Kuss is insolvent and its assets insufficient to pay the court costs, expenses of administration, and the widow’s award.

The administratrix claims that the $1,000, the proceeds of the cashier’s check now on deposit in the Woodlawn Trust and Savings Bank, is part of the as-' sets of the estate of Kuss, deceased.

The agreed statement of fact further recites that • the cashier’s check for $1,000 delivered by the complainant to Kuss on May 6, 1913, “was for the sole and specific purpose of having the proceeds thereof used for paying the bricklayers and plasterers the money due them for material delivered and work and labor performed upon the said building of the complainant which at that time amounted to $872”; that complainant paid a total of $381.70 to protect his property from lien claims and foreclosure and that the sum of $493.30 is still due and owing to Boulton and Aldridge, bricklayers and plasterers, who are now asking to collect that amount from the complainant.

The chancellor after considering the pleading's and the statement of facts decreed that the complainant be subrogated to all the rights and remedies of the subcontractors in and to the trust fund deposited in the Woodlawn Trust and Savings Bank to the extent of $872, and that Marie Kuss, the administratrix, pay to the complainant that sum, as a claim of the sixth class against the estate of John O. Kuss, deceased, in the probate court of Cook county. From that decree the complainant has prosecuted a writ of error.

No brief has been filed by the defendant. It is claimed by the complainant (1) that the payment should have been directed out of the fund in the bank and not as a claim against the estate, and (2) that interest should have been allowed.

(1) Did the chancellor err in remitting the complainant to the probate court, giving him only a remedy against the general estate of the deceased? In other words, having found that the sum of $872 which came to Kuss on May 5, 1913, was “for the specific purpose and sole use of paying off the said bricklayers and plasterers” and that “the deposit of Kuss in the Woodlawn Trust & Savings Bank, was and is a trust fund” in its hands “for the payment of said bricklayers and plasterers,” and the complainant having filed his bill of complaint praying that the alleged trust fund be turned over to him, did the chancellor err in refusing the complainant the relief for which he prayed and relegating him to a claim of the sixth class in the probate court? At first blush, the claim of the complainant as stated in Gillett v. Hickling, 16 Ill. App. 392, that “the bill does not ask to enforce a claim against said estate and is not within the rules applicable to the presentation and allowance of claims against the estates of deceased persons in the probate court,” seems quite plausible. But, section 70, chapter 3 of the Administration Act (J. & A. 119), provides that, “All demands against the estate of any testator or intestate shall he divided into classes,” etc., and that “where the deceased has received money in trust for any purpose, his executor or administrator shall pay out of his estate the amount thus received and not accounted for” as a claim of the sixth class, and it is our opinion that the words, “where the deceased has received money in trust for any purpose,” apply to the proceeds of the draft which were credited to Kuss, the deceased, and mean that all such money when paid out, whether in answer to a bill in equity or a claim in the probate court, shall be paid out only as a claim of the sixth class, that is, shall be paid out posterior to the first five claims provided for in section 70.

. The act in regard to the administration of estates, which went into force July 1, 1872, in so far as, in section 70, it is provided that “all demands against the estate of any testator or intestate shall be divided into classes,” etc., constitutes a change in the substantive law and is, therefore, as much the law in proceeding in equity as in a proceeding in the probate court. Whatever procedure a cestui que trust or a creditor adopts, whether that of a court of equity or the probate court, can make no difference as to the nature and quantity of the relief which he may obtain. Money in trust which the deceased has received is obtainable from his estate only after provision has been made for the payment of claims which fall within the first five classes of section 70 of the Administration Act. Were it not so there would be one law in a court of equity and another law in the probate court.

Finding no error in the record the judgment of the superior court is affirmed.

Affirmed.

O’Connor and Thomson, JJ., concur.


text:
    Mary Jane Shaffer, Appellee, v. Ralph Austin Shaffer, Appellant.
    Gen. No. 25,270.
    Divorce, § 80

      —when wife is not entitled to solicitor’s fees and costs. Where a wife’s bill for divorce has been dismissed for want of equity, she is not entitled to an order that, pending the appeal from the decree against her, her husband shall- pay alimony, solicitor’s fees and the various costs of the suit on appeal, under Rev. St. ch. 40, sec. 15 (J. & A. If 4230), which provides for the payment of such allowances to her when the defeated hiisband prosecutes -the appeal.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthikl, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed.
    Opinion filed October 6, 1920.
    Culver, Andrews, King & Stitt, for appellant.
    Frederick A. Bangs, for appellee; Richard H. Colby, of counsel.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

On October 2, 1917, the complainant, Mary Jane Shaffer, filed a bill of complaint asking a' divorce from her husband, Ralph Austin Shaffer. The bill charged that they were married on October 25, 1902, in the State of Texas; that she had lived and cohabited with the said defendant as his wife until October 2, 1917, when he deserted her and their two children. The bill of complaint further charged the defendant with habitual drunkenness and with adultery. It also sets up that the defendant is a sales manager and receives a salary of from $500 to $600 per month. The prayer of the bill asks for divorce and that she be awarded the children, and for maintenance and solicitor’s fees.

