author: Mr. Justice Chateaus

text:
    James P. Monahan, Administrator, Appellee, v. Fidelity Mutual Life Insurance Company, Appellant.
    Gen. No. 14,469.
    1. Insurance—when incontestable clause becomes effective. Notwithstanding it is provided in the contract • of insurance that a policy shall not become binding until actual payment of the final premium, yet the policy (the first premium having been actually properly paid) becomes effective for all insurance purposes and the incontestable clause operates from the day of its date.
    2. Insurance—when forfeiture clause is self-executing. A provision which specifies that “if any premium be not paid when due * * * this policy shall be void until duly re-instated,” is self-executing, but such a forfeiture incurred, as well as the right to declare a forefeiture, may be waived.
    3. Insurance—effect of waiver of forfeiture. Upon the waiver of a forfeiture incurred the parties are restored to their original rights and the performance proceeds under the old contract, a novation not being deemed to have been entered into.
    4. Insurance—when running of limitation of incontestable clause not tolled. If a policy is provided to be incontestable after the lapse of a stipulated period, the fact that during such period a forfeiture has been incurred and waived, does not toll the running of such limitation.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed April 20, 1909.
    Wheeler, Silber & Isaacs, for appellant; Martin J. Isaacs, of counsel.
    Samuel B. King and Jule F. Brower, for appellee.
   Mr. Justice Chateaus

delivered the opinion of the court.

A judgment was recovered ag’ainst appellant, the Fidelity Mutual Life Insurance Company, of Philadelphia, Pennsylvania, for $3,275, by appellee, James P. Monahan, as administrator of the estate of Patrick H. Fay, deceased. This appeal by the Insurance Company brings up that judgment for review. The action was assumpsit on an insurance policy upon the .life of the decedent. Various defenses were interposed by the company, but it is not necessary for us to consider these, because the policy contains a clause as follows: “If this policy shall have been in continuous force after two years from the date hereof, it shall, in the event of the death of the insured, be incontestable for the sum payable hereunder, except for non-payment of premium.” The policy bears the date of September 30, 1903. The company advanced no defense of which it could avail itself if the policy had been in force for two years continuously when Patrick H. Fay died. He died October 19, 1905.

In order to avoid the effect of the above quoted provision in the policy appellant contended: First, that the policy had not been in force two years when Fay died. This contention was based upon the circumstances that, while the policy was dated September 30, 1903, it was, in fact, not issued and delivered until October 30, 1903. Second, it was contended that, should it be considered that the policy had been in force two years, yet there was no liability, because the policy had not been in force continuously for two years. This contention was based upon the fact that the second premium, payable September 30,1904, was not paid until October 1, 1904. These same contentions are now made in this court.

It appears that under date of September 22, 1903, Patrick H. Fay made a written application for the issuance of the policy of insurance involved, which application is attached to the policy. In the application we find provisions that: “the policy issued herein shall not become binding on the company until the first payment due thereon shall have been actually received by the company or its authorized agent during my lifetime and good health,” and that “if the necessary payments be made to keep said policy in force, it shall, in the event of my death, be incontestable for the sum payable hereunder, after two years”. In the policy itself we find, in addition to the provision first above quoted, the following provisions: that “This contract is made in consideration of the written application of the above-named insured, which is made a part hereof * * * and the payment in advance to said company of one hundred sixty two and 93/100 dollars on the delivery of this policy, and thereafter * * * upon the thirtieth day of the month of September in every year until the premiums for twenty full years shall have been duly paid to the said company”; that this contract “shall not be operative or binding until the actual payment of the initial premium, and delivery of the policy, during the life time and good health of the insured”; that “If any premium be not paid when due e * * this policy shall be void until duly reinstated during the life time and good health of the insured”, and that “This policy shall continue in force only during the period actually paid for”.

There is some uncertainty as to when the initial premium was paid. No one testified as to when it was paid. A receipt, countersigned by the company’s president and treasurer, under date of October 2,1903, was introduced, showing the payment of that premium. There is no question that the policy was not delivered by the company to the insured until October 30, 1903. The premium for the year 1904 was paid to the company’s agent, in Chicago, on October 1, 1904, and he issued a receipt therefor, which receipt was signed by both the company’s president and its treasurer. The premium for 1905 was paid on September 16, 1905.

