text:
    Gustave A. Becker, Trustee, and Josephine E. Dunck, Appellees, v. Henry J. Fink et al. East St. Louis Lumber Company, Appellant.
    1. Appeal and ebbob, § 493

      —what objection cannot be raised first on appeal. Objection that a decree of foreclosure and for sale of the mortgaged premises en masse was erroneous cannot be made for the first time on appeal.
    2. Mechanics’ liens, § 17B*—who should be made parties in proceeding. All persons interested in the land involved in a mechanic’s lien proceeding should be parties to such proceeding, under section 11 of the Mechanic's Lien Statute (J. & A. If 7149).
    3. Mechanics’ liens, § 223*—when bill to redeem from sale is unnecessary. A mortgagee who was not made a party to a proceeding to enforce a mechanic’s lien in which the mortgaged premises were sold to satisfy such lien and a deed to the purchaser was delivered, held entitled to bring suit to foreclose the mortgage the same as though such proceeding had not been had, and it would not be necessary for such mortgagee to file a bill to redeem from such sale.
    4. Mechanics’ liens, § 156*—when right to priority over lien of prior mortgage is lost by delay. Where the holder of a mechanic’s lien did not bring suit to enforce such lien, after having given the required notice, until more than two years after final delivery of the materials for which the lien was claimed, as provided in section 9 of the Mechanic’s Lien Statute (J. & A. ¶ 7147), held that such lien holder thereby lost his priority over the lien of a prior mortgage.
    Appeal from the Circuit Court of St Clair county; the Hon. George A. Cbow, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Keefe & Sullivan, for appellant; C. P. Wise, of counsel
    Fred B. Merrills and Fred E. Merrills, for appellees.

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

   Mr. Justice Boggs

delivered the opinion of the court.

On May 10, 1908, Willis F. Carl, being the owner of Lots 12 and 13 in Block No. 17 of East Lansdowne Subdivision in St. Clair county, Illinois, made a contract with appellant, East St. Louis Lumber Company, to furnish lumber and mill material to be used in the construction of three buildings he was about to erect on said lots.

On May 16, 1906, Carl executed to Henry J. Fink, as trustee, three mortgages, each of which secured five notes of $500, all maturing three years after date, making a total secured by the three mortgages of $7,500. Said mortgages covered separate parcels of land.

Appellant furnished said material according to its contract, the last delivery being made in September, 1908. The materials not being paid for, a notice for lien was filed as provided by statute. Thereafter, appellant, East St. Louis Lumber Company, instituted proceedings to foreclose said lien.

Neither Henry J. Fink, as trustee, nor any of the holders of said notes which had been by Fink negotiated were made parties to said proceeding, Carl only being made a defendant thereto. A decree of foreclosure was rendered and on the 7th of July, A. D. 1910, said property was sold to appellant, East St. Louis Lumber Company. Thereafter on October 24, 1911, said property not having been redeemed, the master in chancery conveyed the same to appellant.

Henry J. Fink, trustee, having assigned the three mortgages to Gustave A. Becker, as trustee, and there being a default in the payment of the, principal and interest on said notes, at the January term, 1914, of the Circuit Court of said county, a bill was filed to foreclose said mortgages, to which bill Henry J. Fink, Willis F. Carl, Frances J. Carl, appellant, the East St. Louis Lumber Company, and certain other persons were made parties defendant. An answer was filed by appellant setting np said mechanic’s lien proceeding, the sale and deed to it of the premises involved, and alleging that it was the owner thereof, and that appellees had no interest therein.

Said cause was referred to a special master to take the evidence and report the same together with his conclusion of law and fact. The master found that appellees were entitled to a foreclosure and that the lien of said mortgages was, prior to the rights of appellant, acquired under its deed in said mechanic’s lien proceeding. Exceptions were filed to said report, which on hearing were overruled and a decree was entered finding that the lien of appellees under said mortgages was prior to the rights of appellant, and for foreclosure.

It is first contended by appellant that the decree of the trial court for' a foreclosure of the three mortgages and for a sale of the premises en masse was erroneous. This objection was not made on the hearing in the Circuit Court and, not having been raised there, it cannot be raised here for the first time. Glos v. Hoban, 212 Ill. 224; Haas Elec. & Mfg. Co. v. Springfield Amusement Park Co., 236 Ill. 466.

It is next insisted by appellant that notwithstanding appellees as holders of said mortgages and notes were not made parties to the mechanic’s lien proceedings, that their only right now is to file a bill to redeem from the sale under the mechanic’s lien decree. In 'support of this contention they cite Kelgour v. Wood, 64 Ill. 345; Ellison v. Miller, 137 Ill. App. 208; Walker v. Warner, 179 Ill. 16; Alsup v. Stewart, 194 Ill. 595; Rodman v. Quick, 211 Ill. 546. An examination of these cases, however, discloses that the question raised in those cases' was with reference to the right of a grantee of mortgaged premises, where the premises involved were mortgaged at the time of the conveyance and were afterwards foreclosed without making the grantee a party defendant. There is no question hut in cases of that character the right of the grantee is simply a right to redeem from the sale under the mortgage. It is, however, different in a mechanic’s lien proceeding, and the cases above cited do not apply.

Section 11 of the Lien Statute, being paragraph 25 of chapter 82, Hurd’s Rev. St. (J. & A. ¶ 7149), provides that, all persons interested in the premises in which mechanic’s lien foreclosure proceedings are brought shall be made parties, and our Supreme Court has frequently held that in enforcing a mechanic’s lien, all persons interested in the land involved shall be made parties to the proceedings, and if not so made parties their interest will not be affected by the decree. Williams v. Chapman, 17 Ill. 423; Scanlan v. Cobb, 85 Ill. 296; McGraw v. Bayard, 96 Ill. 146; Bannon v. Thayer, 124 Ill. 451.

In the case of Bannon v. Thayer, supra, at page 452, the court says: “On the 17th of June, 1882, Bannon filed in the office of the clerk of the Circuit Court of Will county his petition for a mechanic’s lien, to enforce payment of the amount due him under his contract with Beanly, making Beanly and Greorge Woodruff defendants. Woodruff died on the 26th of October, 1882, and the suit was thereafter declared to be abated as to him. Thayer was not made a party to the suit, and the only remaining party after the death of Woodruff was Beanly, who answered by his conservator. Decree was rendered on the 8th of October, 1883, in conformity with the prayer of the petition, and Bannon, afterwards, at a sale under that decree, became a purchaser of the lots. The note held by Wheeler not having been paid, was assigned to Thayer after the petition for the mechanic’s lien was filed, and before final decree thereon was rendered. The present bill is by Thayer, as the holder of the note delivered to Wheeler to foreclose the deed of trust.

“Barm on has set up in his answer, and relies for a defense, on the proceedings to enforce the mechanic’s lien. The lower courts held, that neither Thayer nor Wheeler having been made a party to that proceeding, Thayer is unaffected by it, and the only question here is, whether that ruling is right. We held in McGraw v. Bayard, 96 Ill. 153, that both the trustee and the cestui que trust are necessary parties in such case, and this was predicated upon our previous ruling, to like effect, in Scanlan v. Cobb, 85 Ill. 296.”

We, therefore, hold that it'was not necessary for appellees to file a bill" to redeem in this case, but under the authorities above cited they were entitled to file a bill to foreclose said mortgages, just the same as though the mechanic’s lien proceeding had never been had.

It is next contended by appellant that the court erred in not finding that the rights of appellant under its deed from the master in chancery in the mechanic’s lien proceeding was a superior lien to the lien held by appellees under said mortgage. Section 7 of the Mechanic’s Lien Statute (J. & A. ¶ 7145) provides that in order to acquire and enforce a lien for labor or material as against other lien holders or persons interested in the premises in which the lien is sought to be enforced, shall file a notice of said lien with the clerk of the Circuit Court within four months after the final delivery of the materials for which a lien is claimed. Section 9 of said Act (J. & A. ¶ 7147) provides that suit shall be brought within two years from the completion of contract, etc., to foreclose said lien, to which bill all parties or persons interested must be made parties defendant. Appellees were not made parties to the bill to foreclose the mechanic’s lien, and more than two years had intervened since the final delivery of materials by appellant under said contract with Carl. This being true, appellant loses its right to its priority over the lien of appellees’ mortgage. Dunphy v. Riddle, 86 Ill. 22; Haines v. Chandler, 26 Ill. App. 400.

In Dunphy v. Riddle, supra, at page 26, the court says: “The statute does not say, in terms, against whom the suit shall be commenced within the six months, its language being, ‘unless suit be instituted to enforce such lien within six months’; and it is contended by appellant that it is only needful to commence suit to enforce the lien against the owner and property' within the six months, and that at any time afterwards, and after the expiration of the six months, upon amendment of the petition, any creditor or incumbrancer may be made a party defendant, and the lien be enforced against him.

“We cannot adopt this as the true construction of this 28th section of the statute, but think it to be otherwise; that the person against whom the suit must be instituted within the time limited is the one against whom the right of lien may be asserted; that the suit must be instituted against the creditor or incumbrancer within the six months; that such interpretation accords with the rule of strict construction which has ever been applied to this and like statutes.; and where suit is commenced to enforce the lien against the owner, and afterwards, upon amendment of the petition, a creditor or incumbrancer is made a party defendant to the suit, that the suit cannot be considered as having been commenced against such creditor or incumbrancer until he was so made a party defendant.”