To the bill of complaint the defendant filed an answer, in which he admits that he was married to the plaintiff, bnt denies that he deserted her and their children or that he has been guilty of habitual drunkenness or adultery.

On March 4, 1918, a replication was duly filed and on March 11,1919, the complainant filed with the clerk of the court a notice to the effect that at the opening of court a certain petition attached to the notice would be presented to the chancellor.

That petition recites, among other things, that there had been a trial and finding of the court in favor of the defendant; that the petitioner believed and was informed that the evidence offered on the trial entitled her to a decree of divorce and that she would be able to substantiate her claim before the Appellate Court; that she has prayed for and been granted an appeal.

By her petition also she alleges that she is destitute; that the defendant is the owner of ample property to justify his advancing what may be.necessary for her and her children’s support and for solicitor’s fees, costs and expenses. The petition prays that he be required to pay her a reasonable sum for her support and maintenance during the pendency of the suit, and such sums as may be necessary to enable her to prosecute her appeal, to pay solicitor’s fees and defray the other necessary costs and expenses.

On March 15, 1919, a decree was entered which set forth that, after hearing the evidence and finding that the defendant had not been guilty of either habitual drunkenness or adultery and that the equities were with him, the bill of complaint should be dismissed for want of equity.

On the same day, the appeal bond of the complainant was approved and an order was entered directing that the defendant within 60 days from the entry- of the order should pay to the complainant for her solicitor’s fees upon said appeal the sum of $100; for transcript of the evidence taken upon the trial $120; for transcript of the record to be used upon appeal $20; for complainant’s appearance fee in the Appellate Court $10; for the printing of the abstracts in the Appellate Court $120; for the printing bf complainant’s briefs $40; and that the defendant pay to the ' complainant every month the sum of $180 as alimony pending said appeal commencing April 1, 1919.

The order of March 15,1919, was based in part upon the affidavits of the complainant and her attorney, in which affidavits there are set forth the various amounts which it is claimed it will cost to consummate the complainant’s appeal.

The appeal of the defendant is from the order of March 15, 1919, by which there was allowed alimony, solicitor’s fees and the costs necessary to the perfection of the appeal in the Appellate Court.

The question arises whether, where a wife files a bill for divorce and charges her husband with desertion and adultery and there is a trial, and the chancellor orders the bill dismissed for want of equity, she is entitled to an ..order that, pending the appeal from the decree against her, her husband shall pay to her alimony, solicitor’s fees and the various costs of the suit upon appeal.

Section 15, chapter 40 of the statutes of the State of Illinois, J. &■ A. j[ 4230, provides as follows: “In all cases of divorce the court may require the husband to pay to the wife, or pay into court for her use during the pendency of the suit, such sum or sums of money as may enable her to maintain or defend the suit; and in every suit for a divorce, the wife, when it is just and equitable,, shall be entitled to alimony during the. pendency of the suit. And in case of appeal or writ of error by the husband, the court in which the decree or order is rendered, may grant and enforce the payment of such money for her defense, and such equitable alimony during the pendency of the appeal or writ of error, as to such court shall seem reasonable and proper.” In Seeger v. Seeger, 154 Ill. App. 38, in which the husband filed a hill and obtained a decree of divorce on the ground of adultery, the court said: ‘‘ After the divorce had been granted, she asked for solicitor’s fees and money with which to prosecute an appeal. This the court denied, and it is argued that it should have been granted. Where a divorce case is decided in favor of the wife and the husband takes an appeal, it is highly proper that the wife should be granted the means wherewith to defend a decree, at least unless she has such means of her own. But where the wife is defeated, we do not recognize the duty of the court to award her further suit money.” Although that language, taken by itself, seems decisive of the instant case, it must be borne in mind that the court in that case rested the decision in part, at least, upon the fact that “the wife had property of her own, and the parties had an antenuptial contract.” The only other pertinent case is Balswic v. Balswic, 179 Ill. App. 118, and that is based upon the Seeger case, supra. In the Balstvic case, where a husband sued his wife for a divorce, charging adultery, and obtained a decree in his favor, and an appeal was taken by the wife, the court said, referring to section 15, chapter 40, supra: “That section of the statute provides that where a husband takes an appeal he can be compelled to pay for the wife’s defense of appeal, but does not provide for any payment for the wife to prosecute an appeal taken by her.”