Appellant takes the position that, under this contract of insurance, time began to run, as between the parties, on October 30, 1903, and not on September 30,1903. We cannot take that view. The contract provides that it shall not “become binding . # * * until the first payment due thereon shall have been actually received” during the life time and good health of the insured, and that the contract “shall not be operative or binding until the actual payment of the initial premium and delivery of the policy, during the life time and good health of the insured”. This, as we understand it, means that, unless the initial premium had actually been received and the policy had been issued and delivered during the life time and good health of the insured, the company stipulated that there should, in the first instance, be no contract of insurance between the parties. It provides a point of time, to be fixed by certain acts, prior to which it should not be regarded that a contract existed between the parties; but, it does not provide the point of time whence, after it had become existent, it should have'force and effect and whence the term of insurance therein provided for should have its beginning. The twenty years’ insurance period provided for in the contract began on September 30,1903, regardless of when the initial premium was paid and when the policy was in fact delivered; and the annual premium payments likewise began on September 30, 1903. In the law of contracts, it is elementary that ordinarily a contract speaks from the day of its date, regardless of when it was executed and delivered. It is of common occurrence in connection with deeds, leases and other contracts that, while they are not in effect at all and have no legal existence until delivered, yet, in respect to the date of delivery, they, in point of commencement, relate back or commence in the future. Such relation back or forward contravenes no principle of law and is determined by the intent of the parties as deduced from the instrument itself. From the language used, in the application and in the policy, it is clearly deducible that the parties contemplated that the policy should not become operative and in force until there had been both a payment of the initial premium and a delivery of the policy. But from the same language, strengthened by the existence of the date on the policy, which date was agreed upon by both parties and was placed upon the policy by the company itself, the deduction is equally clear that, the initial premium having been paid and the policy having been delivered, the force and operation of the instrument as an insurance policy upon the life of the deceased was intended to begin with September 30, 1903. Any different interpretation would give no effect to the date of the policy; and under the rules governing the construction of contracts, we must, so long as it is possible, adopt such construction as will give effect to every word within the four corners of the instrument.

Counsel for appellant states it as a proposition that a provision in an insurance policy that the “contract shall not be operative or binding until delivery” is a valid and enforceable provision, and to sustain this proposition cites Kohen v. The Mutual Reserve Fund Life Ass’n, 28 Fed. 705; Dickerson v. Prudential Sav. & Life Ass’n, 21 Ky. Law Rep. 611; 52 S. W. 825; Summers v. The Mut. L. I. Co., 66 L. R. A. 812; McCully v. Phoenix M. L. I. Co., 18 W. Va. 782. We find nothing in that proposition or in those authorities inconsistent with the view above expressed. We hold that, while such proposition is valid, nevertheless a policy such as that here involved will, upon delivery, relate back and have force and operation from the day of its date. Consequently, when the insured died, on October 19,1905, the policy had been in force for two years and more after its date.

The next contention is that the policy had not been in continuous force for two years. This, as' already stated, is based upon the fact that the 1904 premium was not paid on September 30th, when due, but on October 1st, the next day. This contention raises a question as to the nature of the transaction between the parties, in connection with decedent’s default in that payment and the company’s acceptance thereof on the next day. Appellant contends that the acceptance, on October 1, 1904, of the 1904 premium was not “a waiver of a default” but “constituted a reinstatement of the insurance and created for the insured a new period from which the incontestability clause might begin to run. The effect of this reinstatement was to create a new contract of insurance, but founded upon the terms of the old policy.” We cannot agree that a new contract of insurance originated from October 1, 1904, and that a new period of insurance then began, terminating at the time the original policy would have terminated. The very use of the term “reinstatement” negatives such idea. We do not overlook the fact urged upon us by counsel that the policy provides “if any premium be not paid when due * * * this policy shall be void until duly reinstated”. This provision for termination upon non-payment of a premium is undoubtedly self-executing. A forfeiture incurred or a mere right to declare a forfeiture may, equally, be waived. In either case, equally, a restoration of the parties to their original relation may occur. This restoration may be by an express agreement of waiver by the parties or it may even, without intent, arise by operation of law, i- e., by estoppel, where, by reason of some act or conduct it would be inequitable to enforce forfeiture. Termination for breach of a self-executing contract provision is not peculiar to insurance contracts. After such termination and restoration into the original contract relation both parties proceed in the performance under the original contract and not under a new contract that has its inception after the restoration of the relation.

A waiver is, in Perin v. Parker, 25 Ill. App. 465, 468, S. C., 126 Ill. 201, said to be the relinquishment of a known right. The transaction between the parties upon the default or breach of Fay, in respect to making the 1904 premium payment, is more accurately characterized as a waiver of the termination of the original contract, by the company, than as a creation of a new insurance contract. As appears from the evidence, the minds of the parties did not meet, after the default, upon any terms of an insurance contract but upon the question whether, the old contract should be restored or revitalized, that is, whether the termination should be waived by the company, and the policy be reinstated and continued in force and effect. The subject of a' waiver of a forfeiture already incurred, in connection with the non-payment of an insurance premium, was considered in the case of Insurance Company v. Norton, 96 U. S. 234. The court therein said: £ 1 The company was not hound to insist upon a forfeiture, though incurred, but might waive it. ’ In that case a part unpaid of the premium was evidenced by a note which, as well as the policy, contained a provision for the termination of the policy by non-payment ipso facto. After an interesting discussion of the subject the opinion concludes: “the objection, that the note was already past due when the agreement to extend it was made, is not sufficient to prevent said agreement from operating as a waiver of the forfeiture”. Thus it is seen that, from the fact that the policy was already terminated, when the minds of the parties met in respect to the unpaid 1904 premium and that premium was paid, it does not necessarily follow that the contract then entered into was, as a matter of law, a new contract of insurance and not the old one restored. While previous to being restored it was legally dead, yet it was within the legal power of the company to revive it. It appears that, on October 1," 1904, when Fay paid the overdue premium L. F. McCullough, the Chicago representative of the company, asked him, Fay, as required by the company, whether he was in good health and pursuing his usual occupation, to which Fay replied that he was. Thereupon McCullough handed Fay a receipt for the premium as follows:

“The Fidelity Mutual Life Insurance Company.
Beceived $162.93 for annual premium due Sep. 30, 1904, subject to conditions endorsed hereon, under policy of life insurance indicated by number and name.
L. G-. Fouse, President.
O. C. Bosbyshell, Treasurer.
Patrick H. Fay,
728—218 La Salle St., Chicago, Ill.
E. 146059—3.
Countersigned at Chicago, Ill., on the 1 day of October, 1904. L. F. McCullough, Cashier.”