The statute in force at the time the above opinion was rendered required the bill to be filed in six months. Under the statute now in force, the lien holder is given two years in which to file his bill provided he has filed the necessary notice of lien, but the rule of law governing the rights of persons not made parties to the mechanic’s lien proceeding has not been changed. In this case more than two years having expired since the bill for mechanic’s lien was filed, before the bill to foreclose said mortgages was filed, the right of appellant to a prior lien was lost.

Finding no reversible error in the record, the decree of the trial court will be affirmed.

Decree affirmed.


source: Caselaw Access Project

author: Mr. Justice Boggs

license: Public Domain

text:
    C. Heitmeyer, Appellee, v. Baltimore & Ohio Southwestern Railroad Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Clay county; the Hon. Wíluam B. Weight, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by C. Heitmeyer, plaintiff, against the Baltimore & Ohio Southwestern Railroad Company, defendant, to recover for the negligent firing, and resulting destruction, of plaintiff’s straw, hay, etc., from defendant’s engine. From a judgment for plaintiff for $75, defendant appeals.
    Kramer, Kramer & Campbell and Rose & McCollum, for appellant; Edward Barton, of counsel.
    James H. Smith, for appellee.

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

   Mr. Justice Boggs

delivered the opinion of the court.

Abstract of the Decision.

1. Trial, § 195 —when refusal to direct verdict for defendant is proper. Where the evidence tended to sustain the averments of the declaration, refusal to direct a verdict for the defendant, held not erroneous.

2. Railroads, § 941*—when instruction in action for allowing grass to accumulate on right of way and spreading of fire is erroneous. An instruction, in an action against a railroad company charging negligence in allowing large quantities of dry grass to accumulate on its right of way, that same were ignited by fire from its. engine and such fire spread to and destroyed plaintiff's straw, hay, etc., that if the jury believe from the evidence that the plaintiff sustained damage defendant would be liable for such damage and that they should add thereto plaintiff’s reasonable solicitor’s fees, held erroneous, in omitting to submit the question of defendant’s liability under the pleadings to the jury, and in directing the addition of such fees, as plaintiff would not be entitled to such fees unless he showed defendant had allowed accumulation of combustible material on its right of way, and that the fire complained of was set out on the right of way and by reason thereof spread to plaintiff’s premises.

3. Trial, § 199*—when direction of verdict is erroneous. Where the evidence was conflicting upon a question of fact, an instruction directing a verdict is erroneous.

4. Appeal and error, § 1628*-—■when error in instruction not curable. An instruction which was substantially erroneous in directing a verdict where the evidence was conflicting is not curable by other instructions.

5. Railroads, § 939*—when contributory negligence in not fighting fire is question for jury. Whether plaintiff, in an action against a railroad company for the negligent firing, and resulting destruction, of plaintiff’s straw, hay, etc., from defendant’s engine, was negligent in not fighting such fire, held a question for the jury.


text:
    Effie Ellis, Appellee, v. State Mutual Life Assurance Company of Worcester, Massachusetts, Appellant.
    1. Insurance, § 112

      —when actual delivery is condition precedent to recovery on life insurance policy. Where an application for life insurance provided that the contract or policy applied for should not take effect until the first premium thereon should have been actually paid and the policy delivered to the applicant during his lifetime and his present condition of health, and the policy issued on such application also provided that it should not take effect until actually delivered and the first premium thereon paid during the insured’s lifetime and that the application and the policy together should constitute the entire contract between the parties, held that such stipulation as to actual delivery of the policy to the applicant while alive and in the condition of health he was at the time of the application was a condition precedent, performance of which would be essential to a recovery on the policy.
    2. Insurance, § 113*—When evidence insufficient to show actual delivery of policy. Evidence held to show there was no actual delivery of the policy sued on to the insured, as required by the policy, where It was sent to the Insurer’s agent by the insurer and remained in such agent’s possession until after the death of the insured.
    Appeal from the Circuit Court of Johnson county; the Hon. William N. Butler, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed with finding of fact.
    Opinion filed April 13, 1917.
    Cowan & Huffman and Mansfield & Cowan, for appellant.
    Fred R. Young and O. R. Morgan, for appellee.

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

   Mr. Justice Boggs

delivered the opinion of the court.

Appellee, Effie Ellis, brought suit in assumpsit in the Circuit Court of Johnson county to recover on a policy of insurance executed by appellant, the State Mutual Life Assurance,Company of Worcester, Massachusetts, to the husband of appellee, in which policy she was named as beneficiary.

Appellant filed a plea of the general issue, with notice of special matter of defense, the special matter being that the policy was not to be in effect until actually delivered and the first premium paid during the lifetime of the assured, and while he was in the same condition of health as when his application was signed, and that the policy was not so delivered. A trial was had resulting in a verdict and judgment in favor of appellee for $1,057.48, being the amount of the policy and interest. To reverse said judgment, appellant prosecutes this appeal.

The application signed by Ellis contained, among other things, the following provision: “That the contract or policy applied for shall not take effect until the first premium thereon shall have been actually paid and the policy delivered to me during my lifetime and the present condition of health.” The policy issued thereon contained this provision: “This policy shall not take effect until actually delivered and the first premium paid thereon during the ‘lifetime of the insured. ’ ’ ’ Said policy contained the further provision: “That this policy and the application therefor shall constitute the entire contract between the parties hereto.”

Appellant contends, for a reversal of said judgment, that the court erred in admitting in evidence, over objection, the policy sued on; that the court erred in refusing the motion of appellant at the close of appellee’s evidence, and then again at the close of all the evidence, to direct a verdict in its favor; that the court erred in giving certain instructions on behalf of appellee and that the verdict is against the manifest weight of the evidence.

There is no controversy as to the facts, and they aré as follows: On November 20, 1914, the assured, Albert Ellis, husband of appellee, made written application through F. B. Hines, agent for appellant, for a policy of insurance in appellant company for $1,000, and at that time paid the first premium, • which was afterwards remitted by the agent to appellant. The application was accepted by appellant and the policy sued on was executed on the 26th day of November, 1914, and was forwarded by appellant to its general agent at Chicago, reaching his office on the 12th day of December. After being registered, on the same day, said policy was forwarded for delivery to said agent, Hines, at Albion, Illinois, where it arrived either on the 13th or on the morning of the 14th of December, 1914. Hines was not at home and did not return for some days, but found said policy among his mail on his return. The assured was a man of about thirty-five years of age and was at the time of the application and continuously thereafter until his death, which occurred on the evening of December 14, 1914, in good health and in the same condition of health as when the application was made. On the evening of December 14th, Ellis had .gone with his brother-in-law, Lee Hunsacker, to the bam to feed the stock. The assured went to the silo for ensilage and his brother-in-law went to the bam proper. When Hunsacker had finished his part of the work he went to the silo where he found Ellis lying at the foot of the ladder at the base of the silo in a dying condition. The ladder was perpendicular to the silo and consisted of iron lugs reaching out from each side and forming steps up which he was required to go to get to the height of the material in the silo, a distance of some twelve or fourteen feet. Ellis was carried to the house and died between 4 -.30 and 5:00 p. m. on that day. The policy in question reached the office of Hines the evening of the day before, or at least on the morning of the day, on which Ellis died.

The evidence also discloses that the written instructions from appellant to its agent, Hines, among other things, contained this provision: “That said agent shall have no authority to accept risks of any kind, to make, alter or discharge contracts for insurance, waive forfeitures, fix any extra premiums for hazardous risks, * * * deliver any policy or collect any over-due premium unless the insured shall he in good health, collect any premium without giving a receipt therefor duly signed by the president or secretary of said company, or receive partial payments of any premium, * * * without express authority in writing from the general agent of the company.”

The evidence further discloses that for some year or two prior to his death, Ellis had been working on a farm owned by said Hines near Ozark in Johnson county, being something like ninety miles from Albion, the. home of Hines, where he maintained his business office. The facts being undisputed, the sole question for this court to determine is whether or not under the authorities the policy sued on was delivered to the assured prior to his death.

Appellant insists under its instructions to its agent, Hines, the policy in question was not to be delivered to Ellis until said agent ascertained that he was alive and in the same condition of health as he was when the application was made, or that he was at least alive and in good health. In other words, appellant contends that the physical possession of the policy must have come to Ellis prior to his death and while he was in the same condition of health as when the application was signed. On the other hand, appellee insists that the provisions of said application and policy above referred to should so be construed as to hold that the mailing of the policy to Hines,, the local agent, constituted a delivery of said policy to Ellis, the assured, and that was the holding in effect of the trial court in its third given instruction on behalf of appellee.

, We are of the opinion that the stipulation in the application and policy in question, providing that the policy shall not take effect until actual delivery to the applicant while alive and in the condition of health he was in at the time the application was taken, is a condition precedent and, unless such stipulation has been performed, appellee would not be entitled to recover in this case. The precise question here involved has not been passed upon by the Appellate Courts or by the Supreme Court of this State. In the case of Nyman v. Manufacturers & Merchants Life Ass’n, 262 Ill. 300, the Supreme Court held that a provision to the effect that the insured must be in good health at the time the policy is delivered was a binding one, and if the proof showed that at the time of the delivery of said policy the insured was not in good health, the insurance company could defeat the policy, unless at the time of such delivery the insurance company was aware of said fact.