Counsel for the complainant calls our attention to decisions of the courts of the States of New York, Wyoming, Missouri, Michigan and Pennsylvania, which pertain to the interpretation of the statutes of those States on appeals similar to that in the instant case. Although there is considerable likeness between the various statutes of those States and ours, there is by no means an entire similarity. Inasmuch as in section 15, chapter 40, supra, it is provided affirmatively that in case of appeal or writ of error by the husband, the court may grant and enforce payment of suit money for her defense during the pendency of the appeal or writ of error, it would seem to follow that the legislature did not overlook the case where the wife failed in the lower court, but intended definitely to exclude any right on the part of the wife to a decree for solicitor’s fees, alimony and suit money where she has been defeated in the trial court and the suit was still pending in a court of review. The first part of section 15 which uses the phrase, “during the pendency of the suit,” would undoubtedly by itself—as a suit is just as much pending when in a court of review as in a trial court—justify the allowance; but we are unable to escape the conclusion that the section, taken as a whole, means that such moneys are not allowed when the appeal is taken by the wife. It is true that the chancellor in the exercise of his discretion undertook to order the husband to make appropriate payments pending the appeal, and that, we assume, was the result of his judgment that, as a matter of justice, the litigation ought to be passed upon by a court of review, but, however, as the whole matter is based upon the meaning and intention of the statute, and we are of the opinion that the statute does not justify the order, what the chancellor thought of the merits of the controversy and the justification of the appeal becomes immaterial.

The order of March 15, 1919, which provides for the payment of alimony, solicitor’s fees and suit money pending the complainant’s appeal, is set aside and the decree to that extent reversed.

Reversed.

O’Connob and Thomson, JJ., concur.


text:
    The People of the State of Illinois ex rel. Rudolph Oelsner, Defendant in Error, v. Charles S. Andrus et al., Plaintiffs in Error.
    Gen. No. 25,290.
    1. Master and servant, § 98a

      —what is necessary for review of decision of commission. Under Workmen’s Compensation Act, paragraph (b), sec. 19 [Callaghan’s 1920 Stat. 1Í 5475(19)], providing that upon petition for review of the decisions of an arbiter an authenticated stenographic report of the proceedings must be filed within 20 days after service of notice of the decision of the arbiter, all that is required is that any time before the hearing such report be filed, and the date fixed by the statute as to the filing of such report is directory—not mandatory—and is not jurisdictional.
    2. Mandamus, § 89*—when mandamus will lie to compel review of decision of Industrial Commission. Mandamus will lie to compel the Industrial Commission to take jurisdiction of a petition for review of the decision of an arbiter, where the petition and agreed statement of facts or stenographic report are filed.
    3. Mandamus, § 16*—when quasi-judidal tribunals will be compelled to act. Mandamus will lie to compel a subordinate or quasi-judicial tribunal to act, where it is its duty to act.
    4. Master and servant, § 98a*—how Industrial Commission may be compelled to act. Where the Industrial Commission has refused to take jurisdiction, when under the law it was its duty to assume jurisdiction, mandamus is an appropriate remedy.
    5. Master and servant, § 98a*—when existence of other remedy does not prevent relief by mandamus. Even though the decisions of the Industrial Commission may generally be reviewed by the statutory writ of certiorari, that does not in a proper case exclude the remedy by mandamus.
    Error to the Superior Court of Cook county; the Hon. M. L. MoKinleiy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Affirmed.
    Opinion filed October 6, 1920.
    Edward J. Brundage, for plaintiffs in error; George A. Sohnbider, of counsel.
    Moses, Rosenthal & Kennedy, for defendant in error; Walter Bachrach, of counsel.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

The record in this cause presents two questions of law: First, has the superior court of Cook county jurisdiction of a petition for a writ of mandamus which requests that court to command the Industrial Commission of the State of Illinois to review a proceeding where the commission has held that—as no statement of facts or stenographic report was filed within 20 days, as provided in paragraph (b) of section 19 of the Workmen’s Compensation Act [Callaghan’s 1920 Stat. [¶] 5475(19) ]—it has no jurisdiction? Second, a question upon the interpretation of a statute—is paragraph (b), supra—complied with where a petition to review the decision of an arbitrator has been filed with the commission in apt time, but the authenticated stenographic report, though filed before a hearing’upon the petition, was not filed until more than 20 days after service of notice of the decision of the arbitrator?