McCullough reported all this to the company immediately and his report was received by the company on October 5th and approved by the president and secretary on October 6, 1904. Upon this state of facts it is clear to us that the parties entered into no new contract of insurance; but the company expressly and intentionally, with full knowledge, waived the default, restored the original contractual relation and consented to the continuance of the policy, including all the rights, privileges, benefits and advantages existing thereunder and thereby, as if no default had ever occurred. Prom this it follows that, owing to this waiver and consent of the company, this policy must be regarded as in continuous force from its date until the death of Pay.

Appellant’s counsel contends that upon the authority of certain cases, particularly Pacific Mutual Life Insurance Company v. Galbraith, 115 Tenn. 471, and Teeters v. United Life Ins. Assn., 159 N. Y. 411, the cessation and determination of a policy under a self-executing provision of forfeiture for non-payment of a premium and its reinstatement by waiver and consent on the part of the company creates a new contract from the date of the reinstatement. It is true the cases cited so hold. But there can be no general rule governing all cases of termination and reinstatement. Whether the insurance after such termination for default and reinstatement is under a continuance of the original contract or under a new contract must, on principle, depend upon the facts in each particular case. Here the acts and conduct of the parties clearly indicate an intent of a continuance of the original contract with its benefits and advantages, including the running of time, to either of the parties. In Goodwin v. Provident Savings Life Assurance Association, 97 Iowa 226, 238, the court held: “Moreover, the reinstatement was not the making of a new contract, for no new or different terms were agreed upon. It was simply the cancellation of a forfeiture, whereupon the contract was restored, and recognized as binding by the company”. The restoration or reinstatement of the relation between the parties here did not create a new contract of insurance nor a new period from which the incontestability clause would begin to run.

The actual transaction between the parties in respect to the 1904 premium and the language of the 1904 receipt indicate a waiver of the forfeiture rather than a new contract. The language of the policy that for non-payment of a premium when due “this policy shall be void until duly reinstated” shows that the contracting parties always contemplated that if there should be a failure to promptly pay a premium when due, yet if payment should later be made the forfeiture might be waived and the policy should then continue in force.

The record is free from error and the judgment must be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Chytraus

license: Public Domain

text:
    E. W. Richmond, Appellee, v. B. M. Hill et al., Appellants.
    Gen. No. 14,476.
    1. Corporations—right of stockholder to examine hooks. A holder of a small amount of stock has as much right to examine the hooks of a corporation as has the owner of a large amount.
    2. Corporations—when denial of examination of hooks proper. It is proper for the officers of a corporation to deny to one having no pecuniary interest in the stock of a corporation the right to examine its books; likewise, it is proper to deny such examination to one acting for a corporation not shown to have the legal authority to own such stock.

      Mandamus. Appeal from the Circuit Court of Cook county; the Hon. M. W. Pinckney, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Rehearing denied May 4, 1909.
    Reversed and remanded with directions.
    Opinion filed April 20, 1909.
    Thoman, Harnwell & Pearsons and Edwin White Moore, for appellants.

      Henry T. Chace, Jr., for appellee.
   Mr. Justice Chytraus

delivered the opinion of the court.

Upon the petition of appellee, the Circuit Court of Cook county granted a peremptory writ of mandamus, directed to appellants, Hair and Hill, the former being president and the latter secretary and treasurer of the Northwestern Yeast Company. From that judgment Hair and Hill are here as appellants. The petition alleges that appellants have the custody of the books, papers and records of the company and that appellee, a stockholder, desired to inspect certain books, records and papers of the company, but was refused an opportunity to do so. By the amended answer, custody of the books,, records and papers by appellants, a demand by appellee upon appellants to see the books and a list of the stockholders, and a refusal of such demand are admitted. The amended answer then, among other things not now material, sets up that appellee is but the apparent and not the real owner of five shares of stock in the Yeast Company; that it is by virtue of his ownership of these shares that he makes his claim of right of inspection; that appellee is an employe of Burnham, Butler & Co., an Ulinois corporation, engaged in business as a stock broker in the city of Chicago; and that Burnham, Butler & Co. on or about November 1, 1907, with its money, bought these five shares of stock and placed them in the name of appellee, who has no interest therein whatever, to hold for it, in order that the true ownership of the shares might be concealed. ' To this answer appellee interposed a demurrer and thereby, for present purposes, admitted the truth of the statements in the answer.