In the case of Devine v. Federal Life Ins. Co., 250 Ill. 203, the Supreme Court in discussing the question of delivery of an insurance policy, at page 206, says: “The application may or may not provide that the insurance shall take effect only upon the delivery of the policy to the insured. Unless expressly made so by the contract itself, an actual delivery of a policy of insuranee to the insured is not essential to the validity of the contract, and the rule under such circumstances is, that a policy becomes binding upon the insurer when signed and forwarded to the insurance broker to whom the application for insurance was made, to be delivered to the insured.”

This court in the case of Cannon v. Michigan Mut. Life Ins. Co., 103 Ill. App. 414, in passing on an insurance policy containing the following provision, “This policy shall not take effect unless tlie insured is in good health at the time of its delivery to him,” at page 417 says: “The policy never was delivered to Cannon. He was mortally ill and at death’s door before the policy was written, and had been dead twenty-four hours when the policy reached the local agent, whose duty it was to deliver such policies if he should find all the conditions warranting a delivery to exist, and not otherwise.”

It will be observed that this court in the foregoing case calls attention to the fact that the local agent was only to deliver the policy to the assured provided he should find “that assured at the time of such delivery met the conditions stated in the policy, and not otherwise.” That language is particularly applicable in this case for the reason that the express instruction to Hines, the local agent, was that he should before delivery of the policy to the assured first ascertain whether he was alive and in the same condition of health he was in at the time the application was taken.

In the case of Bowen v. Prudential Ins. Co. of America, 178 Mich. 63, reported in volume 51, L. R. A. (N. S.) 587, the court in passing on a policy of insurance based on an application containing the provision, “the policy here applied for shall not take effect until the same shall be issued and delivered by the said company, and the first premium paid thereon in full, while my health is in the same condition as disclosed in this application,” says: “This is plain language, easily understood. The application was initiative of the proposed contract to become a part of it, when consummated, was binding upon the applicant, and fixed a time when his policy should become operative and his insurance begin. * * * While it is generally held, in the absence of an agreement to the contrary, that actual delivery is not a prerequisite of insurance, provided the contract is otherwise complete, and it is evident that the parties intended it should be effectual without manual delivery of the policy, * * * it is also well settled that, ‘If there be a provision or an agreement that the policy shall not be in force until actual delivery to the insured, the contract is not consummated nor the company bound in the absence of such delivery.’ ” Citing, 1 Joyce on Insurance, 98; Cooley’s Briefs on Insurance, p. 451.

In 25 Cyc. 718, 719, it is stated with reference, to the delivery of insurance policies that: “The placing of the completed policy in the hands of the agent for delivery, without condition, to the insured completes the contract, although the actual delivery by the agent to the insured is not made before the death of the insured. But if the delivery to the agent of the company is with the understanding that it is to be delivered by the agent to the insured only after the performance of some condition, then, until the condition is performed and it becomes the duty of the agent to deliver the policy to the insured, the contract is not complete. * * * It is a usual condition of a life insurance policy that the delivery shall not be effectual to create a binding contract unless the insured is alive and in good health when the policy is delivered and the first premium paid, and under such conditions the death of the insured before the delivery of the policy will prevent its becoming effectual.”

In Yount v. Prudential Life Ins. Co., (Mo. App.) 179 S. W. 749, the policy sued on was issued and sent to the local agent and was received by him a day or two before the death of the insured. It was said by the court in passing on the right of recovery on said policy: “It is undisputed that the policy was never delivered, and also that the written application signed by the deceased expressly provided that it should be a part of the insurance contract; that the policy should not take effect until its issuance and delivery, and the first premium thereon paid in full, while the applicant was in good health. Consequently, we. are unable to see what there was to submit to the jury. The provision that the policy should not take effect until its delivery is an agreement the parties could lawfully make, and, having made it, there is no reason why it should not be enforced.” Citing, Gallop v. Royal Neighbors of America, 167 Mo. App. 85; Kirk v. Woodmen of the World, 169 Mo. App. 449. “Clearly a delivery of the policy to the applicant during his lifetime and while he was in good health was required before the things done by the parties could ripen into a contract. It was a condition precedent to the completion of the contract.” Citing, Rhodus v. Kansas City Life Ins. Co., 156 Mo. App. 281; Cravens v. New York Life Ins. Co., 148 Mo. 583, reported in 53 L. R. A. 305.

In 16 Amer. & Eng. Encyc. of Law (2nd Ed.) 855, in discussing the question of the delivery and acceptanee of a policy of insurance, it is said: “If all the terms of the contract have been agreed upon between the parties, the formal delivery of the policy by the insurer and its acceptance by the insured are not essential to its validity; but if the terms have not been agreed upon, or if the application provides, and if it is a condition of the policy itself, that it shall not become effective until it is delivered to the applicant, the contract of insurance will not become binding until such delivery.”

Counsel for appellee cite the case of Mulligan v. Metropolitan Life Ins. Co., 149 Ill. App. 516, as supporting their contention, that the policy in question should be held to have been delivered to the insured when the same reached Hines, the local agent, notwithstanding that it never, in fact, reached the possession of the insured. An examination of this case will disclose that the question before the court was with reference to whether or not an arrangement had been made by the local agent with the assured by which the assured was to have a right to pay the first premium in instalments, and as to whether the policy was being held by said local agent for the assured pending his making payment of said premium, and the court held that the matter of payment of said premium before the policy should become effective was waived and that the fact that the premium had not been paid would, under the circumstances, not be a defense to a suit on the policy. But in this case there was no waiver by appellant of any of the provisions of the policy sued on.

We hold, therefore, in view of the foregoing authorities, that the policy sued on was never delivered and that the court erred in not directing a verdict in favor of appellant, and that said judgment must be reversed therefor.

As the facts are undisputed in this case, we find therefrom that the policy sued on was never delivered and that by reason thereof appellee is not entitled to recover, and this finding is to be incorporated in the judgment to be entered by the clerk of this court.

Judgment reversed with finding of fact.


text:
    Oby Dawson, Appellee, v. East St. Louis & Suburban Railway Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. Geobge A. Cbow, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by Oby Dawson, plaintiff, against the Bast St. Louis & Suburban Railway Company, defendant, to recover damages for personal injuries sustained by plaintiff’s team and wagon, being struck by one of defendant’s cars. From a judgment for plaintiff for $100, defendant appeals.
    Abstract of the Decision.
    1. Street railroads, § 133

      —what are questions for jury in action for injuries due to collision of team with car. In an action to recover damages for personal injuries sustained as the result of plaintiff’s team and wagon colliding with one of defendant’s cars, the evidence being conflicting, held that the questions whether plaintiff was in the exercise of due care for his own safety prior to and at the time of the injury complained of, or whether defendant was guilty of negligence in the operation of its car at the time of such injury, or whether such negligence, if any, was the proximate cause of plaintiff’s injury, were for the jury.
    2. Appeal and error, § 1411*—when judgment on conflicting evidence not disturbed. Where the evidence was conflicting, judgment held not reversible upon the ground that finding was against the manifest weight of the evidence.
    3. Trial, § 195*—when refusal to direct verdict for defendant is proper. Refusal to direct a verdict for the defendant, held not erroneous where the evidence tended to support the averments of the declaration.
    4. Instructions, § 151*—when refusal of cumulative proper. It is hot error to refuse to give instructions already covered by other given instructions.
    Williamson, Burroughs & Ryder, for appellant.
    Geers & Geers, for appellee.

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

   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Central Funding Company, Appellant, v. A. K. Gibson, Appellee.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebbob, § 1173

      —what question reviewed where no propositions of law were presented or objections to evidence made. Where no propositions of law were presented by either party and no objections were made to evidence offered by either party, held that the only question for review would be whether the finding and judgment were against the manifest weight of the evidence.
    2. Contracts, § 374*—when plaintiff must prove ability and readiness to perform contract for instruction of student. Where plaintiff entered into a certain contract to furnish defendant certain instruction in law in consideration of a certain total payment to be made by defendant in monthly instalments, and defendant refused, after making the first payment, to receive the first instalment of such instruction, held that plaintiff could not recover in an action for the full amount of such consideration without proving its ability and readiness to perform the contract on its part.

      Appeal from the Circuit Court of Effingham county; the Hon. William B. Wbight, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by the Central Funding Company, plaintiff, against A. K. Gibson, defendant, to recover on a contract for the payment by defendant of the total sum of $75, in monthly instalments of $5, for certain instruction in law to be given by plaintiff and the American Extension University. From a judgment for defendant for $5 on a claim of set-off, plaintiff appeals.
    Walter E. Rinehart, for appellant.
    Parker & Rickelman, for appellee.

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

3. Contracts, § 267 —what are remedies of party upon receipt, before performance, of notice of intention not to perform. Where one party to a contract gives notice before the time of performance arrives that he does not intend to perform, the other party may treat such notice as a breach and bring his action, or may decline to accept such notice as a breach and insist that the contract shall remain in force up to the time fixed for its final performance, holding the party refusing to perform responsible for the consequence of such refusal.


text:
    Sarah A. Cheatham, Appellee, v. East St. Louis Railway Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of St. Clair county; the Hon. W. M. Vanbeventeb, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by Sarah A. Cheatham, plaintiff, against the East St. Louis Railway Company, defendant, to recover damages for personal injuries sustained while plaintiff was about to enter defendant’s street car. From a judgment for plaintiff for $1,500, defendant appeals.
    Barthel, Farmer & Klingel, for appellant.
    D. J. Sullivan, for appellee.