The matters involved arise by reason of the overruling of a demurrer to a. petition for a writ of mandamus filed by the relator, Rudolph Oelsner. The respondents (plaintiffs in error) are the members of the Industrial Commission of Illinois.

The petition for the writ of mandamus alleges, inter alia, the following: That one Lange made an application for adjustment of claim for recovery of compensation for injury 'sustained by reason of an accident arising out of and in the course of the employment; that a hearing was had before an arbitrator; that the arbitrator filed his decision upon the application.

That the decision found that Lange, the employee, and the employer (the relator) were opérating under the Workmen’s Compensation Act; that Lange sustained accidental injuries arising out of and in the course of the employment, and allowed compensation; that Lange left him surviving his widow and certain children.

That compensation has been paid amounting to $608.35; that on February 7, 1919, notice of the decision of the arbitrator, dated January 21, 1919, was served on the attorneys for the employer (the relator) ; that on the 12th day of February, 1919, the employer (the relator) filed his petition for review of the decision of the arbitrator. '

That in. the petition for review it was stated that the employer intended to introduce additional evidence before the Commission; that on March 4, 1919, a stenographic report of the proceedings at the hearing before the arbitrator was filed after having been duly authenticated by the attorneys.

That on March 11, 1919, notice was served that the hearing upon the petition of the review was set for March 24, 1919, and that on that date it was continued to March 27, 19)9, on which day it came on for hearing, and that attorneys representing the employer and the employee were present, and that the attorney for the employer represented that he wanted to submit additional evidence on behalf of the employer (the relator).

That James A. Culp, one of the members of the Industrial Commission, stated that the stenographic report of the proceedings was filed 25 days after notice of the decision, and, as it had been filed 5 days late, the Industrial Commission was without jurisdiction to hear the petition for review; that the attorney for the employer desired then and there to offer additional evidence, and that said Culp, one of the commissioners, stated that the Commission was without jurisdiction and that he would not hear any argument or permit any offer of evidence to be made.

That on March 31, the attorney for the employer made a demand to submit the controversy to not less than a majority of the members of the Industrial Commission and to submit such additional evidence. That the attorney for the employer offered to show that the employee executed a receipt in full settlement of compensation under the provisions of the Compensation Act, and that such receipt was filed with the Industrial Board.

That on April 9, 1919, the employer (the relator) by his attorney appeared before the Industrial Commission for the purpose of making an argument on the question of jurisdiction of the Industrial Commission, and the attorney for the employee appeared and moved the Industrial Commission to dismiss the petition for review for want of. jurisdiction; that on April 10, 1919, the members of the Industrial Commission ordered the petition to review the decision of the arbitrator to be dismissed, and that the award of the arbitrator stand as and for the decision of the Industrial Commission.

That this was done on the ground that the stenographic report in said cause was not filed within 20 days from the date of the service of notice of the decision of the attorneys for the employer; that the action of the members of the Industrial Commission in refusing to permit the employer to submit additional evidence and to make the argument to not less than a majority of the members of theTndustrial Commission was arbitrary, and that in refusing to review the decision of the arbitrator, the action is contrary to paragraph (e) of section 10 of the Workmen’s Compensation Act [Callaghan’s 1916 Stat. fl 5475(10)].

The petition for the writ of mandamus prayed that a writ be issued commanding the respondents to reinstate and hear the petition of the relator for a review of the decision of the arbitrator.

The respondents demurred to' the petition. Their demurrer was overruled, and a writ of mandamus ■ordered issued. The matter now comes before us upon a writ of error, sued out by the respondents, and challenging the judgment of the trial judge.

Two questions are involved: (1) Did the commission have jurisdiction, and (2) assuming it had jurisdiction, will mandamus lie?

(1) As to jurisdiction: It is contended by the respondents that they are not, under the law, entitled to take jurisdiction of a petition to review the decision of an arbitrator where, a properly authenticated stenographic report is not filed within 20 days after notice of the decision of the arbitrator has been served though such a report is filed before the hearing upon the petition. And they state in their brief that the Supreme Court has not decided whether the filing of such a document within 20 days is jurisdictional. The language of the statute [Callaghan’s 1920 Stat. j[ 5475(19) (b)] that is involved is as follows:

“The decision of the arbitrator or committee of arbitration shall be filed with the Industrial Board, which board shall immediately send to each party or his attorney a copy of such decision, together with a notification of the time when it was filed, and unless a petition for a review is filed by either party within fifteen days after the receipt by said party of the copy of said decision and notification of time when filed, and unless such party petitioning for a review shall within twenty days after the receipt by him of the copy of said decision, file with the board either an agreed statement of the facts appearing upon the hearing before the arbitrator or committee of arbitration, or if such party shall so elect, a correct stenographic report of the proceedings at such hearings, then the decision shall become the decision of the-Industrial Board: Provided, that such Industrial Board may for sufficient cause shown grant further time, not exceeding thirty days, in which to petition for such review or to file such agreed statement or stenographic report. Such agreed statement of facts or correct stenographic, report, as the case may be, shall he authenticated by the signatures of the parties or their attorneys and in the event they do not agree as to the correctness of the stenographic report it shall be authenticated by the signature of the arbitrator designated by the board.”