It is the duty of officers and directors of corporations to serve the stockholders, as the beneficiaries of their trust, not only honestly and faithfully but without concealment and secrecy. The relation between them is a fiduciary relation. A stockholder owning but a few of the shares of the corporation’s capital stock is no more to be shut ont by its officers from knowledge and information relating to the conduct of its business, than is one holding a majority of its stock. The proposition that officers may conceal or secrete information no more from the minority than from the majority of the stockholders is so obviously true that it needs but to be stated to be admitted by every reasonable and impartial mind. It is held in Stone v. Kellogg, 165 Ill. 192, 205, that the shareholder in a corporation is not required to show any reason or occasion rendering an examination by him of the corporation’s books and papers opportune and proper, or that it is for a definite or legitimate purpose, in order to be entitled or permitted to make inspection or examination thereof. At the same time, as is also there held, the right of inspection and examination must be exercised at reasonable and proper times and the inspection or examination cannot be from merely idle curiosity or for any improper or unlawful purpose. “In all other respects the statutory right is absolute.” The custodian of the books and papers cannot question or inquire into the stockholder’s motives and purposes. “If he has reason to believe that they are improper or illegitimate, and refuses inspection on this ground, he assumes the burden to prove them such. ’ ’

We are of the opinion that, in the case at bar, appellants, by their answer, presented a good and sufficient reason for not permitting an inspection and examination of the Teast Company’s books and papers by appellee. They undertook the burden of establishing the reason by evidence; but the interposition of the demurrer rendered evidence unnecessary. Appellee admittedly has no pecuniary interest in the Teast Company. His examination would, necessarily, be made either out of idle curiosity, if not for some worse purpose, or as the agent and representative of Burn-ham, Butler & Co. The former purpose does not permit, under the law, an examination. As the representative of Burnham, Butler & Co. he can obtain no aid from the courts, through a writ of mandamus, to make such examination, for it is unlawful for Burnham, Butler & Co. to own any stock in the Yeast Company. In Illinois it is well settled that one corporation cannot, as a general rule, hold stock in another. Dunbar v. American Telegraph Company, 224 Ill. 9. One exception to that general rule, however, is when the corporation’s charter permits the corporation to own and hold stock in other corporations. If Burnham, Butler & Co. possesses such charter power it may be pleaded in reply. Without proof of such power the Circuit Court could not, on the record now before us, issue the writ of mandamus prayed for. The judgment of the Circuit Court is reversed and the case is remanded with directions that the demurrer interposed to respondents’ answer be overruled and for further proceedings as may not be inconsistent with this opinion.

Reversed and remanded with directions.


text:
    Albert C. Banker, Appellee, v. J. Marion Miller et al., Appellants.
    Gen. No. 14,883.
    1. Appeals and ebbobs—when hill of exceptions not stricken. If a bill of exceptions has been presented to the trial judge for signature in apt time, his failure to sign and seal the same within the time provided for the filing thereof, and the fact that the same was not actually filed within such time, is immaterial.
    2. Appeals and ebbobs—when dismissal not awarded. If the bill of exceptions is stricken from a record a dismissal of the appeal will not be awarded, as the record which remains affords the basis for assignments of error.
    Trespass on the case. Appeal from the Municipal Court of Chicago; the Hon. John H. Hums, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Motions denied
    Opinion filed April 20, 1909.

      John Humphrey, for appellants.
    Howard Ames, for appellee.
   Mr. Justice Chytraus

delivered the opinion of the court.

This action is one of trespass on the case. On June 18, 1908, a judgment was rendered in the Municipal Court against defendants there, appellants here, for $750. At the time of the rendition and entry of the judgment appellants were allowed an appeal to this court. So far as now material the order entered by the court was as follows: “Whereupon the defendants, by their counsel, # * # pray an appeal from the judgment of this court to the Appellate Court of the First District of Illinois, which appeal is allowed by the court, conditioned upon the defendants filing their appeal bond herein in the penal sum of twelve hundred dollars in thirty days, together with the bill of exceptions in forty days. ’ ’ On July 27,1908, a bill of exceptions was presented to the trial judge and he marked it presented on that date, as appears on the record, under his signature. It also appears, from the recital in the record and the clerk’s file mark upon the bill of exceptions, that the bill of exceptions was filed on August 3,1908. Nothing else being shown, the only legitimate inference is that the unsettled bill of exceptions was presented and left with the trial judge, on July 27, 1908, and that he retained it for the purpose of inspection and examination. There is nothing upon the record to suggest that either before or after being left with the trial judge for settlement, it was withdrawn by any one. The trial judge either found it correct or made such changes or corrections as he deemed right and signed and sealed it, as appears, on July 30, 1908, and then, on Monday, August 3, 1908, caused it to be marked filed by the clerk. It is urged that the bill of exceptions should be stricken from the record because it was not filed within the time conditioned in the order allowing the appeal and it is also urged that the bill being stricken the appeal must be dismissed with statutory damages. No authority has been presented in support of the motion and nowhere do we find any authority justifying such practice as that urged upon us. In Underwood v. Hossack, 40 Ill. 98, this precise situation came before the Supreme Court. It was there held that when a party presents his bill of exceptions to the trial judge in due time he is not to be prejudiced because the judge may not actually sign the bill until after the time so fixed has expired and, furthermore, that the bill having been signed by the trial judge it will be presumed that it was presented to him in due time. “The mere fact that it was not filed within the time, does not rebut that presumption; but the defendant is at liberty to do so by showing such not to have been the fact; until that is done, the bill of exceptions will be regarded as having been filed in good time.” In that case the file mark showed the bill of exceptions to have been filed after the expiration of the time allowed for the filing. We know of no decision of the Supreme Court overruling that case, hence we are obliged to regard the question settled as a rule of practice in this state. The case was approved of in Hawes v. People, 129 Ill. 123, 127; Olds v. North Chicago St. Ry. Co., 165 Ill. 472, 474, and People v. Hawes, 25 Ill. App. 326. In the case at bar there is, in addition to the presumption that it was presented in due time, the memorandum of the trial judge showing that to be a fact. The bill of exceptions was left with the trial judge on July 27th, and the time for filing expired with July 28th. The trial judge having received it before the expiration of the time for filing, it became his duty to act upon it in time or to extend the time previously allowed. Practically, the party had no means whereby to compel bim to act in time.