      Abstract of the Decision.
    1. Appeal and error, § 1411

      —when verdict on conflicting evidence not disturbed. The evidence being conflicting, a verdict will not be disturbed unless manifestly against the weight of the evidence.
    2. Carriers, § 479*—when evidence sufficient to sustain verdict for plaintiff in action for personal injuries. In an action by a street car passenger to recover damages for personal injuries sustained while about to enter defendant’s car, a verdict for plaintiff held not against the manifest weight of the evidence, the evidence being conflicting.
    3. Damages, § 110*—when verdict for personal injuries is not excessive. Where plaintiff by reason of the injury complained of was confined in a hospital for four weeks and was incapacitated thereafter from walking or doing any work except such as might be done sitting in a ¿hair, or to conduct a lunch counter which she had conducted before the injury, a verdict of $1,500 held not excessive.
    4. Damages, § 191*—province of jury to determine amount. It is for the jury to say, in an action for damages for personal injuries, under the evidence the amount the injured person is entitled to recover.
    5. Damages, § 241*—when verdict of jury not disturbed. Unless the evidence shows that the jury in finding the amount of damages for injuries sustained were governed by prejudice or passion in fixing such amount, their finding should not be disturbed for the reason alone that it is excessive.

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

   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Charles J. Smith, Administrator, Appellee, v. L. S. Smith et al., Appellants.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Executors and administrators, § 240

      —when no legal excuse is shown for not filing claim in time. Where adminstration of an estate had been transferred from the County Court to the equity side of the Circuit Court, and the transfer was made five months after issuance of the original letters, and it appeared that the claim was ‘filed within one year after such transfer; that no pleadings were filed; that objection was made to the claim oñ the ground of its not having been filed within one year of the granting of letters by the County Court; that claimant, in excuse for not filing the claim within the year, presented testimony that he had been advised by counsel that he would have one year for the filing of the claim after the transference of administration to the Circuit Court, and that he had been physically ill, held that no legal excuse for not filing the claim within the year provided by the statute had been shown, and that the cause should be remanded with directions to modify the judgment so as to make it apply solely to subsequently discovered and inventoried assets.

      Appeal from the Circuit Court of Perry county; the Hon. Louis Bebnretjter, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Claim by Charles J. Smith, administrator of the estate of John Smith, deceased, claimant, against L. S. Smith, C. J. Eschman and H. C. Miller, trustees of the estate of Henry Horn, deceased, defendants. From a judgment for $1,179.17 in favor of claimant, defendants appeal.
    B. W. Pope, for appellants.
    Nelson B. Layman, for appellee.

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

2. Equity, § 79*—when equity will give effect to statute of limitations. Where administration of an estate had been transferred from the County Court to the equity side of the Circuit Court, and it appeared that the transfer occurred five months after issuance of the original letters; that the claim was filed within one year after such transfer; that no pleadings were filed, and that objection was made to the claim on the ground of its not having been filed within one year, held that equity would regard and give effect to the statute of limitations, and not apply equity rules of practice.

3. Equity, § 79*—when will not assist person whose rights are barred by statute of limitations. Where a remedy at law is afforded and the party neglects to avail himself of it, equity will not assist such party after his rights have been barred by the statute of limitations.

4. Executors and administrators, § 264*—when filing of plea of statute of limitations is unnecessary. The filing of a plea of the statute of limitations is not necessary in the defense of claims against an estate.

5. Limitation op actions, § 108 —what is effect of absence of pleadings on necessity of filing plea of statute. Where no pleadings are filed in a proceeding, a plea of the statute of limitations is unnecessary, as there is no declaration to which such plea could run.


text:
    John C. Miller, Appellee, v. Grand Lodge Brotherhood of Railroad Trainmen, Appellant.
    1. Appeal and error, § 1673

      —when right to assign ■ error on issue made by plea in abatement is not waived. Where, in an action against a nonresident fraternal association, the return of process showed service on the grand lodge by service on the treasurer of a local subordinate lodge, and defendant appeared specially and by plea in abatement denied that the person served was treasurer, etc., or any other agent of defendant, and that such subordinate lodge was its agent, and an issue of fact was formed on the plea and tried without a jury, and the court found for plaintiff, and in accordance with section 45 of the Practice Act (J. & A. If 8582) entered judgment of respondeat ouster against defendant, and defendant thereafter by leave of court filed the general issue and special pleas, and plaintiff contended that by pleading to the merits after such judgment, defendant waived its right to assign error on the finding as to the issue made on the plea in abatement, held that such contention invoked the common-law rule, which had no application in view of the fact that the plea raised one of the issues enumerated in said section 45, and the court having found the issue against defendant, it properly entered such a judgment, and defendant had the right to plead over to the merits.
    2. Insurance, § 862*—who is agent of nonresident organization for purpose of service of process. In an action against a nonresident fraternal organization to recover on a benefit certificate, where it was contended that service of summons on the treasurer of one of the subordinate lodges was not made on him as treasurer of the defendant, the constitution and general rules considered and held that such subordinate lodge was an agent of defendant, and that service on such treasurer was service on the subordinate lodge itself, as agent of the grand lodge.
    3. Appeal and error, § 1673*-—when right to assign error on ruling adverse to plea in abatement is not waived. The right to assign error on a ruling adverse to a plea in abatement is not waived by pleading to the merits.
    4. Insurance, § 120*—when contracts construed in favor of insured. It is a fundamental law of construction of insurance contracts in Illinois that all uncertainties in such contracts shall be resolved in favor of the assured.
    5. Insurance, § 717*—when constitution of order construed as

      allowing recovery for permanent disability other than that specifically named. In an action against a fraternal association to recover on a benefit certificate, where the injury sustained necessitated the amputation of one toe, which cbncededly caused a permanent disability, but defendant contended that the evidence failed to show that plaintiff sustained one of the injuries mentioned under a certain section of the constitution of the Order, and that therefore he could not recover on the certificate, but was required to submit his claim solely under another section relating to systematic benevolence, held that the words “but not otherwise,” following the specific enumeration of what would be considered a total disability, referred to the furnishing of the proofs in such cases, and did not have the effect' of excluding liability for all other forms of permanent injury.
    6. Insurance—when excuse for failure to file copy of certificate is shown. In an action upon a benefit certificate, where the refusal to grant a continuance on the ground of the absence of a copy of the certificate sued on was complained of, and where it appeared that the certificate had been in the possession of the defendant prior to and since the commencement of the action, held that an excuse for filing of a copy of the instrument was shown.
    7. Insurance, § 913

      —when point that injury occurred before acceptance of certificate may not be raised. In an action on a benefit certificate in which there was a finding for plaintiff, and on appeal the point was made that the certificate sued on, being dated September 1st, was not accepted by the assured until the 14th, and the injury occurred on the 10th, held that as the question was not raised in the trial court it could not be raised for the first time on appeal.
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Rehearing denied June 16, 1917.
    N. C. Lyrla, for appellant; Collister, Gentsch & Kavanaugh, of counsel.
    T. M. Webb, for appellee.

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

This appeal is prosecuted by appellant to reverse a judgment of $2,000 rendered by the Circuit Court of St. Clair county on a beneficiary certificate held by appellee in appellant, Brotherhood of Railroad Trainmen.

It is first contended by appellant that the court erred in rendering judgment of respondeat ouster against it on an issue made by replication to a plea in abatement filed by it denying service.

The sheriff’s amended return on the summons was as follows: “I have duly served the within summons upon the within named defendant, G-rand Lodge Brotherhood of Railroad Trainmen, by reading and also delivering a true copy thereof to F. H. Lentz, Treasurer of Main Lodge Brotherhood of Railroad Trainmen, No. 545, of the Grand Lodge Brotherhood of Railroad Trainmen, the defendant, the President or other superior officer of the said Main Lodge Brotherhood of Railroad Trainmen, No. 545, of the Grand Lodge Brotherhood of Railroad Trainmen, not found in my County, and the President or other superior officer of the said Grand Lodge Brotherhood of Railroad Trainmen not found in my County, etc.”

Appellant, a corporation, appeared specially by its attorney, and by its plea in abatement denied that Lentz was treasurer, president, clerk, etc., or any other agent of appellant, and also denying that Main Lodge Brotherhood of Railroad Trainmen No. 545 was the agent of appellant, Grand Lodge Brotherhood of Railroad Trainmen. To this plea in abatement appellee replied, traversing the allegation of the plea that main lodge was not an agent of appellant, and averring that said main lodge was a subordinate lodge of appellant. An issue of fact on the plea in abatement being thus formed, it was, by agreement of the parties, tried by the court without a jury. The court found the issues for appellee and in accordance with section 45 of the Practice Act (J. & A. ¶ 8582) entered a judgment of respondeat ouster against appellant. Thereafter, by leave of court, appellant filed a plea of the general issue and three special pleas. A replication was filed to the first special plea,.and a demurrer filed to the second and third special pleas was sustained. A trial being had, resulted in a verdict and judgment as above set forth.