Two cases bearing upon the point have been decided by the Supreme Court. They are Bloomington, D. & C. R. Co., v. Industrial Board of Illinois, 276 Ill. 454, and Illinois Midland Coal Co. v. Industrial Board of Illinois, 277 Ill. 333. In the latter case, that court said: “Under the holdings of this court in Bloomington, D. & C. R. Co. v. Industrial Board, 276 Ill. 454, the filing of a properly authenticated stenographic report within the time fixed by the statute was not essential in order to give the Industrial Board jurisdiction to review the proceedings of the arbitration committee. If at any time before the hearing a properly authenticated stenographic report is filed with the Industrial Board this is all that is required by the statute. The date fixed by the statute as to the filing of such report is directory—not mandatory—and is not jurisdictional.”

In each of the above cases a document entitled as a stenographic report was actually filed within the time allowed, but in neither case was authentication made until after the expiration of that time. " Of course, in the eyes of the law, the filing of an unauthenticated report was a negligible act, and, as such, did not constitute compliance with the affirmative requirements of section b of the statute. Only when such document was authenticated could it be said that the requirements of the law were complied with. But, seemingly, the Supreme Court has taken pains to express quite • clearly and emphatically just what the statute means. The language is that “If at any time’ before the hearing a properly * authenticated stenographic report is filed” that is all that is required. And, further, it has said that: ‘ ‘ The date fixed by the statute as to the filing of such report is directory— not mandatory—and is not jurisdictional. ’ ’

If it were a matter of new impression, a question of first interpretation, we might be inclined, readily, to agree with the respondents; but it is, in our opinion, already governed by the decided cases.

Counsel have made the contention that there is an analogy between the statute, here subject to inter-lire tati on, and section 23 of the Municipal Court Act (J. & A. if 3334), but in view of what the Supreme Court has already decided in the two cases, supra, we are of the opinion that such a claim, even though there may be some analogy, becomes immaterial.

(2) Will mandamus lie? Paragraph (e) of section 19 of the Workmen’s Compensation Act as amended in 1915 [Callaghan’s 1920 Stat. 5475(19)], provides that “If a petition for review and agreed statement of facts or stenographic report is filed, * * *, the Industrial Board shall promptly review the decision of the arbitrator * * * and all questions of law or fact which appear * * * and such additional evidence as the parties may submit. ’ ’ Having held, as we have already stated, that the Commission had the right to take jurisdiction and the statute providing that under the circumstances it shall take jurisdiction, was the relator entitled by his petition for the writ of mandamus "to have it commanded so to do ? Two sets of principles must be borne in mind and kept separated: First, those that are involved in the process of determining whether the commission has the right to take jurisdiction; second, thosé that pertain to the determination of the matters involved after it has actually taken jurisdiction. If the Commission errs in its judgment as to the first, it may be compelled by mandamus to act; if it errs as to the second, it may not. In the first case, refusal to act is a negative, and although it involves the affirmative judgment of the commission, it is not, as regards the right to mandamus, a judicial act. The distinction may be an arbitrary one, but it is the law.

This court said in Calder v. City of Chicago, 176 Ill. App. 313, that, although it is well settled that “such writ will lie to compel a subordinate or quasi judicial tribunal to act where it is its duty to act, it will not require it to decide a matter in a particular manner, ’ ’ etc. People v. Wells, 255 Ill. 450; Crocker v. Superior Court Justices, 208 Mass. 162.

We are of the opinion that where the Industrial Commission has refused to take jurisdiction, when, under the law it was its duty to assume jurisdiction, mandamus is an appropriate remedy. And, further,' even though the decisions of the Industrial Commission may generally be reviewed by the statutory writ of certiorari, that does not, in the instant case, exclude the remedy by mandamus. Section 9, ch. 87, Hurd’s Eev. St. 1917 (J. & A. fí 7338).

Finding no error in the record, the judgment is affirmed.

Affirmed.

O’Connór and Thomson, JJ., concur.