We cannot in this case say, as was said in Hall v. Royal Neighbors, 231 Ill. 185,192, that “the failure to file the bill of exceptions was chargeable solely to the attorney who had possession of it.” The conclusion in that case was predicated upon the facts of that case. We cannot regard the decision in that case as overruling Underwood v. Hossack, so long as it neither expressly nor necessarily does so. It is a wholesome, necessary and imperative rule of law that no party will be prejudiced by any delay or neglect of the court. In Ferris v. Commercial Nat. Bank, 158 Ill. 237, 239, our Supreme Court quotes and approves of the rule in the United States Supreme Court in that regard as follows : ‘ ‘ The rule is, that where a party moves in apt time he shall not be permitted to be injured by the delay or neglect of the court to act, but will be protected in his rights by a nunc pro tunc order or otherwise.” Undoubtedly, if appellant had moved the trial judge to act in this matter that learned judge, having a due regard for his position and his duty, would have heard appellant upon a motion and directed the filing of the bill of exceptions as of the day when, according to his own memorandum, it was presented to him, namely, July 27,1908. No judge would endeavor to defeat, obstruct or prevent a review of his rulings or decisions. The motion to dismiss, made in connection with the motion to strike, is, evidently, made without due consideration by counsel. Even though the motion to strike were allowed, a record would remain whereupon it would be possible to predicate error and whereupon appellant would be entitled to be heard.

Appellee’s attorney has moved this court for leave to file affidavits showing what has taken place in court and out of court in respect to the bill of exceptions and the settling thereof, in support of his motion to strike. This court cannot inspect affidavits with reference to such matters. We cannot go outside the record in regard to what has occurred in the court below, respecting a case before ns on review, whether the matters occurred before or after the disposal of the case, Moore v. Williams, 132 Ill. 591, 594; except in some instances where matters subsequently occurring may be pleaded here.

The motions aforesaid will all be denied.

Motions denied.


text:
    John Bairstow, Executor, Appellant, v. New York Life Insurance Company, Appellee.
    Gen. No. 14,487.
    1. Appeals and ebbors—how appeal must he perfected. The effectiveness of the procedure in completing and perfecting an appeal depends wholly upon compliance with the requirements of the statute authorizing it.
    2. Appeals and errors—when appeal bond should he filed. If the order providing for the filing of an appeal bond does not specify the time within which it shall be filed, the same should be filed within 20 days from the date of the order.
    3. Appeals and errors—when appeal hond filed too late. If an appeal bond be not filed within the time required or implied from the order, or within such further time as is granted by order entered within the time provided in the original order for the filing thereof, or within such time as may be further fixed by the court at a time when it has jurisdiction over the judgment, it is too late.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Appeal dismissed.
    Opinion filed April 20, 1909.
    Charles B. Stafford, for appellant.
    O’Bryan & Marshall, for appellee.
   Mr. Justice Chytraus

delivered the opinion of the court.

This suit was brought in the Municipal Court of Chicago, in assumpsit, as one of the first class. The suit is upon a life insurance policy upon the life of James Bairstow who died May 16, 1906. There was a trial before a jury and the court directed a verdict for the defendant. Upon that verdict a judgment was rendered and from that judgment this appeal is prosecuted.

The judgment was entered on January 4,1908, and at the same time this appeal was prayed. The prayer for an appeal being then allowed the following order was entered: “Thereupon the plaintiff by his counsel having entered his exceptions herein, now here prays the court for an appeal from the judgment of this court to the Appellate court for the First District of Illinois, which motion is allowed by the court conditioned upon the plaintiff filing herein his appeal bond in the penal sum of two hundred and fifty dollars ($250), together with his bill of exceptions in pursuant to the statutes.”

Thereafter nothing was done in the suit or in the prosecution of the appeal until on February 14, 1908, when the following order was made and entered:

“This day come the parties and thereupon file their stipulation herein, wherein ‘it is hereby stipulated and agreed that the time to file bond and the report of proceedings in this case, and to file record in Appellate Court, be extended thirty days from the time heretofore allowed, if this stipulation confers jurisdiction’ and it is ordered by the court that the time for filing bond and the report of the proceedings herein be and the same is hereby extended thirty days after February 4th, A. D. 1908, accordingly.”