It, is insisted by appellee that appellant having pleaded to the merits of the case after the judgment of respondeat ouster, thereby waived its right to assign error on the finding and judgment of the court on the issue made by the plea in abatement and the replication thereto. At common law and prior to the passage of the Practice Act of 1907, when an issue of law was made by a plea in abatement and the demurrer was sustained, a judgment of respondeat ouster was entered, and thereafter the defendant had the right to plead to the merits. When, however, an issue of fact was made by replication to' the plea in abatement and a trial was had on the issue of fact, in case the issue of fact was found against the defendant, the judgment was quod recuperet. After a judgment of quod recuperet on the issue in abatement, the defendant could not plead to the merits, but the court on the trial of the issue of fact on the plea in abatement would hear evidence as to the amount of plaintiff’s damages and render judgment accordingly. Italian-Swiss Agricultural Colony v. Pease, 194 Ill. 98; Earl Mfg. Co. v. Summit Lumber Co., 125 Ill. App. 391; Pollock v. Kinman, 176 Ill. App. 361; Chitty Pleadings, vol. 1, p. 465.

By the passage of section 45 of the Practice Act of 1907 (J. & A. ¶ 8582), it is provided that: “If the issue on any plea in abatement is the truth of a statement in the return on the summons, or that the defendant is sued out of his proper county, or is not subject to suit in the county in which the suit is brought, or that the court has no jurisdiction over the person of the defendant, and such issue is found against the defendant, the judgment shall be respondeat ouster.” It is apparent from a reading of the foregoing section of the Practice Act that the Legislature intended that a judgment of respondeat ouster should be entered when the issue made on a plea in abatement was any of those enumerated therein, regardless of whether the issue made was an issue of law or an issue of fact.

The plea here under consideration raises one of the issues enumerated in said section, and the court having found that issue against appellant, it properly entered a judgment of respondeat ouster.

Had the plea raised an issue of fact not enumerated in section 45, then, if said issue of fact be found against appellant, the judgment would have been quod recuperet and appellant would not have had the right to plead over to the merits. Pollock v. Kinman, supra. At common law where the judgment on a plea in abatement is respondeat ouster, the defendant by thereafter pleading to the merits is not barred from assigning as error, on appeal, the ruling of the court on the judgment of respondeat ouster. Drake v. Drake, 83 Ill. 526; Earl Mfg. Co. v. Summit Lumber Co., supra; Grand Lodge Brotherhood of Locomotive Firemen v. Cramer, 164 Ill. 9.

On trial of the issue of fact on the plea in abatement, the constitution and general rules of the Brotherhood of Bailroad Trainmen were introduced in evidence, from the different sections of which it appears that the Brotherhood consists of a grand lodge and such subordinate lodges as may hold legal and unreclaimed charters granted by the grand lodge. The grand lodge consists of certain general officers, including the Board of Insurance, and one delegate from each subordinate lodge, and the grand lodge has general control and supervision of subordinate lodges. The funds for the payment of insurance benefits were raised by assessment levied on the members, which assessments are required to be collected and remitted by the treasurers of the subordinate lodges. (Section 58.) If the subordinate lodge failed to remit its assessments it was declared defunct. Proofs of death or disability are required to be made through the secretary of the subordinate lodges. (Section 67.) And applications for insurance were made through the subordinate lodges. While only the delegates from subordinate lodges are a part of the grand lodge, it clearly appears from its constitution that the Brotherhood, itself, consists of the grand lodge and subordinate lodges, and that the grand lodge is merely the superior administrative body of the Brotherhood. The money raised by assessments on subordinate lodges belonged to the Brotherhood, and not to rihe grand lodge or subordinate lodges. (Sections 28, 29, 30.) The treasurer of a subordinate lodge was required to be bonded and the bond filed with the officers of the grand lodge. From the foregoing provisions, together with various other provisions of the constitution and rules "of appellant, Brotherhood, it is shown conclusively that the subordinate lodges were the agencies through which the Brotherhood derived all its funds and transacted a large part of its business, and that the grand lodge was the administrative body through which the funds were disbursed. The assessments on benefit certificates were paid to the subordinate lodges and paid over by them to the general secretary and treasurer. The whole trend of the evidence is to the effect that the subordinate lodge is the principal agency of the Brotherhood through which it collects and derives, its funds and also transacts a large part of its business.

The amended return shows that the summons was served on Lentz, treasurer of main lodge of the grand lodge, and not on him as treasurer of the grand lodge,, as contended by appellant. Main lodge was an agent of the appellant, Brotherhood, and of the grand lodge, and service on the treasurer of main lodge was service on the subordinate lodge, itself, as agent of the grand lodge. The trial court, therefore, did not err in entering a judgment of respondeat ouster.

Appellant cites and relies on the case of Grand Lodge Brotherhood of Locomotive Firemen v. Cramer, 53 Ill. App. 578, decided by this court, as laying down a different doctrine from that above announced. The return of the summons in the latter case is as follows: “I have duly served the within summons by reading and also delivering a true copy of the same to R. H. Stevenson, an agent of the said grand lodge of the Brotherhood of Locomotive Firemen, the president thereof not found in said county, this 9th day of August, 1893.” The court held in that case as a proposition of law: “That the master of a local subordinate lodge of a voluntary mutual benefit association is not necessarily and ex officio an agent of the supreme or grand lodge of such voluntary association, so that service of process can be had upon such master, and thereby bring the supreme or grand lodge into court.”

The court at page 580 says: “A careful reading of the officer’s return will show that the subordinate lodge was not served. Let it be conceded that this lodge could be served as a corporation under the fifth section of the Practice Act; what then? The president, or, in this case, the master, must be served if he can be found within the county. JDoes the return state that Stevenson was served as president or master of any lodge whatever? It does not; but by clear implication negatives the claim of any effort to serve the subordinate lodge through its master, or to serve the grand lodge through the subordinate lodge as agent.” There is nothing said by this court in the Locomotive Brotherhood case, supra, which militates against anything we have said in this opinion. On the contrary thereof, we think that, so far as it goes, it supports our holding in this case.

In the case of Grand Lodge Brotherhood of Locomotive Firemen v. Cramer, supra, the Supreme Court 'affirmed the decision of this court, in which judgment was affirmed against said Brotherhood based on the following return of process: “I have duly served" the within summons on F. W. Arnold Lodge No. 44, a subordinate lodge and agent of defendant, located and existing in said city, by reading and delivering a true copy of said summons to Robert A. Stevenson, master and chief officer of said subordinate lodge, in his capacity of such master, and also by reading and delivering a true copy of said summons to W. W. Grillis, secretary of said subordinate lodge, in his capacity as such secretary, and also by reading and delivering a true copy of said summons to William Boyne, an agent of the defendant, all of which was done on the 7th day of August, 1894; the president of said company not found in my county.” A plea in abatement denying jurisdiction was filed by said Brotherhood, to which a demurrer was sustained by the trial court. Thereafter pleas in bar were filed and the case was heard on the merits. The Supreme Court after holding that the right to assign error on the ruling on the plea in abatement was not waived by pleading to the merits, at page 14, said: ‘ There is no positive averment in the plea that the defendant is not a corporation, and liable, as such, to service in the manner provided by statute for the service of process upon corporations. Nor is there any averment that the ‘F. W. Arnold Lodge No. 44/ served as the ‘subordinate lodge and agent of the defendant/ was not such agent, so that assuming, for the argument, that the defendant, the ‘ Grand Lodge of the Brotherhood of Locomotive Firemen,’ was a corporation, the plea lacks the principal, essential averment that the summons was not served upon its agent. * * * Every intendment must be taken most strongly against the pleader. If, then, in considering the plea it be assumed that the defendant was a corporation, the plea is bad for not denying the agency of the subordinate lodge. ’ ’

While the Supreme Court has not definitely held that a nonresident corporation of the character of appellant can be served with process by serving a resident subordinate lodge as its agent, at the same time we think that inferentially in the case just quoted from it does so hold. In the case before us the question is not raised as to appellant being a corporation, and we therefore hold that service can be obtained on it by serving a subordinate lodge.

In view of the foregoing authorities we hold that inasmuch as the question of appellant being a corporation is not raised that service can be obtained on it by service of process on a resident subordinate lodge as its agent.

Counsel for appellant cites section 78 of its constitution and general rules which, in effect, provides that subordinate lodges of appellant shall not act as agent for appellant in matters pertaining to the insurance or beneficial department, unless specially authorized in writing by the president or general secretary and treasurer so to do, as a reason why service cannot be obtained on it through its resident subordinate lodges. What we have said heretofore with reference to other provisions of the constitution of appellant, which confer numerous powers on its subordinate lodges and which we have held sufficient to constitute said subordinate lodges as agents of said grand lodge sufficiently disposes of this contention.