On February 28, 1908, an appeal bond was filed and approved and on March 3,1908, the record was filed in this court.

Appellee has entered a motion herein for a dismissal of the appeal, because of lack of jurisdiction in this court to hear it. In substance two grounds are advanced: (1) that the appeal was not perfected by the filing of an appeal bond in time so as to give this court jurisdiction, and (2) that this court failed to obtain jurisdiction of the appeal because no authenticated copy of the record was filed in the office of the clerk of this court within forty days of the entry of the judgment appealed from, as required by section 22 of the Municipal Court Act as amended in 1907, nor was any order entered in the Municipal Court extending the time for filing such authenticated copy.

An appeal is a statutory proceeding. The statute is the sole source of the existence of the right to appeal and the effectiveness of the procedure in completing and perfecting the appeal depends wholly upon compliance with the requirements of the statute authorizing it. Fairbank v. Streeter, 142 Ill. 226, 232; O. & M. R. R. Co. v. Lawrence County, 27 Ill. 49, 53. Failure to file the appeal bond within the time limited by the court is fatal to the appeal. Hill v. Chicago, 218 Ill. 178; Pardridge v. Morgenthau, 157 Ill. 395; Heyer etc. v. The Hanson & Van Winkle Co., 92 Ill. App. 226, 227. A motion, for an extension of time, made after the expiration of a period of time previously allowed, comes too late, unless made within the time when the court has jurisdiction of the judgment itself. When, on January 4th, the appeal was prayed, the court made no allowance of time for the filing of a bond except by reference to the statute. Section 22 of the Municipal Court Act provides that, unless otherwise provided, the practice upon appeal from the Municipal Court shall be the same as upon appeal from the circuit courts. There being in that Act no provision as to the time within which the appeal bond must be filed we necessarily resort to the general practice act. We find there, in section 92, that the party praying an appeal “shall, within such time, not less than twenty days, as shall be limited by the court, give and file” a bond. In order to give effect to the order of the Municipal Court in the case at bar, no time whatever being specified, we must and do assume that twenty days, the least period the statute allows, was given to appellant within which to perfect his appeal by giving a bond. No bond was filed within that period of time and when, on February 14, 1908, an application for an extension of time, within which to file a bond, was made the court had lost jurisdiction by the lapse of time. The bond filed and approved on February 28, 1908, did not give this court jurisdiction.

Section 22 of the Municipal Court Act provides that an authenticated copy of the record, in case of appeal, shall be filed in the office of the clerk in this court within forty days after the entry of the judgment appealed from. In the case at bar the record was not filed until March 3, 1908, more than forty days after the entry of the judgment. The point is made by counsel for appellee, in his motion 'to dismiss, that, therefore, this court has no jurisdiction; but we refrain from expressing ourselves upon that point. The reasons for our so refraining are that, first, it is not necessary, for the motion to dismiss has been sustained on another ground, and, second, although a different provision of the statute is here in question, yet the principle of the case of Clowry v. Holmes, 238 Ill. 577, may be involved. This court does not pass upon questions involving the validity of statutes. But when the Supreme Court has declared the law upon any such question this court follows the law as so declared.

This appeal must be dismissed because no bond was given and filed in time.

Appeal dismissed.


author: Mb. Justice Chytbaus Mr. Justice Baker

text:
    Maggie Garrity et al., Appellees, v. Catholic Order of Foresters, Appellant.
    Gen. No. 14,516.
    1. Evidence—what competent upon the meaning of words. It is competent for a witness to testify to the meaning of a term used in his trade, profession or occupation.
    2. Fbatebnax, benefit societies—when certificate void. If contrary to the provisions of the by-laws a deceased member changes his occupation to one of those of the prohibited class, and a consequent loss of membership being made self-executory by the contract of insurance, a recovery upon such certificate (the death of the member occurring while engaged in such prohibited occupation), cannot be sustained.
    3. Instructions—when as to meaning of words erroneous. It i^s error to instruct the jury to look to the evidence for the “ordinary and usual” meaning of words and terms; the meaning of words and terms is a matter for the determination by the jury upon their own knowledge, information and experience independent of evidence or instruction.
    Bakbb, J., dissenting.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. W. H. McSubely, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed.
    Opinion filed April 20, 1909.
    Edmund S. Cummings, for appellant.
    Pease, Smietanka & Polkey, for appellees.
   Mb. Justice Chytbaus

delivered the opinion of the court.

Appellant is one of the class of organizations known as fraternal benefit societies. Appellees, beneficiaries named in a membership or benefit certificate of appellant issued to Benjamin Garrity, their deceased brother, brought an action of assumpsit against appellant in the Superior Court of Cook county and obtained a verdict and judgment for $1,000. This appeal is from that judgment.

It appears that the Order through its court No. 291, called St. Joseph Court, on May 23, 1901, issued to Benjamin Garrity a certificate of membership whereby it promised, upon his death, to pay to Maggie and John Garrity, his sister and brother, the sum of $1,000. It is stated in the certificate that the promise is “subject to the express conditions and stipulations” therein set forth. Among the conditions set forth we find the following:

“4. The Constitution and By-Laws governing the Catholic Order of Foresters and the said Court at the time of the initiation into the said Court of the person to whom this certificate is issued and all amendments, additions or alterations that may be made thereto at any time during the continuance of this certificate or at any time prior to the death of said person are declared to be a part of this contract.”

At the bottom of the certificate and below the conditions and stipulations aforementioned, an acceptance, signed by Benjamin Garrity, appears as follows: “I accept this certificate on the conditions hereinabove named and assent thereto, and agree to comply therewith. (Signed) Beet Garrity, Member’s signature.”

After the issuance of the above mentioned membership certificate the constitution, laws, rules and regulations of the Order were amended so that the membership, previously consisting of one class, was divided into three classes, according to occupation, viz: the prohibited class, the hazardous class and the ordinary or regular class. Regarding the amendments to the by-laws of the Order it was stipulated at the time of the trial that:

“On and 'after January 1, 1904, the following provisions of said constitution, laws, rules and regulations became effective and were in full force and effect .at the time of Garrity’s death:
See. 213. Persons engaged in any of the following occupations shall not be eligible to regular membership in the Order: Aeronaut; anthracite coal miner; blaster in mines, tunnels and quarries; circus riders; professional acrobats, prize fighters; professional base ball or foot ball players; professional cyclists; professional outside window washers; professional divers; trapeze performers; professional chauffeur or automobile racer; railroad switchmen in yards; switch-men, except in towers, in cities of 10,000 population and upwards; railroad brakemen * * * and all other persons whom the High Court shall deem to be engaged in occupations of like hazard as those herein prohibited.
Sec. 214. Persons engaged in any of the following occupations shall be eligible to regular membership in the hazardous class only: Officers, members of crew and other employes of ocean or inland steamers, or sailing vessels, oyster dredgers; railway trainmen, namely: conductors, passenger brakemen, expressmen, baggage men, news agent, porter, mail clerks, engineers, firemen and all other employes whose occupation requires them to go upon moving trains, either freight or passenger; railway employes, namely: yard masters, yardmen, track repairers in cities * * * and all other persons whom the High Court shall deem to be engaged in occupations of like or equal hazard.
Sec. 217. Any member of the Order who changes his occupation from either the ordinary or hazardous class to the prohibited class, shall by that ■ fact lose his membership in the Order.
Sec. 218. Persons not engaged in any of the occupations specified in Sections 213 and 214 shall be eligible to regular membership in the ordinary class, excepting those who may be considered in the hazardous or prohibited classes by the High Court.”

Benjamin Garrity was killed on June. 26, 1905, while coming from McCook to Gary on the Chicago & Illinois Western Bailroad. At the time he was killed he was, in the course of his employment, standing on the foot board of a locomotive with which he was connected and which was used in switching operations in connection with his work. The particular locomotive had a foot board in front and one in the rear, but the evidence does not disclose upon which one decedent stood when killed. In some manner, not made clear in the evidence, he was killed by the foot board striking something while the locomotive was out on a main track passing a place where the track was being graded. The contract between appellant and Benjamin Garrity is plain and unambiguous to the effect that if, after its issuance to him, he changed his occupation and entered into any employment in which he would be engaged in the occupation, and thus hazard the risks, of a railroad switchman in a yard, meaning of course a railroad yard, he would, by that fact alone, lose his membership in the Order., By its terms the contract is made self-executing in this behalf and such self-executing provisions are valid in this state. Indeed there is no contest with reference to the meaning and validity of the contract between the parties. It seems, in a general way, to be contended by appellees that the road was small or it was a private road and there was no railroad yard connected with it, and, furthermore, that decedent was not a switchman or, if he was a switchman, he was not a switchman in a yard. The disposition of the case depends upon the disposition made of these contentions. There is no conflict in the evidence. The attorneys for the appellees argue that in the “usual and ordinary meaning of the term,” decedent was not a railroad switchman in a yard or yards, “hut the foreman of a switching gang”; that “in the usual sense of the term” he was not employed upon a railroad hut rather upon a short piece of track that “provided switching accommodations for the Dolese & Shepard Stone Company”; that he was not in the employ of a railroad but in the employ of a stone company; and, that he was not killed “in a switchyard or in consequence of a railroad switchyard.”