It is next contended by appellant that on the merits of the case the judgment in favor of appellee is erroneous. The certificate issued to appellee on which suit is brought provides that the general rules of the Brotherhood shall constitute a part of the contract. Section 68 of the general rules is as follows: “Any beneficiary member in good standing who shall suffer the amputation or severance of an entire hand at or above- the wrist joint, or who shall suffer the amputation or severance of an entire foot at or above the ankle joint, or who shall suffer the complete and permanent loss of sight of both eyes, or upon becoming seventy (70) years of age, shall be considered totally and permanently disabled, but not otherwise, and shall thereby be entitled to receive, upon furnishing sufficient and satisfactory proofs of such total and permanent disability, the full amount of his beneficiary certificate.” The evidence in this case is to the effect that the appellee’s toes were injured to such an extent that one had to be amputated, and it seems to be conceded that he was thereby permanently disabled. Appellant, however, contends that inasmuch as the evidence fails to show he sustained one of the injuries mentioned in said section 68, that he cannot recover on the certificate, and that appellee should submit his, claim solely under section 70 of the rules to the systematic benevolence of the Brotherhood.

Practically the same questions raised here were discussed in the case of Bond v. Grand Lodge Brotherhood of Railroad Trainmen, 165 Ill. App. 490; in Convery v. Brotherhood of Railroad Trainmen, 190 Ill. App. 479, and in Dunlap v. Brotherhood of Railroad Trainmen, ante, p. 209, decided by this court at the present term.

In these several cases the various authorities were reviewed in connection with the construction to be placed on the various sections of appellant’s constitution, and the construction laid down by said authorities is adverse to the contention made by appellant herein.

In Dunlap v. Brotherhood of Railroad Trainmen, ante, p. 209, decided by this court at this term, we said, quoting from Convery v. Brotherhood of Railroad Trainmen, supra: “It is insisted that section 68 defines what shall be a total and permanent disability and that it excludes all liability for any other kind of permanent disability than that enumerated therein, no matter how total and complete it may be. We do not think this section should receive any such construction. This section simply provides what in certain instances will be considered a total disability, thus, if a member shall suffer the amputation of an entire hand at or above the wrist joint, or of a foot at or above the ankle joint, or the complete loss of sight of both eyes, he will be considered as being totally and permanently disabled without further question, and upon furnishing sufficient and satisfactory proofs the full amount of his certificate will be paid, but not otherwise. The words ‘but not otherwise’ refer to the furnishing of the proofs in such cases, and do not have the effect of excluding liability for all other forms of permanent injury. At least an ambiguity and uncertainty is created when the certificate is read in connection with these various sections of the constitution and by-laws, and it is a fundamental law of construction of insurance contracts in this State that all such uncertainties shall be resolved in favor of the assured.”

Various authorities from other States are cited and quoted from by appellant’s counsel in his brief. An examination of these authorities will show that certain of them apparently bear out the construction insisted upon by appellant. Inasmuch, however, as this court has heretofore had under consideration the various sections of appellant’s constitution which are involved in this case and have placed the construction thereon deemed proper by it, we see no reason in this case for changing such construction. We hold, therefore, that on the merits of the case the court did not err in overruling appellant’s motion for a new trial and in rendering judgment on the verdict.

It is next insisted by appellant that the court erred in refusing to continue the case on its motion for want of a copy of the instrument sued on, namely, said beneficiary certificate. The evidence discloses that the certificate issued to appellee by appellant was in the possession of the general secretary and treasurer of appellant, or of its attorney, at the time of the taking of the deposition of that officer in Cleveland, Ohio, and was attached to his deposition. Apparently it had been filed with proof of appellee’s claim in March, 1915, and had remained in the control of the general secretary until attached to his deposition. At any rate, the evidence discloses that the possession and control of said certificate had been with appellant or its officers prior to and at the time appellee brought his suit. It would therefore seem unreasonable to grant a continuance on the motion of appellant for failure on the part of appellee to file a copy of the instrument sued on, when said instrument was not in his possession, but was in the possession or control of appellant. The failure of a plaintiff to file a copy of the instrument sued on is excused where the original instrument has been lost or destroyed. Security Ins. Co. v. Slack, 183 Ill. App. 579. It would, therefore, seem as reasonable to excuse its being so filed where the original was in the hands of the opposite party. We hold, therefore, that the court did not err in refusing ¿ppellant’s motion for a continuance.

What we have already said on the merits of the case disposes of the question raised by appellant’s assignment of error on the action of the court in sustaining the demurrer to its second and third special pleas. Said pleas set up and. rely on sections 68, 70 and 75 of appellant’s constitution. Our holding is that the court did not err in sustaining a demurrer to said pleas.

It is next contended by appellant that the court erred in refusing to give the two refused instructions tendered by it on the trial of said cause. These instructions were based on the construction contended for by appellant as to section68 of its constitution. From what we have heretofore said in this opinion there was no error in the court refusing the same.

Lastly it is contended by appellant that the certificate sued on by appellee, being dated September 1, 3914, was not accepted by him until September 14, 1914, and that the injury for which he seeks a recovery occurred on September 10, 1914. This question was not raised in the trial court and cannot be raised here for the first time.

Finding no reversible error in the record of the trial court, the judgment will be affirmed.

Judgment affirmed.


text:
    Otto J. Unterbrink, Appellee, v. City of Alton (not appealing) and Horatio J. Bowman, Trustee, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. J. F. Gillham, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by Otto J. Unterbrink, plaintiff, against the City of Alton and Horatio J. Bowman, trustee of the estate of Simeon Byder, an insane person, defendants, to recover damages for personal injuries sustained from falling into a coalhole in a sidewalk in said city. From a judgment for plaintiff for $2,000, defendant Bowman appeals.
    Abstract of the Decision.
    1. Landlord and tenant, § 258

      —when evidence of prior accidents is admissible in action against landlord for injuries due to defective covering of coalhole. In an action against the trustee of an estate to recover damages for injuries sustained by plaintiff as the result of stepping on a loose iron lid covering a coalhole in a public sidewalk, held that evidence that prior to the renting of the premises to the tenant, who was in occupancy at the time of the accident in question, different persons had stepped into such coal-hole because the lid was loose, notice of which had been brought to the defendant, was competent as tending to show the unsafe or defective condition of the coalhole.
    2. Landlord and tenant, § 258*—when evidence sufficient to show that condition was same as at time of prior accidents. In an action against the trustee of an estate to recover damages for injuries sustained by plaintiff as the result of stepping on a defective lid covering a coalhole in a public sidewalk, where the evidence was conflicting on the question whether, when the premises were rented to the tenant, the coalhole was in the same condition as at the time prior accidents occurred, held that the finding of the jury in favor of plaintiff would not be disturbed.
    3. Landlord and tenant, § 260*—when instruction in action for injuries is in conformity with evidence. In an action against the trustee of the owner of premises to recover for injuries sustained by plaintiff as the result of stepping on a loose coalhole cover, where there was a conflict in the evidence as to whether the dangerous condition of the coalhole existed with the knowledge of the defendant at the time of renting the premises to the tenant in occupancy at the time of the accident, and where the defendant contended that an instruction that if the jury found that defendant was guilty of the negligence charged in either count of the declaration, and that plaintiff suffered damage as charged, and that plaintiff was exercising due care, the verdict should be for plaintiff, was erroneous as it permitted recovery on either count though there was no evidence to sustain the first count, held that under the evidence in the case there was no error in the giving of such instruction.

      R. D. Watson, William P. Boynton and Warnock, Williamson & Burroughs, for appellant.
    J. V. E. Marsh, for appellee.

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

4. Appeal and ebbob, § 1241*—when giving of erroneous instruction may not be complained of. The giving of an instruction based on an incorrect theory cannot be complained of where several instructions given on behalf of the party complaining were based on the same theory.

5. Damages, § 120*—when verdict for personal injuries is not excessive. A verdict for $2,000, held not excessive for injuries to a tailor earning $20 per week and who also earned from $100 to $200 per year playing in a hand, where although it was not clear as to whether the injuries were permanent, it appeared that they were severe and affected the kidneys and the nervous system, and resulted in decrease of weight, entire loss of salary for five weeks, and the reduction of earnings to $10 per week for five months, and at the time of the trial, two years after the accident, the plaintiff’s breathing was still affected so that he could not play in the band, and he had expended over $150 in endeavoring to be cured.

6. Damages, § 241 —when verdict not disturbed because excessive. The question of damages in an action for personal injuries is a question for the jury, and unless the reviewing court can say that in assessing the damages the jury have been governed by prejudice or passion, such court is not warranted in setting the verdict aside on the ground of excessiveness.


text:
    P. Burger, trading as East Side Metal Spinning Company, Appellee, v. St. Louis Bed & Manufacturing Company, Appellant.
    1. Corporations, § 487

      —who is not an agent of a corporation for purpose of service of process. In an action against a corporation, where service was had by delivering a copy of process to a person as “office manager,” where it appeared that the assets of the defendant' had been turned over to a creditors’ committee to be disposed of for the benefit of creditors, and that the committee placed a person in charge, who in turn employed the person to whom process was delivered, held that the person to whom process was delivered was employed by the creditors’ committee and not by the defendant, and was therefore not an agent of the defendant, and that the attempted service was void.
    2. Appeal and erbok, § 1236*—when defendant not precluded from questioning validity of service. Where, in an action against a corporation, the defendant entered a limited appearance, and the jury tried the issue as to whether the attempted service of summons on the defendant was valid or not, and plaintiff contended that the defendant was precluded from raising the point because it had participated at the hearing and cross-examined witnesses, held that as the evidence of both parties was directed to the issue of service and to none other, the contention that the defendant was precluded was untenable.
    3. Appeal and ebbob, § 1392*—when evidence need not he carefully weighed on appeal. It is not necessary for the Appellate Court to accurately weigh evidence in order to determine whether or not the trial court erred in directing the jury to find for plaintiff.
    4. Cobpobations, § 487*—who are agents for purpose of service of process. To obtain service on a corporation through its officers or agents, such agents must be appointed by the corporation and representing it in some line of employment authorized by its charter.
    5. Trial, § 199*—when verdict should not he directed. A verdict should not be directed by the trial court unless the evidence is free from substantial conflict.
    Appeal from the City Court of East St. Louis; the Hon. Robert Flannigan, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 13, 1917.

      L. V. Walcott, for appellant.
    W. L. Coley, for appellee.

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

   Mr. Justice Boggs

delivered the opinion of the court.

At the January term, 1916, of the City Court of the City of East St. Louis, P. Burger, doing business as the East Side Metal Spinning Company, appellee herein, filed an affidavit in attachment against the St. Louis Bed & Manufacturing Company, appellant, to recover the sum of $288, alleged to be due for a shipment of goods, wares and merchandise.

A writ of attachment was levied by the sheriff on certain articles of appellant, and in making his return he used the following language: “And I have duly served the within writ upon the within-named defendant, The St. Louis Bed & Manufacturing Company, by reading and also delivering a true copy thereof to Boy Burch, office manager of the within-named, The St. Louis Bed & Manufacturing Company.” To this service and the return the defendant filed its special plea in abatement, on limited appearance.

' Later, with the consent of the court, the defendant withdrew its plea in abatement and filed a further plea on limited appearance, denying service according to the statute and setting up that the said Roy Burch was not at the time of the said service in the employ of the appellant. With the pleadings in this condition, a trial was had at the March term, 1916.

At the close of all the evidence, the appellant entered a motion to exclude the evidence and to instruct the jury to find the issues in its favor, which motion was denied. ’ Appellee thereupon entered a motion to instruct the jury to find the issues for the plaintiff. Said motion was allowed and the jury were directed to return a verdict in favor of appellee for $288. The court rendered judgment. To reverse said judgment this appeal is prosecuted.

The principal ground urged by appellant for a reversal of the judgment in this ease is that the court erred in directing a verdict in favor of appellee.

The issue that was being .tried by the jury was as to whether or not Boy Burch, to whom the sheriff read the attachment writ and delivered a copy, designating him as official manager of appellant, the St. Louis Bed & Manufacturing Company, was the agent of appellant, and the evidence offered with the exception of the statement of the account sued on was all on that issue.

Appellee’s counsel practically admits this in his brief wherein he says: “Defendant (appellant here) did not move to quash the sheriff’s return, but filed a special answer and put in issue whether or not Roy Burch, styling his agency ‘office manager’ of the defendant, upon whom the sheriff served the writ, was its agent. On this staté of the pleadings a trial was had. ”

The record discloses that prior to the institution of this suit appellant, St. Louis Bed & Manufacturing Company, having become involved financially, a meeting of its creditors was called, at which meeting it was determined by a large majority of the creditors that steps should be taken to have appellant assign and transfer to a “creditors’ committee” all of its assets to be by said creditors’ committee disposed of for the benefit of its various creditors. The record further discloses that thereafter on the 8th day of June, 1915, an assignment was made by appellant to a creditors’ committee selected by a majority vote of its creditors. This committee then placed in charge of the plant of' appellant one Walter Goodwin, who in turn employed the said Boy Burch. Burch it seems was in charge under said creditors’ committee of the business theretofore conducted by appellant in the City of East St. Louis, and was so acting in said capacity at the time of the purported service made by said sheriff. There is practically no conflict in the testimony in regard to the position of Boy Burch. Practically all of the evidence tends to the effect that he was not office manager, clerk or agent, in any capacity whatever for appellant at the time of said purported service. The evidence all being to the effect that the business that had at one time been conducted by appellant had been taken over by said “creditors’ committee” and that Burch’s employment was by said committee, and not by appellant.

We therefore hold that Burch was not an agent of appellant and that the attempted service on appellant, through Burch, as its office manager was void.

To obtain service on a corporation through its officers, or agents, such agents must be appointed by the corporation and representing it in some line of employment authorized by its charter. Barnard v. Springfield & N. E. Traction Co., 274 Ill. 148; Chicago, B. & Q. R. Co. v. Weber, 219 Ill. 372.

It is contended by appellee that appellant is not in a position to urge this objection for the reason it is insisted that appellant appeared by counsel and took part on the hearing and cross-examined the witnesses of appellee and offered testimony in chief on its behalf. An examination of the record discloses that appellant limited its appearance for the purpose of filing the plea or answer putting in issue the question of the agency of Burch, and the evidence offered by both parties was directed to that issue and to none other. The contention of the appellee that appellant is foreclosed from raising the question as to the agency of Burch is not well taken.

It is not, however, necessary for us to accurately weigh evidence in order to determine whether or not the trial court erred in directing the jury to find the issues on the merits, in favor of appellee, as the law is, that if there is any evidence in the record fairly tending to support the case made by the opposite party, that it is the duty of the trial court to allow the jury to pass on all the controverted questions of fact. Paton v. Stewart, 78 Ill. 481; Bailey v. Robison, 233 Ill. 614; Libby, McNeill & Libby v. Cook, 222 Ill. 206.

It is further the law that a verdict should not be directed by the trial court unless the evidence is free from substantial conflict. Chicago City Ry. Co. v. Martensen, 198 Ill. 511; Hartley v. Chicago & A. R. Co., 197 Ill. 440.

Appellant also contends that the court erred in refusing to direct a verdict in its favor at the close of all the evidence in the case on the motion made by "it at said time. We are of the opinion that the court should have allowed said motion and should have directed a verdict in appellant’s favor on the issue being tried before the jury.

For the error in the court failing to direct a verdict in favor of appellant and directing a verdict in favor of appellee, this cause is reversed and remanded.

Reversed and remanded.


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    West Frankfort Bank & Trust Company, Appellee, v. Joe Barretti and Barney Tonazzi, Appellants.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Banks and banking, § 119

      —when evidence sufficient in action hy hank to recover money entered on pass hook hy mistake. In an action by a bank to recover money which through mistake had been entered on the pass book of defendants, where it appeared that the amount was deposited by another depositor and the error was not discovered until almost a year after it was made, and after the partnership of the defendants had been dissolved, their business sold out and the balance checked out to their credit, evidence held sufficient to sustain a verdict in favor of plaintiff.
    2. Assumpsit, Action of, § 48*—when for money had and received lies. Money paid by one to another by mutual mistake of facts may be recovered back in an action of assumpsit under the count for money had and received.

      Appeal from the Circuit Court of Franklin county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by West Frankfort Bank & Trust Company, plaintiff, against Joe Barretti and Barney Tonazzi, defendants, to recover money erroneously credited to the account of defendants. From a judgment for plaintiff for $501.30, defendants appeal.
    R. E. Hickman, W. P. Seeber and John E. Hamlin, for appellants.
    William H. Hart and William W. Hart, for appellee.

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

3. Assumpsit, Action op, § 44*—when for money had and received lies. Assumpsit for money had and received may be maintained whenever the defendant has obtained money belonging to the plaintiff which in equity and good conscience he has no right to retain, as in such case the law implies a promise to pay.

4. Banks and banking, § 119 —when deposit slip is admissible in action by bank to recover money erroneously credited in pass book. In an action by a bank to recover money credited by mistake to a depositor in his pass book instead of entering such deposit in the book of the depositor who made the deposit, held that the deposit slip showing a deposit by such other depositor was properly admitted in evidence, it being a part of the. res gestw.


text:
    M. E. Thorne, Appellee, v. Southern Illinois Railway & Power Company, Appellant.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by M. E. Thorne, plaintiff, against the Southern Illinois Railway & Power Company, defendant, to recover damages for the killing of a cow. From a judgment for plaintiff for $75, defendant appeals.
    Whitley & Combe, for appellant; Marsh, Stilwell & Finney, of counsel.
    A. E. Somers, for appellee.

      Abstract of the Decision.
    1. Street railroads, § 144

      —when instructions in action for death of animal are erroneous as invading province of jury on question of contributory negligence. In an action against an interurban street railway company to recover damages for the killing of a cow, where it appeared that the cow was tied with a long rope to a tree in a yard of the plaintiff, in .such a position that the animal could go from such yard to the adjacent street and onto the track on the defendant’s right of way, and that as the defendant’s car was approaching, the motorman, who saw the cow some distance ahead, cut off the power and applied the air brake and then released the brake and permitted the car to coast towards the cow until within about six or eight feet of her, when she turned or backed onto the track and was struck, and where instructions were given that, even though the jury believed that the plaintiff permitted the cow to be tied in the front yard of the plaintiff with a rope of sufficient length so that she could get onto or near the track of the defendant, such action would not in law amount to such contributory negligence as would prevent a recovery, provided the jury further believed that the plaintiff was otherwise entitled to recover, but that the jury might take into consideration all the facts and circumstances shown in evidence in making up their verdict, held that such instructions were erroneous as they took from the jury the question of contributory negligence.
    2. Instructions, §' 120*—when refusal proper. The refusal of instructions stating correct principles of law, which, however, are not applicable to the facts of the case, does not constitute error.