It appears that when the certificate of membership was issued, in May, 1901, decedent was a policeman in Naperville, Illinois, but, in the summer of 1905, prior to his death, he began work on the Chicago & Illinois Western Railroad. During that year the road was in the course of construction. A portion of the road, about three or three and a half miles, lying between Gary and McCook yards, was, however, completed, so that it was operated when decedent was killed. The road had then but one locomotive and the decedent had control of the movements thereof. He was foreman switchman of a crew of two men consisting of himself and the witness John Bull. As the witness Chamberlain puts it: “He [Garrity] handled an engine, a locomotive between Gary and McCook yards.” He also assisted the second switchman in coupling and uncoupling cars and in the ordinary work done by switchmen. The locomotive had an engineer and a fireman besides the two switchmen. It was employed in transferring cars with freight and empty cars back and forth between Gary and McCook and also in doing the switching in what the witnesses call the two yards. At the time in question the road had four switch tracks at Gary, none of them less than 300 feet long and any one of them holding at least ten cars, and was connected there with the Santa Fe railroad. On these tracks crushed stone, quarry and other material which the road delivered, was sometimes stored. The road also delivered stuff for farmers. At McCook there were two tracks, each approximately one-third of a mile long, besides the main track. Other railroads con-, nected there. The switchmen handled the empty and loaded cars, placed them upon the switch tracks and set them out on one of the tracks until they had enough cars to make up the trains. Usually the trains consisted of ten or a dozen cars. This was done at both Gary and McCook. The two tracks at McCook were connected with the main line by four switches. By the uncontradicted testimony of two witnesses, who qualified as experienced men in the operation of railroads, it is shown that a “yard,” in connection with railways, consists of two or more tracks used for the purpose of assembling cars, that is, making up trains, storing cars and switching cars. One of the witnesses testified that such use of the term railroad yard is “universally and clearly known” by railroad men. The testimony of experienced railway men was competent to explain and define what was meant by the term “yard,” in connection with the operation of railways, as used in the contract here involved. Their testimony did not relate to a matter of opinion but to the meaning of a term used in their trade, profession or occupation. In L. & N. R. R. Co. v. I. C. R. R. Co., 174 Ill. 448, 458-9, the Supreme Court held that such terms as “signals” and “switchmen,” used in a contract, might properly be explained by experts. This uncontradicted testimony, with reference to what is meant by a railroad yard, being taken into consideration, there is, upon this record, no room for any conclusion but that decedent had changed his employment and engaged in the occupation of a railroad switchman in yards. We find no merit in the contentions that a foreman switchman, employed as was decedent, is not a switchman; that he was not employed upon a railroad but upon a short piece of track which merely provided switching accommodations for a stone company; that he was not in the employ of a railroad but in the employ of a stone company, and that he was not killed “in a switchyard or in consequence of a railroad switchyard.” There is no question in this case as to whom he was employed by, when killed, but the question is: what was his occupation? The fact that at the moment he was killed he was some three hundred feet outside of a railroad yard is likewise immaterial so long as he, by engaging in the employment which involved his performing the duties of a switchman in a railroad yard, had himself terminated the contract between himself and the Order.

The following instruction, on behalf of plaintiff, was given by the court;

“You are instructed that if you find from the evidence that the deceased, Benjamin Garrity, did not at any time prior to his death enter the occupation of railroad switchman in yards in the ordinary and usual sense and meaning of that term, as shown by the evidence, if it is so shown, then you should find for the plaintiff herein.”

The giving of that instruction was error. There was not, and could not properly be, any evidence introduced as to “the ordinary and usual sense and meaning” of the term railroad switchman in yards. The “ordinary and usual” sense and meaning of words and terms is not a proper subject matter of evidence or instruction; but a matter for determination by the jury upon their own knowledge, information and experience, independent of evidence or instruction. Law suits are not tried upon the idea or theory that the jurors need evidence as to the ordinary and usual sense or meaning of words or terms. The evidence relating to the meaning of the term railroad yard was not admitted upon the theory that the witnesses upon the subject would testify to the “ordinary and usual” sense and meaning thereof but upon the theory that the term “yard” had a particular and specific meaning when used in connection with a particular trade or calling, namely, the operation of railroads. This instruction had a tendency to mislead the jurors, that is, to suggest to their minds that, notwithstanding the evidence in this behalf, the term in question had an ordinary and usual sense and meaning which they, the jurors, might adopt and follow. The suggestion of the instruction is inconsistent with the ruling of the learned trial judge upon the competency and admissibility of the evidence, properly admitted, as to the meaning and definition of the term “yard” in connection with the operation of railroads. In the view taken by us of the case this may not be very material, but it explains the verdict and we desire it to be understood that we disapprove of the instruction.

For the reasons indicated the judgment of the Circuit Court will be reversed and the case will not be remanded.

Reversed.

Mr. Justice Baker

dissenting.

The by-law of the defendant society does not declare that no railroad switchman shall be eligible to membership. It excludes: “Bailroad switchmen in yards; switchmen, except in towers, in cities of 10,000 population and upwards.” Yard switchmen are excluded. All switchmen in towns of more than 10,000 population are excluded except those employed in towers. Ordinary switchmen in towns of 10,000 population or less are eligible to membership. Gary is a town of less than 10,000 population.

The road of the company by which Garrity was employed was in process of construction. The company had only three and a half miles of road in operation; only one locomotive. At Gary were four spur or side tracks leading to bins of the Dolese & Shepard Company, from which various kinds of stone were loaded into cars which were then taken to McCook by the crew to which Garrity belonged. That crew handled some days fifteen or twenty cars, some days ten, some days none.

The words, “Railroad switchmen in yards,” as nsed in the by-law, I think mean switchmen regularly employed in railroad yards, as distinguished from ordinary switchmen who work both in and out of railroad yards, and I think that on the evidence, Garrity was an ordinary switchman and was not one of the class of men called “in the by-law as ‘railroad switchmen in yards’.”