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

   Mr. Justice Boggs

delivered the opinion of the court.


text:
    Harry Haynes, Appellee, v. Saline County Coal Company, Appellant.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Workmen’s Compensation Act, § 2

      —when notice by employer of election not to pay compensation is sufficient. In a personal injury case by a miner against a coal company, where plaintiff offered a certified copy of the notice filed by the defendant with the Industrial Board of its election not to pay compensation, held that such notice sufficiently identified the act by its title, and it was therefore sufficient, even though containing an erroneous recital as to the date the act took effect.
    2. Workmen’s Compensation Act, § 12*—when proof of posting of notice of election of employer not to pay compensation is waived. In the absence of a special plea denying the allegations of the declaration that the employer has elected not to pay compensation under the Workmen’s Compensation Act, proof as to the execution, filing and posting of notice as to such election is waived.

      Appeal from the Circuit Court of Saline county; the Hon. A. W. Lewis, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed April 13, 1917.
    Statement of the Case.
    Action by Harry Haynes, plaintiff, against the Saline County Coal Company, a corporation, defendant, to recover damages for personal injuries sustained while working in defendant’s coal mine. From a judgment for plaintiff for $2,250, defendant appeals.
    Whitley & Combe, for appellant; Warren Nichols, of counsel.
    D. F. Rumsey and J. B. Lewis, for appellee; H. Robert Fowler, of counsel.

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

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

   Mr. Justice Boggs

delivered the opinion of the court.

3. Mines and ' minerals, § 85*—what constitutes an unsafe condition of working place of which mine operator has notice. In a personal injury case by a miner against a coal company, where the injury was caused by falling coal, and where it appeared that a “slip” in the vein of coal was in existence in the room where plaintiff was at work, but unknown to him, and that falls of coal had occurred in several rooms when the slip was reached, and that coal was likely to fall when such slip was reached, held that the presence of such slip was sufficiently brought to the notice of defendant and its officers, .and that it constituted an unsafe condition, and that the jury were warranted in finding that the defendant was negligent in not bringing such condition to the attention of plaintiff.

4. Mines and minerals, § 188*—when instruction in action for personal injuries to miner is not erroneous as invading province of jury. In a personal injury case by a miner against a coal company, where the injury was caused by falling coal, and where it appeared that a “slip” in the vein of coal was in existence in the room where plaintiff was at work, but unknown to him, and that falls of coal had occurred in several rooms when the slip was reached, and that coal was likely to fall when such slip was reached, held- that an instruction directing the jury that if they believed that at the time of and prior to the injury there existed in the coal a fault or slip of such a character as likely to cause coal to fall, and if such fact was known to the defendant, or could have been known by the exercise of reasonable care and diligence, it was the duty of the defendant to have given warning to the plaintiff, was not open to the objection that it in effect told the jury that the slip in the coal was the proximate cause of the injury and that it was peremptory in character and directed the jury to find that the cause of the accident was the slip in the vein of coal.

5. Instructions, § 81 —when improper because emphasizing features of evidence. Instructions calling the attention of the jury to - particular features in the evidence, and instructing them that they should give consideration "thereto in making up their verdict, are improper.


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    The People of the State of Illinois, Appellee, v. Saline County Coal Company, Appellant.
    1. Penalties, § 8

      —when debt does not He for recovery. In an action of debt to recover the fine imposed by section 4 of the Act to provide for wash rooms in certain employments, etc., in force July 1, 1913 [Cal. Ill. St: Supp. 1916, ¶ 5417,(36)], and providing that upon failure to comply with the provisions of the act any owner or employer shall be deemed guilty of a misdemeanor and, upon conviction, shall be fined, where a judgment was entered against the defendant, the owner of a coal mine, and where the question was whether the penalty could be recovered in an action of debt, said section construed and held that before the amount of the penalty could be ascertained, the owner or employer must first be-found guilty of a misdemeanor, and that therefore an action.of debt would not lie.
    2. Penalties, § 7*—what are remedies for recovery of statutory penalty. At common law an action of debt is the proper remedy for the recovery of a statutory penalty, and where the statute does not in terms declare in whose name the suit shall be conducted, such action must be instituted in the name of the People; but where the statute provides that the violator upon failure to comply with the provisions of the act shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined, the provisions of such act can only be enforced by information or indictment.
    3. Corporations—criminal liability for violation of penal statute. A corporation is subject to prosecution by information for the violation of a penal statute.
    Appeal from the County Court of Saline county; the Hon. Charles D. Stilwell, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed.
    Opinion filed April 13, 1917.
    Whitley & Combe, for appellant; Warren Nichols, of counsel.
    Sam Thompson, for appellee.

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

   Mr. Justice Boggs

delivered the opinion of the court.

This is an appeal prosecuted by appellant from a judgment rendered against it in an action of debt brought by the People of the State of Illinois, to recover the fine imposed by section 4 of an Act entitled, “An Act to provide for wash rooms in certain employments to protect the health of employes and secure public comfort.” Approved June 26, 1913, in force July 1, 1913. Sections 1 to 3 of said Act provide for the maintenance, equipment, operation and inspection of wash rooms by the owner and operator of coal mines. The fourth section of said Act [Cal. Ill. St. Supp. 1916, ¶ 5417(36)] reads as follows: “Any owner or employer who shall fail or refuse to comply with the provisions of this act shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $100.” The fifth section of said Act [Cal. Ill. St. Supp. 1916, ¶ 5417(37)] provides for recovery of successive penalties.

Appellant is the owner and operator of a coal mine in Saline county, and the State’s Attorney of said county instituted said action in debt in the name of the People on account of an alleged violation of said statute. Appellant filed a general demurrer which was overruled and thereafter entered a plea of nil débet. The jury being waived, said cause was heard by the court resulting in a judgment against appellant for $50 and costs.

This act was held.constitutional in the case of People v. Solomon, 265 Ill. 28, and the sole question raised by the appellant’s assignment of errors is-whether or not the penalty provided for in said statute can-be recovered in an action of debt. At common law, an action of debt is the proper remedy for the recovery of a statutory penalty. Amer. & Eng. Encyc. Law (1st Ed.) vol. 18, p. 274. And where the statute does not in terms declare in whose name the suit shall be conducted, the recovery of the penalty for its violation must be brought by suit instituted in the name of the People. Same authority, page 276. To the same effect is Vaughan v. Thompson, 15 Ill. 41; Durbin v. People, 54 Ill. App. 101.

The question, however, in this case is whether , or not the statute has not by its terms fixed the method by which the penalty or fine is to be determined. The language being that “Any owner or employer who shall fail or refuse to comply with the provisions of this act shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $100.” In other words, the provision of the statute is that before the amount of the penalty can be ascertained, the owner or employer must be found guilty of a misdemeanor.

The wording of this statute differs materially from the wording of the statutes where actions of debt have been maintained for the recovery of penalties for their violation. In those statutes where it has been held that an action in debt will lie, it will be° found that the penalty was fixed by the statute and the method of recovery was not provided for. Town of Jacksonville v. Block, 36 Ill. 507; Durbin v. People, supra; Vaughan v. Thompson, supra.

It is strenuously urged by appellee that if a recovery cannot be had against appellant in an action of debt, the penalty cannot be enforced for the alleged reason as claimed by appellee, that appellant being a corporation is not subject to prosecution by information and cannot be fined. Appellee is wrong, however, in its conclusion that appellant being a corporation is not subject to prosecution by information for the violation of a penal statute. Chicago, W. & V. Coal Co. v. People, 214 Ill. 421; People v. City of Chicago, 256 Ill. 558.

In the case of Chicago. W. & V. Coal Co. v. People, said coal company was indicted by the grand "jury of Cook county for a violation of section 46 of the Criminal Code and was found guilty and fined by the Criminal Court of Cook county, and on appeal the Supreme Court affirmed the judgment.

In the case of People v. City of Chicago, supra, information was filed in the name of the People for violation of the woman’s ten-hour law as amended in 1911, and the power to prosecute the city under an information was directly raised. The court at page 562 says: “It is further contended by plaintiff in error that the City of Chicago, as a municipal corporation, cannot be guilty of a criminal offense, and that an indictment or information will not lie against it for a violation of this statute. * * In securing the performance of specific duties imposed upon municipal corporations, the State has the same power of coercion and the same method of redress for nonperformance as in the case of individuals or purely private corporations. It would be a peculiar condition of affairs if a State could exact obedience from its citizens, fine and imprison them for violations of law, and at the same time be powerless to secure obedience to the same laws by the entity which derived its being from the State itself. To obtain this result there is no weapon so effective as criminal procedure by way of indictment.”

It is further to be observed that in order to convict the owner or employer under the provision of said section 4, an. indictment must be returned or information must be filed against appellant, and in order to convict it of a misdemeanor its guilt must be proved beyond a reasonable doubt. If an action of debt can be maintained for the recovery of a fine against appellant for a violation of said statute, then all the People would be required to do would be to prove the defendant guilty by a clear preponderance of the evidence. In other words, by the method adopted by appellee, the quantity of evidence in order to conviction is materially less than would be necessary if the proceeding was carried on by way of information or indictment. That an information is a proper proceeding in which to enforce the provisions of this statute has been passed upon in the case of People v. Solomon, supra, and we hold that by information or indictment is the only way its provisions can be enforced.

• For the reasons above stated the judgment will be reversed.

Judgment reversed.